Nachar and Minister for Immigration and Multicultural Affairs
[2000] AATA 140
•25 February 2000
DECISION AND REASONS FOR DECISION [2000] AATA 140
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/481
GENERAL ADMINISTRATIVE DIVISION )
Re MARIAM NACHAR
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Dr D Chappell
Date25 February 2000
PlaceSydney
Decision The decision under review is thus set aside and the matter remitted to the respondent for reconsideration in accordance with the direction that Mohamad Mahmoud El-Abass meets the requirements of clause 4001 of the public interest criteria in Schedule 4 of the Migration Regulations and s 501 of the Migration Act 1958 for the grant of a sub-class 309 (spouse provisional) visa, in that despite finding that the refusal to grant the visa is justified, the discretion under s 501 of the Migration Act 1958 be exercised in his favour.
.......(sgd) Duncan Chappell..........
Dr D Chappell
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – subclass 309 spouse (provisional) visa – refusal to issue – citizen of Lebanon – not of good character due to past general conduct – illegal entry into Germany – history of immigration malpractice in Lebanon, Germany and Australia – provision of false information and lodgment of false applications – discretion not to refuse grant of visa despite adverse finding as to character – consideration of best interests of children – children Australian citizens – consideration of hardship to applicant, wife and children – wife in fragile psychological and financial state – undue harm to Australian community resulting from exercise of discretion not to refuse visa – mitigating factors, principally welfare of wife and children, sufficient to justify exercise of discretion.
Migration Act 1958 ss501(2)(a)
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration, Local Government and Ethnic Affairs v Baker (1997) 73 FCR 187
Phoc Tuong Tran and Minister for Immigration and Multicultural Affairs (AAT 12357, 30 October 1997)
Vin Tran and Minister for Immigration and Multicultural Affairs (AAT 12376, 7 November 1997)
REASONS FOR DECISION
25 February 2000 Dr D Chappell
BACKGROUND
Application and Hearing
This is an application by Ms Mariam Nachar (the applicant) for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (the Minister) pursuant to s 501 of the Migration Act 1958 (the Act) to refuse to grant to her husband, Mr Mohamad Mahmoud El-Abass, a sub-class 309 (spouse (provisional)) visa. The refusal was based on the finding that Mr El-Abass was not a person of good character. Section 501(b) of the Act confers jurisdiction on the Tribunal to review this decision.
At the initial hearing of this matter on 16 and 17 November 1999 Ms Nachar was not legally represented. Ms Nachar gave personal testimony to the Tribunal and so too did Ms Samar Danaoui, Mr El-Abass' sister. Attempts to have Mr El-Abass give personal testimony by phone from Lebanon proved unsuccessful. Ms Nachar then requested an adjournment for her to seek legal advice and also to make firm arrangements for Mr El-Abass to give evidence at the hearing. On 19 January the hearing resumed and Ms Nachar was represented, under a pro bono arrangement, by Mr Ben Zipser of counsel. At the resumed hearing Mr El-Abass gave personal testimony to the Tribunal by phone from Tripoli in Lebanon and Ms Nachar also gave further personal testimony.
Ms Sharn-Adelle Coombes, a departmental advocate, represented the respondent throughout the hearing. No witnesses were called on behalf of the respondent. The Tribunal was grateful for the interpreting assistance provided during the hearing by Ms Mariella Manna.
The Tribunal had before it documents and supplementary documents filed for the purposes of s 37 of the Administrative Appeals Tribunal Act (1975) (the T and S documents). The following exhibits were also received into evidence on behalf of the applicant:
Exhibit No. Description Date
A1 Report by Dr Petah Martin, consultant psychiatrist and attached letter from Karina Morrison dated 28/6/1999 24/6/1999
A2 Letter from Bankstown Women's Refuge and Resource Centre 29/7/1999
A3 Letter from Ms Nachar 8/8/1999
A4 Letter from Mr and Mrs Buth attached to facsimile coversheet dated 11/8/1999 Undated
A5 Translation of certificate concerning Mr Mohamad El-Abbas 4/11/1999
A6 Extract from passport for Mr El-Abbas
A7 Translation of official medical certificate for Mr Al Abbas 16/3/1999
A8 Phone records as identified
A9 Letter from P. Kent, Social Worker, Bankstown Health Service 17/1/2000
A10 Single page from passport of Mariam Nachar
A11 Movement records of Mariam Nachar
Visa Refusal
The refusal to grant Mr El-Abass a sub-class 309 visa was made by the Minister's delegate, Mr Joseph Petyanszki, on 10 March 1999. Mr Petyanszki, who at the time was the Principal Migration Officer (Compliance) of the Department of Immigration and Multicultural Affairs (DIMA) at the Australian Embassy in Beirut, Lebanon, provided the following reasons for this refusal:
19.The reasons for my decision to refuse to grant a visa to Mr Mohamed El Abbass are, that since 1993 he has;
· deserted from the Lebanese Security Forces and illegally left Lebanon
·illegally entered Germany and lodged a claim for political asylum based on false claims
·was arrested and incarcerated for six months and finally deported from Germany back to Lebanon
·within months of this deportation from Germany he illegally obtained a Dutch passport which he used to leave Lebanon and enter Turkey
·in Turkey he made contact with people traffickers who smuggled him into Germany
·in Germany he again lodged a claim for political asylum based on bogus claims
·in Germany, in an endeavour to gain entry and permanent residence in Australia he entered into a contrived relationship with an Australian citizen
·was detained again by German authorities and for the second time deported back to Lebanon
·in his current migration application failed to disclose a conviction against him in Lebanon
·has presented false and misleading information to DIMA
·is still currently legally married to his first spouse who he married in Germany
20.Based on the above evidence, I found that the general conduct of Mohamed El Abbass convinced me, that on aggregate of behaviour, over a period of five years, Mr El Abbass has shown little regard for Lebanese, German, Turkish and Australian law, and is therefore not a person of good character. Consequently he comes within the scope of Section 501(1)(2)(a)(ii).
