Moussa and Minister for Immigration and Multicultural Affairs - [2001] AATA 904

DECISION AND REASONS FOR DECISION [2001] AATA 904

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/376

GENERAL ADMINISTRATIVE DIVISION       )
           Re      Melissa Moussa
  Applicant
           And    Minister for Immigration and Multicultural Affairs
  Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date1 November 2001
PlaceSydney

Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion to refuse the grant of a visa under s 501(1) of the Migration Act 1958 should not be exercised in the case of Abdul Rahman Moussa.

..............................................
Mr R P Handley
Deputy President
CATCHWORDS
IMMIGRATION – Spouse Visa – character test – past and present general conduct –Visa Applicant lied in original application for visitor visa and subsequently overstayed - migration agent assisted Visa Applicant in application for protection visa in which false and misleading statement was made – Visa Applicant exaggerated claims in application for protection visa but held a genuine and subjective fear of persecution – Visa Applicant not of good character
Exercise of discretion – balancing of primary and other considerations - where best interests of the child and hardship caused to Visa Applicant's spouse outweigh need to protect the Australian community

Migration Act 1958: ss 499(1), 499(2), 499(2A), 501(1), 501(6)(c)(ii)
Migration Regulations 1994: Schedule 2, clause 309.225; Schedule 4, clause 4001
Ministerial Direction No. 21 – Visa Refusal and Cancellation under s 501

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Lachmaiya and Department of Immigration and Multicultural Affairs (1994) 19 AAR 148
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

REASONS FOR DECISION

Mr R P Handley

This is an application by Melissa Moussa ("the Applicant") for a review of a decision of a delegate of the Minister of Immigration and Multicultural Affairs ("the Respondent") made on 7 March 2001 to refuse the grant of a sub-class 309 – spouse (provisional) visa to the Applicant's spouse, Abdul Rahman Moussa ("the Visa Applicant").
At the hearing, the Applicant represented herself and the Respondent was represented by Nathan Cureton, Solicitor, of Blake Dawson Waldron, Solicitors. The evidence before the Tribunal comprised the documents produced pursuant to section 37 of the Administrative Appeal Tribunal Act 1975 ("the T documents"), together with the documents tendered by the parties. Oral evidence was given by telephone by the Visa Applicant and Douha Moussa, and in person by the Applicant, Mohamad Karhani and Addullatif Nachar.
Background

The Visa Applicant, Mr Moussa was born in Lebanon on 3 November 1967 and is aged 33. Mr Moussa arrived in Australia on 17 November 1997 on a sub-class 676 visitor visa valid until 17 February 1998. On 24 December 1997, Mr Moussa applied for a protection visa and was granted a bridging visa without work restrictions. On 25 February 1998, a delegate of the Respondent refused Mr Moussa's application for a protection visa. On 23 March 1998, Mr Moussa sought a review of that decision by the Refugee Review Tribunal ("RRT") and, on 29 September 1999, gave oral evidence at a RRT hearing. On 26 October 1999, the RRT affirmed the original decision on the ground that it was not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. In May 2000, Mr Moussa met the Applicant, Ms Moussa, ne Wilson. Ms Moussa was born in Sydney on 2 April 1970 and is aged 31. She is an Australian citizen and, at the time she met Mr Moussa, she had not been previously married. Ms Moussa has two children: Cameron Arnaout born on 15 October 1993, aged 8, and Chanece Arnaout born on 20 February 1998, aged 3. Her children's biological father is Semir Arnaout.
On 20 June 2000, Mr Moussa was granted a bridging visa class WE on the basis of his joining the Lie class action. On 20 June 2000, Mr Moussa's divorce from his previous wife, Racha Dabliz, was certified. Mr Moussa has three children by Ms Dabliz who live in Lebanon: Jemilla aged 15, Anwar aged 13, and Rachwan aged 8, all of whom live with their mother.
On 22 June 2000, Mr Moussa and Ms Moussa were married in an Islamic religious ceremony and, on 22 July 2000, their marriage was formalised under Australian law. Ms Moussa said that her husband was divorced religiously one year after he entered Australia and some time before she met him. He did not apply for the divorce papers until their relationship had developed to the extent that they wanted to marry.
On 28 July 2000, Mr Moussa returned to Lebanon and, on 15 August 2000, he applied for a sub-class 309 visa based on his marriage to Ms Moussa. On 2 March 2001, he was interviewed by the Principal Migration Officer at the Australian Embassy in Beirut who, on 7 March 2001, acting as a delegate of the Respondent notified Mr Moussa of his decision to refuse the grant of a visa. On 21 March 2001, Ms Moussa lodged an application for a review of this decision by the Tribunal.
RELEVANT LAW

Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6) which provides that a person does not pass the character test if one of a number of grounds are met. The relevant ground in the current matter is paragraph (c), as follows:
Having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii)the person's past and present general conduct;
the person is not of good character;…

Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a sub-class 309 visa. Clause 309.225 requires that, at the time of the decision, the visa applicant satisfied public interest criteria set out in Schedule 4 of the Regulations, including, relevantly, clause 4001 which provides:
Either
(a)the applicant satisfied the Minister that the applicant passes the character test; or
(d)the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.
Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) "does not empower the Minister to give directions that would be inconsistent with this Act or the regulations".
On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No. 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it "provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501" of the Act. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
The issue for the Tribunal to determine in this case is, therefore, whether Mr Moussa is not of good character having regard to his past and present general conduct, so as to be precluded from the grant of a sub-class 309 visa. If the Tribunal decides he is not of good character, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.
EVIDENCE
Melissa Moussa (the Applicant)
Ms Moussa said that she had a relationship with Samer Aranaout from the age of 21, lasting some years, although they never lived together. He is the biological father of her children. After she gave birth to her son, Cameron, Mr Aranaout started a relationship with another woman, Sonia, which caused difficulties for Ms Moussa's relationship with Mr Aranaout. However, she fell pregnant again and Sonia also became pregnant at much the same time. Their children were born one day apart. Mr Aranaout does not make any financial payments to her for the support of their children. She has not admitted this to the Child Support Agency because, if she complains, she is afraid he will cause trouble. Ms Moussa said Sonia has continually been violent towards her son, Cameron, and the police applied for an Apprehended Violence Order against her in May 2001 (A1, p22). Cameron used to sleep at Mr Aranaout's house occasionally at weekends until his girlfriend started being violent, but Mr Aranaout has not seen his children for the past three month. Mr Aranaout is also physically violent to Sonia in front of Cameron. An Interim Apprehended Violence Order was granted but Cameron then told a police officer that he is not scared anymore so the police did not proceed with the application. Ms Moussa said Mr Aranaout had told his son to tell the police officer this. Ms Moussa said that Mr Aranaout and Sonia are still causing trouble, in particular, verbally abusing Ms Moussa and her son.

However, Ms Moussa said she has had no contact with Mr Aranaout since returning from Lebanon on 8 August 2001. During the time that she and Mr Moussa were together in Australia, the trouble stopped but after Mr Moussa returned to Lebanon it started again, and both she and her son are having counselling. Ms Moussa referred the Tribunal to a letter dated 2 May 2001 from Lisa Tassopoulos, a Child Pyschologist (A1,p19), who has been counselling Cameron for approximately three years. Cameron is also being counselled by the school counsellor and a behaviour specialist at his school, and is having counselling through the Department of Family and Community Services at Bankstown on a weekly basis. Ms Moussa's counselling is also through the Department of Family and Community Services but she is seeing a different person.

Ms Moussa is taking Zoloft for depression prescribed by Dr Al-Shelh (A1, p58). She is entirely dependent on social security benefits and has no other source of income. She referred the Tribunal to letters from Banksia Road Public School, which Cameron attends, concerning his physical aggression towards other students, for which he was suspended on 30 August 2001 for three days (A1, p21). Ms Moussa said her son was expelled from a private Islamic college for similar behaviour last year.

Ms Moussa said she knew of Mr Moussa before she met him at a friend's house. They liked each other immediately on meeting and underwent a religious ceremony soon after meeting so that they could live together. The religious ceremony was held on 22 June 2001 at her house and the marriage was formalised under Australian law by a marriage celebrant on 22 July 2001, also at her house. Ms Moussa said she and her husband have a beautiful relationship and had a real family life when they were together. Her son treated Mr Moussa as a father figure and his behaviour improved. Ms Moussa referred the Tribunal to a copy of a letter which Cameron wrote to Mr Moussa one night in his bedroom (A1, p18). Her daughter also refers to Mr Moussa as her father. Although her children only knew Mr Moussa for two months, they established a close relationship. Ms Moussa said her husband was both a good father to her children and supported her while he was in Australia. They communicate in a mixture of English and Arabic. She understands Arabic, but speaks it less well. Her husband's English is quite good. Now that he is in Lebanon, they speak on the phone nearly every second day and, as a result, she has a telephone debt of approximately $2,000 owing to Optus.
Ms Moussa said her husband has one sister in Australia, Douha Moussa, who is married with two small children. While Mr Moussa was in Australia he used to help his sister. Although Mr Moussa was not working when they started living together, she said he had worked previously as an employed cement renderer, and she referred the Tribunal to an Australian Taxation Office ("ATO") document dated 20 March 1998 stating Mr Moussa's tax file number (A1, p56). He was not working when they lived together because he had been told to stop work by the Department. However, he contributed financially towards the household. He had earned good money as a cement renderer and had some savings.
Ms Moussa said her husband is a quiet man who respects the Australian community despite his having overstayed his visa and, on his original application for a visitor's visa, lied about why he wanted to come to Australia. He has otherwise complied with the law. She said her husband had lied because of his fear of remaining in Lebanon. He told her of the problems arising from his former relationship with members of the Tawhead Party. While he was in Australia, Mr Moussa helped in the religious community and would drive the Minister to visit needy families. He also attended for prayers.
Ms Moussa said at the time she and her husband started living together, her understanding was that he was trying to obtain a visa to permit him to remain permanently in Australia. She was not aware that he did not have a visa at all. He had, however, told her that the RRT had refused to set aside the decision to refuse him a protection visa, and she was aware that his stay in Australia was uncertain.
Ms Moussa said they had employed a migration agent to complete her husband's application and her application to sponsor him. However, their dealings with the agent had caused significant difficulties. Ms Moussa also noted that the interpreter who had been used for her husband's interview at the Australian Embassy in Beirut was not an accredited interpreter. In particular, she referred the Tribunal to the Sponsorship Form (T13), which she said was completed by the agent, and while that form was purportedly signed by her on 15 August 2000, she said this was not her signature and she did not sign the form. The Sponsorship Form also contained incorrect information. For example, she does not live in a four bedroom house which she owns and she is not divorced. Ms Moussa invited the Tribunal to compare the signature on the form with that on her driving licence (T26) which she said is very different. She said the agent, Mr M Maarboni, had not completed the form while she was present. When she met him, he just asked her some questions and made notes. She noted that the migration agent's conduct had also been raised as a matter of concern by the Principal Migration Officer in Beirut, and that a complaint will be made to the Migration Agents Registration Authority after the current Tribunal proceedings are finalised. The agent had lied to them from the start and did not perform his job properly.
Ms Moussa said the separation from her husband has been extremely difficult for her, even though her family and friends have tried to help. Her father is dead. She has one sister. Her mother purchased a ticket for her to fly to Lebanon to visit Mr Moussa which she did in July 2001. She stayed with her husband in his rented flat in Jbeill which is about 30 minutes drive from Beirut or one hour from Tripoli. Jbeill is a remote, rocky area. She was in Lebanon for twelve days. During that time they did not go to Tripoli because her husband was afraid of the Tawhead people and still thinks that someone is "going to get him". She did not therefore get to meet her father-in-law because he was sick and in Tripoli and Mr Moussa refused to go there – he was too scared. They only went out at night to Beirut where she only saw the main road. Otherwise, they did not go anywhere and nothing happened. Ordinarily, her husband only goes out in the day to work as a taxi driver between Jbeill and Beirut. He does not even go to Tripoli to see his children. Instead, Mr Moussa's brother brings the three children from Tripoli to see him once a month. Ms Moussa said the only members of her husband's family she met were his brother Mohamad and his mother who came to visit them in the apartment in Jbeill.
Ms Moussa said she returned home to Australia early because her mother was looking after her two children and had to go into hospital for a kidney operation. Ms Moussa said she could not live in Lebanon if her husband's visa is refused. Her family is here in Australia. She wants her children educated here in Australia and, in any event, their father, Mr Aranaout would not agree to their being taken out of the country.
Ms Moussa said her husband is presently in Germany where he has been since the beginning of September on a visa for one and a half months. He has a friend there with whom he stays. This is his second trip to Germany this year, the first being around May/June. He goes to Germany because he is scared of being in Lebanon and because he is looking for work. He is trying to get work in Germany.
Abdul Rahman Moussa (the Visa Applicant)
Mr Moussa said that after he left school, he worked in the building trade as a cement renderer. He did not undergo any formal training but had to pass a test in order to qualify as a cement renderer. He did this work for about ten years and then worked for about 5 years as a taxi driver before coming to Australia.
As a member of the Tawhead Party, Mr Moussa received orders to go to different places. He was not high up in the Party and did what he was told. He did not commit any terrorist acts. He left the Tawhead Party because they were promoting prejudice and he did not approve of this. However, after leaving the party, he was scared when other members of the Party started making accusations against him, for example, that he was working for Israel. They started to harass him and put him in jail and threatened to kill him. They would come to his home and swear at him in obscene language. They tried to detain him but he escaped and moved away from Tripoli to Jounieh, which is approximately 50 kilometres from Tripoli. He worked as a taxi driver between Jounieh and Beirut. However, even in Jounieh, there was harassment by the Lebanese Army. About eight to 12 months before he came to Australia, he was stopped at a checkpoint when driving his taxi and accused of being a supporter of General Aoun. They hit him about the back and face and put him in jail in their centre at Jounieh for 24 hours until someone came to clarify that he was not a supporter of General Aoun, when he was released. General Aoun is regarded by the Lebanese Army as a rebel who had significant support in the area of Jounieh.
Mr Moussa was asked about his application for refugee status lodged on 24 December 1997 (T3). Mr Moussa said the form was completed for him by his solicitor, Sam Issa, and Mr Moussa denied ever having told Mr Issa that he was a supporter of General Aoun.
Mr Moussa said that, as a result of his fear of the Tawhead Party, he wanted to flee Lebanon. His only relative overseas was his sister who lived in Australia, so he chose to visit her. He applied for a visitor visa at the Australian Embassy in Beirut. He admitted to the Tribunal that he had lied in applying for the visa, stating that it was "only for a visit" when, in fact, his intention was to try and remain in Australia permanently. Mr Moussa said he was sorry for lying, but he believed he was in danger. After arriving in Australia, Mr Moussa applied for refugee status. Then he applied for a tax file number so that he could work and support himself. Once he had obtained a tax file number, he worked as a cement renderer for the next two years. He helped support his sister and also sent money to his wife, Ms Dabliz, and their 3 children in Lebanon for their support. Ms Dabliz, and the 3 children live with her mother in Tripoli. There had been some problems in their relationship and she did not understand why he was scared of the Tawhead Party and asked him to divorce her. Ms Dabliz has not since remarried and he continues to send her money for the support of their children.