(T2:13-14)
Having reached the decision that Mr El-Abass was not a person of good character, Mr Petyanszki then went on to determine that there were not sufficient reasons to justify his exercise of the discretion under s 501 of the Act to grant a visa, notwithstanding the finding of bad character. Mr Petyanszki noted that:
21.At the time of decision I also considered that the Applicant's spouse is an Australian citizen and they now have an Australian born infant, and whether this provides any over-riding compassionate circumstances that could be taken into account to exercise discretion to grant a visa following an adverse character finding. The decision record clearly sets out the issues that were taken into account in making this consideration.
22.The Applicant has played no part in the upbringing of the Sponsor's child from her previous marriage. Since the break up of her first marriage the Sponsor has spent considerable time residing in Lebanon and not in Australia. The Applicant and the Sponsor's immediate family members including their parents and eleven siblings reside in Lebanon.
23.The Sponsor seems to be well aware of the Applicant's previous attempts at illegally attempting to gain residence in Germany and his previous marriage. Consequently the Applicant's general conduct and the Sponsor's knowledge of that conduct cannot be disassociated.
24.On balance, taking into account the Applicant's aggregate of behaviour since 1993, and his admissions in relation to his past criminal and general behaviour, I found that this behaviour far outweighed any mitigating circumstances of marriage to a Australian citizen or having an Australian born child. The Applicant has made repeated previous efforts to gain residence in both Germany and Australia. To do this he has sought the assistance of criminals and criminal organisations, and repeatedly presented false information.
24.I therefore found that the general conduct of Mr Mohamed El Abbass satisfied me that he was not a person of good character and therefore decided, in accordance with section 501(1)(2)(a)(ii) of the Migration Act to refuse to grant him a subclass 309 visa.
(T2: 14)
Ms Nachar's application for a review of this decision by Mr Petyanszki was lodged with the Tribunal on 1 April 1999 (T1).
LEGISLATIVE AND POLICY ISSUESSection 501 of the Act is the key legislative provision relevant to Mr El-Abass' case. This section was amended by Parliament in a substantial way after the decision was made by the respondent to refuse Mr El-Abass residency status in Australia. However, it was acknowledged by the parties that this amendment did not affect the present proceedings in any way, and that the earlier version of s 501 applied to the case. The relevant parts of that earlier version of s 501 of the Act provide the following:
501. (1) The Minister may refuse to grant a visa to a person, or may cancel a visa that has been granted to a person, if:
(a)subsection (2) applies to the person; …
(2)This subsection applies to a person if the Minister:
(a)having regard to:
(i)the person's past criminal conduct; or
(ii)the person's general conduct;
is satisfied that the person is not of good character …
In addition to the Act, the Migration Regulations 1994 (the Regulations) also set out criteria which are relevant to the Tribunal's consideration of Mr El-Abass' case. It is not necessary to do more at this stage than note that one of the criteria to be satisfied is the public interest provision contained in Clause 4001 in Schedule 4 of the Regulations (T7). It should also be noted that the respondent's Migration Series Instructions (MSI) 164 incorporates ministerial policy and provides guidance as to the interpretation of s 501 of the Act. The latest edition of this document was issued on 27 April 1997 (see T5).
Further guidance to decision makers as to the matters which the Government expects to be taken into account when assessing the good character requirement of s 501 of the Act, and deciding whether to refuse a visa if satisfied that the applicant does not meet that requirement, is to be found in a Ministerial Direction made under s 499 of the Act. "General Direction – Visa Refusal s 501 – No 5" (the Ministerial Direction) was issued by the Minister on 25 November 1997 (T6). The Direction provides, in part, that:
When considering under section 501 the good character requirement relating to non-citizens who are seeking a visa and the ensuing discretion which arises after a finding that the applicant does not meet that requirement, the view of the Government is that non-citizens must comply with expected standards of behaviour that reflect community attitudes to such matters as criminality, provocative conduct, and complicity with others who are involved in, or connected with, organised criminal behaviour.
The following matters are regarded by the Government to reflect significant concerns in the community about the character and conduct of non-citizens. Decision makers are to have due regard to this community concern in deciding whether the person meets the good character requirement under section 501. These matters are:
where a non-citizen has been convicted of offences, or the non-citizen has behaved or conducted themselves in a manner which could give rise to concerns in the Australian community, or a segment of that community; …
where there have been offences against migration law involving penalties (either actually imposed or with a liability arising from the breach that could lead to such penalties being imposed), including escaping from lawful custody.
Offences against the person (eg: murder, rape, kidnapping, assault) and offences relating to prohibited drugs are regarded by the Government as being of particular concern when considering non-citizen visa applicants and the good character requirement and should be given due regard under section 501. …
If, after a finding that the person does not meet the good character requirement under section 501, the following are also regarded by the Government as matters which should be given due regard when considering the exercise of the discretion to refuse to grant a visa:where the visa applicant has a spousal or partner relationship with an Australian citizen, permanent resident or eligible New Zealand citizen:
whether, at the time of entering into or establishing the relationship, there was knowledge on the part of the Australian citizen, resident or eligible New Zealand citizen of the non-citizen's conduct (which by its nature then brings that person within the scope of section 501 of the Act);
if there was such knowledge, whether the relationship was entered into and established notwithstanding that the non-citizen had not been granted a visa for Australia; and
in assessing the compassionate claims of the Australian partner in the above situation, decision makers are expected to have due regard to the circumstances under which the relationship was established.
whether the non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought them within the deportation provisions at section 201 of the Act or the visa refusal and cancellation provisions at section 501 of the Act.
(T6: 79-80)
EVIDENCE
Chronology
To assist the Tribunal the parties provided a chronology of significant events surrounding Mr El-Abass and Ms Nachar which led eventually to the present proceedings. Since the number of these events is quite large, and their sequencing is relevant to the issues before the Tribunal, a copy of this chronology is attached to this decision (Attachment 1). It will be seen that the chronology commences in 1993, when Mr El-Abass first departed Lebanon, and continues until October 1999, when Mr El-Abass' wife and daughter returned to Australia from Lebanon. Given this chronology it is intended to review the evidence presented to the Tribunal under the following heads:
1993 - 1995: Lebanese and German connections
1996 - 1997: Marriage and sponsorship by Erin Smith to Australia
1997 - 1999: Marriage and sponsorship by Mariam Nachar to Australia
1993 – 1995: Lebanese and German Connections
Mr El-Abass was born on 24 July 1970 in Tripoli, Lebanon. He told the Tribunal that he grew up with his family in this city. After receiving his primary and secondary schooling Mr El-Abass started tertiary studies in physics at a university in Tripoli. However, after completing only one year of study he left the university and went to study elsewhere to become a general mechanic.
Mr El-Abass said that in September 1991 he joined the Lebanese police force or gendarmerie. After a period of training for three months he became an explosives expert who was responsible for checking suspicious cars to see whether or not they contained bombs. He said the job was a dangerous one and that while none of his colleagues had been killed on duty, several had lost their hands as a result of explosions (transcript 19 January 2000: 24-25).
Mr El-Abass said that in December 1992 he deserted from the police force. He said that he had deserted for a number of reasons, including a failure by the force to provide him with promised petrol vouchers, and a salary increase. He also said that he had applied to become an officer in the police force and had passed all of the requisite tests but had nonetheless been rejected because there were already sufficient Muslim applicants among the officer corps (transcript 19 January 2000: 27). Following this desertion Mr El-Abass was convicted by a military court, in November 1995, of escaping from the gendarmerie. He was ordered to pay a fine of 50,000 Lebanese Pounds (T28:253).
A few weeks after leaving the police force Mr El-Abass made a visit to Venezuela. He said that he had travelled on his own passport and had a tourist visa to enter that country. After a short stay he returned to Lebanon. No action was taken against him at this time in regard to his desertion from the police force (transcript 20 January 2000: 28-29).
Early in 1994 Mr El-Abass made the first of two attempts to gain permanent residency in Germany. In about March of that year he entered Germany illegally after travelling from Lebanon by ship. He said that he had been travelling on a valid Lebanese seaman's passport at the time and had jumped ship in Denmark and then crossed over into Germany. He chose Germany because his brother was already resident in that country and he thought that he could obtain support from him (transcript 20 January 2000: 29-30).
Mr El-Abass told the Tribunal that once in Germany he had made an application for a refugee visa. The claims contained in his refugee application were false and the application was eventually rejected. Meanwhile, he was placed in a camp in a German city called Oldenberg. Mr El-Abass said that he left the camp after about six months to live with his brother. He remained there until he was arrested by the police for not having the appropriate papers and was deported from Germany in about February or March 1995 (transcript 19 January 2000: 6-9).
In about April or May of 1995 Mr El-Abass said that he again entered Germany illegally. In his testimony to the Tribunal he said:
There were a group of Kurdish people who were able to smuggle me through the Lebanese border, Syria, Turkey then other countries I don't know which one and we entered Germany.
(transcript 19 January 2000: 9-10)Mr El-Abass said that he had returned to Germany because he liked the country, there was plenty of work, and the regulations in Germany were easier on refugees than elsewhere. Mr El-Abass also told the Tribunal that he had not had a passport with him when he had entered Germany on this second occasion. He again applied for a refugee visa and he said that:
Unfortunately I had to lie again and I told them that I was wanted by the Lebanese authority because Lebanese people were not allowed at that time to apply for refugee.
(transcript 19 January 2000: 10)Mr El-Abass' second application for refugee status was also eventually refused but meanwhile he said that he was allowed to work in Germany. This work included a period of about three months employed in a restaurant in Oldenberg (transcript 19 January 2000: 11-12; A7).
In her cross-examination of Mr El-Abass, Ms Coombes, on behalf of the respondent, questioned him about the circumstances under which he had entered Germany on the second occasion, and also the nature of the employment that he claimed to have undertaken in the restaurant. Mr El-Abass said that he had known some Kurdish people from his previous stay in Germany and that they had assisted him in being smuggled back into Germany. The fee for assisting people in this way was US$5,000. Trucks carried a number of people on each trip. Mr El-Abass denied that he knew the individuals who had assisted him very well but he agreed that he had worked for them in the restaurant in Oldenberg in order to pay them back for the help they had provided. He denied that this help had included the provision to him of a false passport (transcript 20 January 2000: 7-9).
Following this line of questioning Ms Coombes suggested to Mr El-Abass that the account he was now providing of his illegal entry into Germany differed from that which he had provided during the course of an interview in Beirut with a DIMA official in February 1997 (S4). In notes made by this official about what had been said by Mr El-Abass it was recorded:
Obtained a false passport through Lebanese-Kurdish friends (the Mare family) in Germany through international courier service. Netherlands photosubstituted passport provided. He didn't pay any money, he would work at their pizza restaurant at low wage in Oldenburg. Passport was returned to the family who have probably recycled it. Says he (re)opened old refugee application. but was able to work in a pizza restaurant. What were refugee claims - told the authorities he had political problems in Lebanon but said this was not the case. He was deported from Germany once authorities discovered he had a Lebanese passport.