Mr Moussa said he met his wife, Ms Moussa, through some friends and they fell in love. The reason he married Ms Moussa was because he loved her and not to assist him in remaining in Australia.
After the RRT affirmed the decision to refuse his application for refugee status, his solicitor, Sam Issa, told him he could get another visa by joining another court action. After he received notification of the RRT decision, Mr Moussa received a letter from the Department that he had 22 days to leave the country. He phoned Mr Issa and made an appointment to see him and, when he saw him, Mr Issa said he would take the necessary steps to obtain another visa for Mr Moussa. Eventually, he was informed by Mr Issa that he should go to the Department's office at Parramatta where they would issue him with a new visa. He went with a friend to obtain this on 20 June 2000. [It was not clear to the Tribunal whether it was on this occasion that Mr Moussa was told by a Departmental officer that he must stop work, or on a previous occasion when he had attended the Department with Mr Issa. However, Mr Moussa told the Tribunal that he was not working at the time that he met his wife in May 2000.]
Since returning to Lebanon, Mr Moussa has been working once again as a taxi driver between Jounieh and Beirut. He has not been the subject of any new threats but he is still afraid as a result of the way members of the Tawhead Party look at him. He said he did not expect Ms Moussa to come to Lebanon if his visa application was refused. Mr Moussa was speaking to the Tribunal by phone from Germany. This is the second trip he has made to Germany this year looking for work. The German authorities issue him with a commercial visa which enables him to work in German for the 45 day duration of the visa. Currently, he is working for a car dealer, assisting with buying and selling cars. He uses this money to support his children in Lebanon which he is unable to do from his earnings working as a taxi driver there. In conclusion, Mr Moussa apologised to the Tribunal for the problems he has caused.
Douha Moussa (A1, p14)
Douha Moussa confirmed that she is Mr Moussa's sister. She said her brother came to Australia because he was escaping from the Tawhead People in Lebanon. She invited him to come to Australia to stay with her because she knew his life was being threatened. When her brother arrived in Australia in November 1997, she met him at the airport and he lived with her for approximately 1 year. While he lived with her, he paid her rent from the money he earned as a cement renderer.
Mohamad Karhani (A1, p17)
Mohamad Karhani said he had known Mr Moussa since childhood in Lebanon. Mr Karhani came to Australia at the beginning of 1986 and met Mr Moussa again on the second or third day after his arrival in Australia in 1997. Mr Karhani said Mr Moussa was being pursued by the Tawhead Group and lived in fear in Lebanon and came to Australia for a better life. Mr Moussa is a good person who is honest, both to himself and his family. He proved himself a good citizen while he was in Australia. He is hardworking and peaceful. When someone else tried to cause trouble at Mr Moussa's house, he was calm and did not retaliate.
Mr Karhani said he was aware that Mr Moussa had worked as a cement renderer while he was in Australia. He could not recall exactly when Mr Moussa had stopped work but thought it was in 2000.
Abdullatif Nachar (A1 p16)
Abdullatif Nachar said he has known Mr Moussa since they lived in Lebanon. However, they only became close friends when Mr Moussa arrived in Australia and they worked together for approximately two years. Mr Nachar said his role was to assist Mr Moussa with the cement rendering. He could not remember the exact date when Mr Moussa stopped working before his return to Lebanon.
Mr Nacha said Mr Moussa is honest and a good man. He was being chased by the Tawhead Party in Lebanon, his life had been threatened, and he was afraid he would be killed. That is why he came to Australia, a visitor visa being the only way in which he could obtain entry.
SUBMISSIONS
The Applicant
Ms Moussa acknowledged that Mr Moussa had lied in obtaining his first visitor visa to travel to Australia. She said he is sorry, but he lied because he was in genuine fear at that time. She submitted there is no other evidence of bad conduct on the part of her husband. While he was in Australia, he worked and paid taxes. He helped in the religious community, to which the references which she has filed attest. Her husband has never been in any trouble with the Australian law.