(S4:5)Mr El-Abass then denied ever having such a false Dutch passport and also said that he had not worked to pay for such a passport. He said that if he had such a passport he would have been able to travel to any country he wished and would also have entered Germany "in a car, not in the back of a truck" (transcript 20 January 2000: 10-11).
Following this line of questioning, Ms Coombes questioned Mr El-Abass about his links to Australia. Mr El-Abass admitted that he had a brother and sister living in this country, and that his sister had moved here some 20 years ago and was now married to an Australian citizen. His brother had applied for refugee status in Germany and had then come to Australia. Ms Coombes suggested to Mr El-Abass that he had a similar plan in mind when he had made application for refugee status in Germany, a contention that Mr El-Abass denied (transcript 20 January 2000: 11-12).
Mr El-Abass did not deny that during 1995, in-between his two trips to Germany, he had made an application in Lebanon for a visa to visit his brother and sister in Australia (S5; transcript 20 January 2000: 21). This visa application was refused (see T8, T10 and S5). In that application the question had been asked whether or not Mr El-Abass had ever been "deported from, refused entry to, or asked to leave any country including Australia" (S5:11). The answer given in Mr El-Abass' application to this question was "no". Mr El-Abass said that he had not understood the question at the time and that in any case his brother had filled in the application and sent all the documents for him to sign. He agreed that he had signed the document and that he had been deported from Germany only a couple of months prior to such signing (transcript 20 January 2000: 22).
1996 – 1997: Marriage and Sponsorhip by Erin Smith to AustraliaIn July 1996, while still in Germany, Mr El-Abass met through friends an 18 year old Australian woman who was on vacation in that country. Within six days of their meeting Mr El-Abass said that he married this woman, Erin Smith, in an Islamic ceremony. When asked why he had not also married her in a German civil ceremony Mr El-Abass said:
I married her the Islamic way in order to get for her to be able to live with me so we will get to know each other better and I'll get to know her better because, you know, in our religion it's against the religion to live with someone, with a girl, without marrying her and I thought after I marry her and we live together and then we will contract a second marriage.
(transcript 19 January 2000: 14)On 22 July 1996 Ms Smith and Mr El-Abass lodged an application for Mr El-Abass to migrate to Australia as Ms Smith's spouse. Shortly after lodging this application with the Australian Embassy in Bonn Ms Smith left Germany to return to Australia. On 27 November 1996 the Australian Embassy in Bonn received a signed request from Mr El-Abass stating that he had "been obligated to travel to Lebanon, therefore I beg you to transfer my application from Bonn to the Australian Embassy in Beirut" (T15). The Australian Embassy in Bonn also received an undated handwritten letter from Mr El-Abass (T16) in which he noted that:
I have filled up an application for marriage from about 35 days, and I want now to change into engagement application (verlobung Antrag).
The reason for that is:
first. my wife isn't in Germany, so I can't bring a marriage certificate from the "standesamt"
second: my wife has a job and she can't leave it to come to Germany, because she's busy too much.
finally I hope to understand my situation and to send all the papers and the details the it concern to (verlobungantrag). I need your help in this case.
(T16: 140)
An address in Oldenberg in Germany was shown on this undated letter. It must be presumed that this letter was sent some time prior to November 1996 when Mr El-Abass was again deported back to Lebanon by German authorities.
Once in Lebanon Mr El-Abass lodged a further application for migration to Australia with Ms Smith as his sponsor. He sought a visa on the basis of his prospective marriage to Ms Smith (T18). As noted earlier, in February 1997 Mr El-Abass was interviewed by DIMA officials at the Australian Embassy in Beirut concerning his visa application (S4). The notes of this interview include the following record of what was said about the status of the relationship between Mr El-Abass and Ms Smith at that time:
Couple met in July 1996 through a friend of sponsor who was working in Germany. Couple signed the book 1 week after meeting. He says sponsor converted to Islam straight away. Sponsor left Germany beginning of August 1996. Photographs seen of couple together in Germany - some of them she is wearing a hijab. She returned to A/a and she had problems with her father who didn't accept the relationship. She is no longer wearing the hijab. Claims they spoke with each other yesterday. Claims some letters when he was in Germany. About 3 letters and 2 postcards provided - all written before PA returned to Lebanon. He asked her to come to Lebanon but she was frightened by events in the south.
He is not of good character. Has continued to mislead the embassy about his status in Germany. Limited evidence of relationship and recent phone call from sponsor expressing concerns about his intentions demonstrates relationship not genuine and continuing. For refusal.
After the iv I called the sponsor in A/a. It was about 11.30pm A/a time. A male person answered the phone and I was then passed on to the sponsor. She stated that the person who answered the phone was a "friend" who lived in the same building. She was not convincing. I asked her some questions about the PA and claims made by him that sponsor was a heroin user. She denied this but admitted was a regular user of marijuana. Did not appear at all commited to the relationship and by her manner seemed to have little interest in whether he got visa or not.
(S4:5-6)These interview notes were dated 5 February 1997. A further note, dated 7 March 1997 on the same interview records, stated that a fax had been received from Ms Smith withdrawing her sponsorship (S4:6; T23). On 7 March 1997 Mr El-Abass was advised in writing that as a result of this withdrawal of sponsorship his application for a visa was refused (T24).
1997 – 1999: Marriage and Sponsorship by Ms Nachar to AustraliaDuring February 1997 Mr El-Abass had his first contact with Ms Nachar. Ms Nachar said that she had been given Mr El-Abass' name and phone number by a friend of hers who had been fond of Mr El-Abass but had not been in a relationship with him (transcript 16 November 1999: 20-21). At the time Ms Nachar was visiting her family in Lebanon with her daughter Sarah. Ms Nachar, who was born in Lebanon on 1 January 1976, had left that country during 1993 to assist her sister who had migrated to Australia and who was having a child. Shortly after her arrival in Australia Ms Nachar had met her first husband, who was also of Lebanese descent, and had married him in an Islamic ceremony. The marriage had subsequently broken down and Ms Nachar was in the process of obtaining a divorce at the time that she had returned to Lebanon and then encountered Mr El-Abass (transcript 16 November 1999: 34-40).
Ms Nachar said, in her personal testimony, that at first she had just talked on the phone to Mr El-Abass. He had told her a number of things about his past including his attempts to enter Germany illegally and also about how he had left the Lebanese police force. In March or April 1997 Ms Nachar said that she met Mr El-Abass face to face and the couple started to go out together.
In his personal testimony to the Tribunal Mr El-Abass said that he had first met Ms Nachar in February or March 1997 and that she had contacted him first. At that time there was nothing in their relationship but after about three months it became serious (transcript 19 January 2000: 18). Before Ms Nachar returned to Australia in July or August 1997 Mr El-Abass said that he had met Ms Nachar's parents and she had met his. Prior to her departure the couple had decided to get married but because Ms Nachar's divorce had still not been finalised in Australia it was not possible to fulfil this ambition. Mr El-Abass also said that Ms Nachar knew about his marriage to Ms Smith and all the details of his life before she returned to Australia (transcript 19 January 2000: 18-19).
Shortly after Ms Nachar's return to Australia her marriage to her previous husband, Mr Chafic Kak, was dissolved. The decree nisi became absolute on 15 September 1997 (T26:219). On 8 December 1997 the Family Court ordered, by consent, that Ms Nachar's child by her first marriage, Sarah Kak born on 1 July 1994, should reside with Ms Nachar but that her former husband should have access to his daughter on a regular basis. The order also stated that Sarah be allowed to travel to Lebanon with her mother for a period of up to one year. The order further stated that the parties were to be the joint owners of all other personal or real property assets which were not specifically referred to in the order (T26:240-241).
According to the personal testimony provided to the Tribunal by Ms Nachar, the arrangement regarding her travel to Lebanon with her daughter was only secured by her agreeing to relinquish any rights over the family home. Ms Nachar said that they had not lived in the family home but with her former husband's mother and the house had been rented out. She also claimed that her former husband, who was a panel beater, had practised this profession but had also been obtaining Social Security payments for being unemployed. He was paying no child support for his daughter Sarah (transcript 16 November 1999: 36-38).
In December 1997 Ms Nachar, accompanied by her daughter Sarah, returned to Lebanon (T36:276). About one month after Ms Nachar returned to Lebanon she married Mr El-Abass in an Islamic ceremony. No wedding party was held on this occasion but the marriage was consummated. In March 1998 a civil marriage was conducted under Lebanese law (T28:246; transcript 19 January 2000: 20). In May 1998 Mr El-Abass lodged his application for a spouse visa to migrate to Australia, sponsored by his wife Ms Nachar (T25:193).
On 17 June 1998 Mr El-Abass was interviewed at the Australian Embassy in Beirut in regard to this latest visa application. The interview notes taken on this occasion by the departmental official had the following to say about the circumstances which Mr El-Abass described to her surrounding the earlier spouse visa associated with Ms Smith, and his current relationship with Ms Nachar:
He came back to Lebanon and applied for a spouse visa on 241296. The sponsor also did not come to Lebanon.
That application was refused because he let the application lapse after he found out that the previous wife was a drug adict [sic] and he left her. When he went to get his ppt from the agent Joukhadar the agent told him that his application was already refused.
Says he did not have any divorce with her as he had to go back to Germany to do it which he can not [sic] do. But she is now considered divorced as she went back to her religion. She converted to Islam when they got married but then converted back to Christianity. So according to his religion she is divorced by this change of religion.
PA never saw that wife again.
Current relationship?
When PA came from Germany in November 96, the current sponsor called him and told him that she was told by a friend that he has brought some letters to her from Australia. PA told her that he was in Germany and not in Australia and he does not have any letters for anyone form [sic] A/a. She told him her name is Rana at the beginning.
PA had a friend from school in Lebanon called Nisreen Nashabi and the sister of Nisreen was a friend of the sposnor [sic]. So she gave the telephone no. for PA just as a game. They were joking with him. The sponsor kept on calling PA for around three or four months on the phone.
Once she called his house and asked PA's mother where does he work as she wants to go see him at work for something urgent. She went and saw him at work for the first time just to see how he looks like but did not speak to him.
Then she called him and told him that she passed by his shop with two of her friends and she saw him. And then she gave him her real name.
They kept on talking to each other on the phone for around two more months before he met her personally. PA was not interested to see her then as he was still married to the previous wife. Later on he found out about the problems of the first wife and that she is a drug dealer and that she has another boyfriend in Australia.
Meanwhile the current sponsor was still calling him and he started become [sic] more close to her. As he [sic] always listened to his problems and she knew about all the things that happened to him and she always offered to help him.
Then they met personally in February 97 when she passed by his shop. He did not recognise her well but his friends who works [sic] with him told him that this is the girl who passed by once with her friends and were watching you. So he followed her and spoke to her. And this was the first time he saw her.
The sponsor kept on passing by his shop and seeing him. Then he used to see her for few times next to his house in Tripoli where she was taking some courses in English.
Then they agreed to go out with each other.