Ms Moussa said the fact that her relationship with Mr Moussa in Australia was fairly short is not significant. It is the quality of the relationship which counts. Her children are constantly asking about him. She needs him to support her both financially, emotionally and otherwise. Financially, Ms Moussa is having great difficulty in coping. She has run up many debts including over $2,000 on her Optus telephone account. When she goes shopping, she takes a calculator to work out the cost of her purchases. She cannot cope without him. She is depressed and taking medication and both she and her son are attending counselling. She misses him terribly. Ms Moussa emphasised that her husband was not deported. He left Australia of his own free will. Since he left, the harassment by her ex-partner, Mr Aranaout has resumed and Ms Moussa does not believe this harassment will stop until she is reunited with her husband.
Ms Moussa said she cannot live in Lebanon. All her family are here in Australia, her religious community and circle of friends. She provides support for her mother who is not in the best of health. Moreover, to take her two children out of the country would require the consent of the Family Court which would be opposed by the children's biological father, Mr Aranaout.
Ms Moussa said that while her husband was in Australia, he tried to go through the proper channels. He genuinely believed that he was a refugee and, even recently, he was very jumpy when they were together in Lebanon. He continues to support his children in Lebanon by sending them money: both when he was in Australia, when he is in Germany, and when he is back in Lebanon.
Ms Moussa said he has now paid the debt raised by the Department against him, at the Embassy in Beirut. She noted that the migration agent whose assistance her husband sought, Mr Maaboni, was responsible for having delayed the process of her husband's application, and that the Principal Migration Officer had indicated that once the current matter is finalised, a complaint to the Migration Agents Registration Authority in respect of Mr Maaboni's conduct might be appropriate.
The Respondent
Mr Cureton, for the Respondent, said there are two issues for the Tribunal to consider in this matter. First, does Mr Moussa pass the character test? Second, if not, should the discretion in s 501(1) be exercised in his favour to grant a visa? Mr Cureton submitted that Mr Moussa does not pass the character test because of his past and present general conduct. In particular, Mr Moussa lied to the Department in making his original application for a visitors visa and subsequently overstayed. Mr Cureton said Mr Moussa had also made false claims in his application for a protection visa, for example, that he was a supporter of General Aoun. Mr Moussa told the Tribunal in evidence that this was not correct even though the statement appears in his application. Mr Cureton contended that, even if the migration agent had completed the form, nevertheless, Mr Moussa should be held responsible for this false statement.
With regard to Mr Moussa's claim that he was detained at a checkpoint, assaulted and imprisoned for 24 hours, Mr Cureton contended that this was not true. Mr Moussa had been passing through checkpoints in Lebanon for the previous four years and it was not credible that such an incident could have taken place. The RRT had not accepted Mr Moussa's account of this incident, and had found this was a fabrication. The RRT concluded that it was not satisfied that Mr Moussa held a well-founded fear of persecution.
With regard to the advice Mr Moussa apparently received from his solicitor, Sam Issa, Mr Cureton contended that Mr Moussa had consulted Mr Issa because he knew he was here unlawfully. Mr Cureton also contended that Mr Moussa had worked without a visa until June 2000 and had entered into marriage for the purpose of supporting his application to remain in Australia. Mr Cureton noted, in particular, the short time that Mr and Mrs Moussa had known each other before they were married.
Mr Cureton concluded by saying that Mr Moussa was not of good character. Insufficient time had passed since he departed Australia for rehabilitation to be considered. Moreover, the character references which Ms Moussa had supplied were subjective only. Since, in the Respondent's view, Mr Moussa does not pass the character test, the second issue must be examined, namely, whether the discretion in s 501(1) should be exercised in Mr Moussa's favour. In considering this, the Tribunal must have regard to Direction No. 21 and the primary and secondary considerations set out therein.