Almost in July/August 97 they decided to go seriously with this relationship but he told her taht [sic] he will not propose officially to her parents unless she goes back to A/a and finalises her divorce. (She was still married Islamically to her previous husband then and had a daughter).
Sponsor went to A/a and stayed there for aroung [sic] six months to finalise her divorce and then came back to Lebanon.
Sponsor went to Australia in 93 as a visitor and this is how she met the previous husband. Then she came back here and he followed her to Lebanon and sponsored her to A/a.
Date of her application was 241193.
1.20 j limitation applies on this application
Problems started directly with her previous husband. They decided to wait for the sake of the daughter. But things went worse. The husband told her that he will accept to divorce her islamically [sic] if she gives him the house and she can keep teh [sic] daughter. And that is what happened.
She obtained her divorce on 011297.
(PA interrupted me asking if he is goin [sic] to be long at the IV as his wife would be very jealous now and especially when she sees that he is being interviewed by a female)
Sponsor came back to Lebanon at the end of 97 with her daughter.
Engagement party was held on 271297 at her neighbor's [sic] place.
Provided photos of the engagement:photos of the couple together with family members around putting on the engagement rings.
They signed the book twice: once 160198 just by a paper at the cheikh's house as they wanted to live together and her islamic [sic] divorce was still not finalised.
Marriage was consummated then. But they did not live regularly together as she had to take care of her daughter. The second time they signed the book was on 190398 (he does not remember the date). This second signing of the book was registered in the court.
They had the wedding party at her place a week after the second signing of the book. They did not have a big party as his uncle died recently.
Provided photos of the wedding:just photos of the couple taking photos with the family members:his parents and her parents only.She is wearing white.
The sponsor then moved to his parent's place with her daughter. They have their own room: p… room, one big double bed, one small window and one big one, a wardrobe, a big stereo.. She does not wear a night gown at night, sleeps with her undearwears [sic], yesterday it was pink color [sic].
He usually wakes up before her.
(PA asked me when did the Lebanese people start doing IVs.It seems that they trust us to let us do the interviews alone. I told him that they don't hire employees that they do not trust. But the final decisions on applications are still made by SMOs.
Sponsor is now 4 months pregnant.
(T41:292-294)In August 1998 Ms Nachar and Sarah once again returned to Australia (T36:276). On 1 December 1998 Ms Nachar's second daughter, Serena, was born (A9). On 10 March 1999 Mr El-Abass was advised by the respondent that his application for a visa for permanent entry into Australia had been refused on the grounds that he was not a person of good character (T40). In September 1999 Ms Nachar and Serena travelled from Australia to Lebanon and stayed with Mr El-Abass in Tripoli. They returned to Australia in October 1999 and have not subsequently departed from Australia.
CONSIDERATIONSection 501 of the Act requires the consideration of two distinct issues by the Tribunal. The first of these is whether the Tribunal is satisfied that Mr El-Abass, having regard to his general conduct, is not of good character. The second issue, which is only required to be answered if the first is resolved unfavourably for Mr El-Abass, is whether in the circumstances the Tribunal should still grant him the visa he seeks, despite an adverse finding as to character.
Good Character Issue
Submissions and Tribunal's ViewsIn their oral and written submissions made to the Tribunal at the conclusion of the hearing both parties referred to the decisions of the Full Federal Court in Irving and Baker and agreed that the interpretation provided in those decisions regarding the meaning of "good character" should be followed in the present matter. In particular the words "good character" should be taken in their ordinary sense, namely, a reference to the enduring moral qualities of a person [Irvingv Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432]. It was also agreed by the parties that s 501(2)(a) required the Tribunal to be satisfied "in relation to the actual present state of a person's character" : Minister for Immigration, Local Government and Ethnic Affairs v Baker (1997) 73 FCR 187 at 194. The question is whether the applicant is not of good character, not whether the applicant was not of good character.
On behalf of the applicant, Mr Zipser submitted that in considering whether Mr El-Abass was not of good character having regard to his general conduct it was useful to review the reasons given for this finding as set out in the delegate's statement of 22 April 1999 (T2:11-14, and also paragraphs 5 and 6 above). In that statement it was alleged that Mr El-Abass had entered into a contrived marriage with Ms Smith, an Australian citizen, in an effort to gain permanent residence in Australia; had entered Germany illegally on two occasions and lodged applications for political asylum based on false claims; had deserted the Lebanese police force; had failed to disclose a conviction against him in Lebanon for having deserted the police; had left Lebanon illegally for Venezuela in 1993; and had presented false and misleading information to the respondent's officials in his visa applications.
Contrived Marriage to Ms Smith
Mr Zipser said that in regard to the marriage to Ms Smith, Mr El-Abass had given evidence that it was a genuine relationship and that following Ms Smith's return to Australia in August 1996 the couple had continued to write and speak to one another. In December 1996 Ms Smith had completed an amended sponsorship for migration form for Mr El-Abass and had also telephoned the Embassy in Beirut in February 1997 about the progress being made with Mr El-Abass' visa application. These were all actions which suggested that the marriage was a genuine one.
Responding to these contentions, Ms Coombes, on behalf of the respondent, submitted that Mr El-Abass married Ms Smith in order to gain entry to Australia at a time when his second application for refugee status in Germany, based on false claims, was still pending. Ms Nachar in her testimony had said that one of the factors influencing Mr El-Abass in forming this relationship was to enable him to come to this country (transcript 16 November 1999: 56).