With regard to the first of the primary considerations, the protection of the Australia community, Mr Cureton contended that Mr Moussa's conduct in making false or misleading statements and showing disrespect for Australian law, was very serious. There would be a deterrent effect if a message that such conduct was not acceptable to the community were made plain by refusing a visa. With regard to the second of the primary considerations, the expectations of the Australian community, Mr Cureton submitted that the Australian community would expect that Mr Moussa would not be allowed to migrate to Australia. Thirdly, with regard to the best interests of any children, Mr Cureton submitted that Mr Moussa's relationship with Ms Moussa's two children was a very short one and, also, that Mr Moussa has children of his own in Lebanon. With regard to other considerations, in particular, any hardship to Ms Moussa, Mr Moussa and their family, Mr Cureton stated that while the Respondent accepts that there will be hardship, that hardship and any interests of Ms Moussa's children in Mr Moussa returning to Australia were outweighed by the need to protect the Australian community. Thus, Mr Cureton, for the Respondent, submitted that the discretion in s 501(1) should not be exercised in Mr Moussa's favour.
FINDINGS
Mr Moussa acknowledges that he lied when stating his reasons for wanting to visit Australia in 1997. His intention was to escape from Lebanon where, the Tribunal accepts, he held genuine fears for his safety. While Mr Moussa is unable to produce any objective evidence in support of his claimed fear, this does not mean that such fear is not real for Mr Moussa. The Tribunal finds that the claims made by Mr Moussa in his application for a protection visa were probably exaggerated because of this fear. However, the Tribunal notes his evidence that the statement in his protection visa application that he supported General Aoun is incorrect. It is apparent that, to a significant extent, Mr Moussa relied on his solicitor and migration agent, Sam Issa, in making visa applications and, as a result of Mr Moussa's limited English skills, some statements in the visa applications were not accurate. The Tribunal notes Mr Moussa's evidence as to his reliance on Mr Issa's advice after he had been notified of the RRT decision affirming the refusal of his application for a protection visa.