The Tribunal did not, unfortunately, have the benefit of personal testimony from Ms Smith about her relationship with Mr El-Abass. From the evidence that was presented to the Tribunal it is clear that Mr El-Abass, who was about 27 years of age at the time that he met Ms Smith, had previously sought entry to Australia as a visitor. He had a brother and sister in this country, and was aware that his brother had gained entry to Australia after being successful in a refugee application in Germany. Against this background the very short nature of Mr El-Abbas' "courtship" of Ms Smith before entering into an Islamic marriage, together with the almost immediate lodging of a visa application sponsored by Ms Smith for him to come to Australia, is fraught with suspicion. When considered in context with other earlier fraudulent claims made by Mr El-Abass to justify his German refugee applications, and the circumstances surrounding his entry to Germany discussed in more detail below, the Tribunal is satisfied that Mr El-Abass did not enter into the relationship with Ms Smith for genuine reasons but rather was using a young and still relatively immature Australian citizen to gain entry to Australia. The Tribunal also finds quite unconvincing his contention that he had already intended to end the relationship with Ms Smith prior to receiving official notification of the refusal of his visa application because of Ms Smith's withdrawal of her sponsorship. In early February 1997 Mr El-Abass attended an interview at the Australian Embassy in Beirut and demonstrated that he was still interested in continuing to be sponsored by Ms Smith even though he claimed to have knowledge that Ms Smith was a drug addict, and had a boyfriend. These assertions made by Mr El-Abass about Ms Smith's bad character have a hollow ring when measured against his own actions.
False Refugee ClaimsIn regard to the false claims made by Mr El-Abass for political asylum in Germany, Mr Zipser acknowledged that these claims had been made and that Mr El-Abass had contravened German immigration laws. However, Mr Zipser submitted that Mr El-Abass' motive for these actions had been to get out of Lebanon. Mr El-Abass had not harmed or intended to harm anyone and it was unlikely that he would make false claims or statements in other circumstances.
Ms Coombes, in her submissions, contended that Mr El-Abass' attempts to leave Lebanon on two occasions by falsely claiming refugee status in Germany demonstrated a blatant disregard for the laws of both Lebanon and Germany. Mr El-Abass had also given contradictory evidence about the circumstances under which he was smuggled back into Germany. Mr El-Abass' second entry had been facilitated by persons who regularly smuggled people into that country and were involved in the industry of people trafficking. The fact that Mr El-Abass knew and was involved with such smuggling activities was in itself indicative that Mr El-Abass was not of good character.
Given Mr El-Abass' own admission of making false refugee claims in Germany, and his apparent lack of either contrition or regret for these actions which he justified on the basis that they would enable him to escape from the economic and related disadvantages that he said he suffered in Lebanon, the Tribunal can draw no other conclusion than that they are far from favourable indices of Mr El-Abass' enduring moral qualities. The Tribunal is also satisfied that Mr El-Abass was neither consistent or frank in his account of the circumstances surrounding his second illegal entry into Germany. In his personal testimony he denied having obtained a false Dutch passport from the smugglers who took him from Lebanon, through a number of countries, to Germany. There is no reason, however, to doubt the accuracy of the interview records maintained by the respondent's officials about Mr El-Abass' initial description of these events, nor is there any reason to accept his subsequent retraction of the initial account he had provided of the smuggling operation. As a former police officer, and as a person with educational qualifications and abilities that enabled him to commence tertiary studies, the Tribunal is satisfied that Mr El-Abass had both the intellectual and related skills required to engage in sophisticated schemes to gain unlawful entry into Germany and Australia. His actions were not those of a unsophisticated and desperate person seeking refuge from the brutalities of the Lebanese diaspora, but rather those of a ruthless and calculating person determined to escape from that country by whatever means were available.
DesertionIn relation to Mr El-Abass' desertion from the Lebanese police force Mr Zipser contended, on his behalf, that Mr El-Abass had volunteered originally to join the force. He was subsequently required to work in a very dangerous job and had only deserted after seeking to tender his resignation. He had merely breached his contract of employment when he deserted the police force, rather than committing a criminal offence for which he had subsequently been convicted. He had paid a civil fine in 1995, and in December 1996 the authorities in Lebanon had issued a certificate stating that Mr El-Abass had not been convicted of any crimes in Lebanon (T21).
On behalf of the respondent, Ms Coombes contended that the fact that Mr El-Abass had left the police force in the way he described was indicative of his attitudes towards the law, and his responsibilities under the law.
The reasons proffered by Mr El-Abass for leaving the police force have already been described (see paragraph 14 above). They are reasons which suggest that he is a person who considers his own personal welfare to be predominant in most situations, including those linked to his membership of a disciplined service like the police force. The fact that Mr El-Abass did not seem to view his desertion as being in any way reprehensible or questionable behaviour does not portray him in a very favourable light.
Illegal Departure for VenezuelaIn relation to the contention made about Mr El-Abass' illegal departure from Lebanon for Venezuela in 1993 the Tribunal is satisfied from the evidence before it that Mr El-Abass did have a visa to travel to Venezuela and did not depart from Lebanon without permission.
False or Misleading InformationIn regard to certain false or misleading information presented to the respondent's officials by Mr El-Abass in his visa applications Mr Zipser acknowledged, on behalf of the applicant, that on occasions such false or misleading information had been provided but the frequency was low and the severity of the transgressions was also, in a comparative sense, minor. In his most recent application for a spouse visa which had been lodged in May 1998 it was not suggested that there were any false or misleading statements. Thus whatever Mr El-Abass might have done in the past he was now making a full and frank disclosure of his circumstances.
In the submissions made on behalf of the respondent, Ms Coombes contended that Mr El-Abass had committed an offence against Australian migration law by providing false information in his application for a visitor visa in 1995. He had also made other false statements in breach of migration laws in Germany. These were actions which were further indicative of his bad character and were also actions which would give rise to concerns in the Australian community about Mr El-Abass being allowed to come to this country.