It is not clear to the Tribunal whether Mr Moussa had permission to work in the period before the grant of his final visa on 20 June 2000 (T24, p149). However, that final visa contained a "no work" condition and the Tribunal accepts Mr Moussa's evidence that when this visa was granted, he immediately stopped work. Mr Moussa applied for a protection visa on 24 December 1997 and appears to have been granted a bridging visa on that date without work restrictions. This visa was valid until 28 days after notification of the primary decision or of a decision by a review authority. A letter to Mr Moussa dated 25 February 1998 (T4) indicates that Mr Moussa had permission to work in Australia for the period that his bridging visa remained in effect. The Tribunal accepts that Mr Moussa believed he could work from the time this visa was granted on 24 December 1997 and, immediately after, took steps to obtain a tax file number of which he was notified by letter dated 20 March 1998 (A1, p56).
The RRT affirmed the decision to refuse the grant of a protection visa to Mr Moussa on 26 October 1999. On receiving notification of this decision, Mr Moussa contacted Mr Issa for advice. The Tribunal accepts Mr Moussa's evidence that Mr Issa advised him that he could make an application to another court in order to obtain a further visa. It is apparent that Mr Moussa relied on Mr Issa to take the necessary steps to obtain a further visa, but it is not clear why this was not issued until 20 June 2000 and why this visa was granted on the condition that Mr Moussa would not work. Thus, it may be that Mr Moussa worked without permission from the beginning of December 1999 until June 2000. However, the Tribunal accepts that he relied on Mr Issa's advice that he could continue to work.
The Tribunal finds that Mr Moussa's relationship with Ms Moussa is a genuine marriage relationship which was not entered into for the purpose of enabling him to remain permanently in Australia. To the extent that it is possible to make an assessment over the telephone, in the Tribunal's view, Mr Moussa gave credible evidence. The Tribunal was impressed by Ms Moussa's evidence, her forthright presentation and obvious commitment to her husband. The Tribunal accepts Mr Moussa's evidence that his previous marriage was over and that he was divorced according to Muslim law sometime before he met Ms Moussa, although the formal documentation was not issued until 21 June 2000. The Tribunal finds that the refusal of a visa to Mr Moussa would cause Ms Moussa significant hardship. She has two young children to support and bring up with no assistance from their biological father, who has caused significant difficulties for Ms Moussa which have led for example, to the police applying for an apprehended violence order against Mr Aranaout's girlfriend (A1, pp22-24). Ms Moussa is currently suffering from depression for which she has been prescribed and is taking Zoloft (A1, p58).
The Tribunal accepts Ms Moussa's evidence that for the short time she and Mr Moussa lived together, he had a beneficial influence on her children and had begun developing a parental relationship with them. This was reflected, in the case of Cameron, who is aged 8, with an improvement in his behaviour (A1, pp19-21). The Tribunal finds that it would be to the benefit of Ms Moussa and her children for them to be living with Mr Moussa in a stable family relationship.
The Tribunal also accepts that it would cause hardship to Mr Moussa for him to be refused a visa. He departed Australia on 28 July 2000 and has now been separated from his wife, apart from her brief visit in August 2001, for 14 months. The Tribunal notes that Mr Moussa continues to support his three children from his previous marriage and maintains contact with them. The Tribunal also notes the evidence given at the hearing as to Mr Moussa's good character and his participation in and support of the Muslim religious community while he was in Australia.
Finally, the Tribunal notes the reliance placed by Mr and Ms Moussa on a migration agent, Mr Maarboni in relation to Mr Moussa's application to migrate to Australia lodged on 15 August 2000. Ms Moussa gave evidence that her signature was forged on the sponsorship application made by her, completed by Mr Maaboni, which also contained inaccurate information, for example that she was previously divorced and living in a four bedroom house which she owned, all of which was incorrect.
APPLICATION OF THE LAW
The Respondent contends that Mr Moussa does not pass the character test by virtue of s 501(6)(c) of the Act having regard to "the person's past and present general conduct". The application of the "character test" in s 501(6)(c) is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
The concept of "good character" in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is "not of good character" within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
Secondly, the Tribunal must have regard to Part 1 of Direction No. 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, the Visa Applicant, Mr Moussa does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) to grant a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No. 21 as a guide to the exercise of its discretion.
Firstly, the Tribunal is not satisfied that Mr Moussa is of good character having regard to his past and present general conduct. Paragraph 1.9 of Part 1 of Direction No. 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case is paragraph 1.9(b), which directs the decision-maker to consider -
whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement.

Mr Moussa acknowledges that he lied to the Department when he applied for a visitor's visa to come to Australia in 1997. The Tribunal has found that he exaggerated the claims related to his persecution in Lebanon in making his application for a protection visa. However, Mr Moussa was genuinely afraid of his being harmed by members of the Tawhead Party, subjective though that fear may have been. The Tribunal notes the High Court decision in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 577-578, where Gummow and Hayne JJ observed that:
the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.
Apart from the lie Mr Moussa told in respect of his original application for a visitor's visa and the exaggerations in relation to his application for a protection visa, there is no other evidence to suggest that Mr Moussa is not of good character. If Mr Moussa worked without permission in Australia between December 1997 and 20 June 2000, in the Tribunal's view, this was because he was under the misapprehension that Mr Issa, his solicitor and migration agent, was taking the necessary steps to obtain a further visa for him. The other evidence suggests that Mr Moussa has sought to comply with Australian immigration requirements and more generally with Australian law. The Tribunal also heard evidence at the hearing as to Mr Moussa's good character in terms of his support for his religious community in Sydney, on his being a hardworking, honest person, and in terms of his continuing support for his children in Lebanon and his support for Ms Moussa and her children.

In the Tribunal's view, Mr Moussa's misconduct, in lying when applying for a visitor visa, was motivated by fear, as were the exaggerations made in his protection visa. Indeed, this misconduct needs to be weighed against other evidence of Mr Moussa's good conduct and seen in the context of his particular circumstances. However, in the Tribunal's view, Mr Moussa's misconduct should be regarded as serious and, therefore, pursuant to s 501(6) the Tribunal finds that he does not pass the character test having regard to his past and present general conduct.
Having so determined, the Tribunal must consider the exercise of the residual discretion under s 501(1) to decide whether, notwithstanding, not to refuse the grant of a visa to Mr Moussa. In doing so, the Tribunal will have regard to Part 2 of Direction No. 21 as a guide to the exercise of its discretion.
Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

Paragraph 2.3 sets out the primary considerations:

In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

Paragraph 2.4 explains:

The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community

Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraph (c), serious crimes under the Migration Act which, in turn, include providing false or misleading statements. The Respondent pointed to a number of decisions emphasising the importance of observing the truth when dealing with officials in migration matters. For example, in Re Lachmayia and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at 155, Deputy President McMahon said:
The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia.

As the Tribunal has noted above, however, the countervailing factor with regard to this misconduct is Mr Moussa's subjective fear prompting his fleeing Lebanon.

Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons. The Tribunal does not accept that Mr Moussa's conduct has demonstrated that there is a risk of recidivism. With regard to general deterrence, the Tribunal recognises that people should be deterred from making false or misleading statements for the purpose of obtaining visas.
The second primary consideration is the expectations of the Australian community. In this regard, the Tribunal notes that Mr Moussa intended to comply with Australia's immigration laws while he was in Australia and no breach of those laws has been established in relation to his conduct outside Australia.
The third primary expectation is the best interests of the child or children in a parental or other close relationship with the Visa Applicant. Mr Moussa has three children by his first marriage who live with his former wife in Tripoli and who have not visited Australia. They are not party to the present visa application. Mr Moussa provides for their financial support and, presently, sees them monthly. Obviously, if Mr Moussa is permitted to migrate to Australia, their level of contact with their father will be adversely affected.
Ms Moussa has two children from a previous relationship. Their biological father affords Ms Moussa no support for their upbringing, a probable result of which is that Cameron, who is aged 8, has had behavioural problems at school. The Tribunal accepts Ms Moussa's evidence that while Mr Moussa was living with her, Mr Moussa's relationship with Cameron was a good one and Cameron's behaviour improved significantly. The Tribunal also accepts Ms Moussa's evidence that Mr Moussa established a good relationship with her daughter, Chanece, and that both children miss him. The Tribunal therefore concludes that it would be in the best interests of Ms Moussa's children for the family to be reunited.
Paragraph 2.17 of the Direction notes that the decision-maker may need to take into account other considerations. These may include genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established, and whether the Australian partner knew that the non-citizens character was of concern at the time of entering into the relationship, and the family composition of the non-citizen's family both in Australia and overseas.
The Tribunal has found that the marriage relationship between Mr and Mrs Moussa is a genuine and caring one. Ms Moussa was aware that there might be difficulties with regard to her husband's migration status when they were married. However, significant hardship would be caused to her and her children if Mr Moussa were refused a visa, and significant hardship would also be caused to Mr Moussa. Ms Moussa is suffering from depression for which she is currently taking Zoloft (A1, p58). The Tribunal notes Mr Moussa's family background in Lebanon and that his previous marriage was over before he met Ms Moussa. He has three children from that marriage who, as noted above, live with their mother in Tripoli, and who he continues to support financially. Although those children would be affected by Mr Moussa migrating permanently to Australia, this has to be weighed against his perceived need to live his life away from the fear of persecution and the interests of Ms Moussa and her children who are Australian citizens and live in Australia. Ms Moussa is not prepared to live with her husband in Lebanon given her family, background, and commitments in Australia.
In conclusion, a balancing of the primary and other considerations persuades the Tribunal that the discretion in s 501(1) should be exercised in Mr Moussa's favour. The decision under review should, therefore, be set aside and the matter remitted to the Respondent for reconsideration with the direction that the discretion to refuse the grant of a visa under s 501(1) of the Act should not be exercised in the case of Mr Moussa.
I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President
Signed:         .....................................................................................
  Associate
Date of Hearing   28 September 2001
Date of Decision   1 November 2001
Representative for the Applicant   Self-represented
Solicitor for the Respondent    Mr N Cureton, Blake Dawson Waldron Solicitors