The Tribunal is satisfied on the evidence before it that Mr El-Abass did make false and misleading statements. He acknowledged, as already stated, the false nature of his refugee claims in Germany. In addition, there is no doubt that his visa application to come to Australia in 1995 contained a false statement that he had not been previously deported from any country. Mr El-Abass' somewhat dismissive explanation of this statement was that the application form had been completed by his brother and he had merely signed it. He did not appear to view this breach as in any way being a serious matter - a further indication of his apparent unwillingness to view transgressions of immigration laws and procedures as issues of concern or import.
Recent ConductMr Zipser contended that quite apart from the matters which have just been reviewed, there was evidence before the Tribunal which indicated that Mr El-Abass had qualities which suggested he was now of good character. This evidence included the fact that he loved and cared for his wife and also Sarah and Serena. He had been a loving and caring son to his parents and was currently living with and looking after his mother. He had strong relationships with friends in Lebanon and respected traditional Islamic values by not living with either Ms Smith or Ms Nachar until after they had been married under Islamic law. He was also willing to work hard when work was available, and he had demonstrated this capacity for work both in Lebanon and in Germany. Thus, overall the Tribunal should judge Mr El-Abass to have been affected in a positive way by his relationship with Ms Nachar, and find that he is now of good character.
In her submissions, Ms Coombes contended that overall the evidence pointed clearly to Mr El-Abass not being of good character. While Ms Nachar was undoubtedly genuine about her relationship with Mr El-Abass the same could not be said for his relationship with her. Ms Nachar was the partner who had initiated the relationship and Mr El-Abass only became interested in pursuing it once his sponsorship by Ms Smith had ended and he saw Ms Nachar as a person who could give him the opportunity to gain entry to Australia. There was evidence before the Tribunal that Mr El-Abass had made only a very minimal contribution to Ms Nachar's financial circumstances, and that Ms Nachar had been left largely on her own to cope with both her immediate family and financial difficulties.
Given the chronology of events surrounding Mr El-Abass' marriages to two Australian citizens, and the acknowledged and blatant breaches of immigration laws which have been described, the Tribunal believes that there are good reasons for considering that Mr El-Abass' latest relationship with Ms Nachar is no more than another cynical and self-serving device to enable him to fulfil his long-standing desire to leave Lebanon for another country which will guarantee him an improved quality of life. By his overt and covert activities since 1993, which have been set out in detail, the Tribunal can draw no conclusion other than that Mr El-Abass is a person who shows few redeeming moral qualities and is a person who is not now of good character.
Refusal IssueHaving reached this conclusion the Tribunal is required to consider the second issue which arises under s 501, namely, whether notwithstanding a finding that Mr El-Abass is not a person of good character, the power to refuse the grant of a visa should not be exercised in the circumstances of the case. The MSI provides the following guidance on the approach that should be adopted by the Tribunal when exercising this discretion:
In considering whether or not to grant the visa following an adverse character finding, consider all relevant factors including:
the circumstances of the person at the time of the application. These include but are not limited to:
·genuine marriage to, or genuine de facto relationship with, an Australian citizen/permanent resident;
·the best interests of any child associated with the visa applicant/s;
·the strength of family, social, business and other ties to the Australian community;
·periods of previous lawful residence;
·the degree of hardship which would be caused to immediate family members lawfully resident in Australia (especially Australian citizens);
·family disposition, both in Australia and overseas; and for protection visa applicants, whether refusal will lead to a breach of international obligations under the Refugee Convention (see section 8).
Whether the application is for a temporary visa or a permanent visa and the purpose of entry to or stay in Australia; and
Whether undue harm would be likely to result to the Australian community if the visa was granted. This would include an assessment of the likelihood of the person re-offending or engaging in unacceptable conduct in Australia. This is a primary consideration, equal in weight to any other primary consideration.
The above list of matters is not exhaustive.
(T5)
Relationship
Mention has already been made of the Tribunal's view of the relationship between the parties. In regard to the nature of this relationship, and in general in the testimony she provided to the Tribunal, Ms Nachar was a most credible witness. Her first marriage to Mr Kak appears to have been one marred by constant brutality and oppression. In the course of extricating herself from this marriage she appears to have been mercilessly exploited by her former husband who utilised what can only be described as emotional blackmail in order to obtain full possession and control of the family home. Ms Nachar seems to have received no financial support for her daughter Sarah from Mr Kak, and it is only through the provision of a range of social welfare services that she has been able to survive under extremely difficult circumstances. Some indication of these circumstances can be obtained from the following letter she wrote to the Tribunal with the assistance of her social worker, Ms Karena Morrison (A3).
To whom it may concern,
I know that I'm not good at English but there is no one who can help me explain what is inside me and it's very hard to let other people explain it. This is why my case manager Karena Morrison has helped me write this. Firstly, I'm not asking for anything but to be with my husband and kids. It is very hard for me to live without one of them. I have asked my X - husband to let me go with my daughter to live with my current husband, but he said no way and don't ever think about it. It caused me a lot of problems to take her over seas [sic] the first time. It was a very hard time, I cried a lot and I started to take very strong medication just to help me relax and to forget the problems for a little while.
My X - husband was like an animal, I use to live in hell with him, and when we separated no one can imagine what sort of life was mine because of him. I struggled every day visiting the family court to get permission to take my daughter over seas [sic]. Finally they let me but forced me to give up my house without asking about my rights or my daughter's rights.
At present I am waiting every payday to get my pension from Centrelink to buy only the urgent things for my two daughters and me. My first daughter use [sic] to see her father every second weekend and had a good relationship with him. She loves him and loves me a lot. She's five years old and starting to understand things about life. She's always asked me about the baby's father (my current husband), when we will see him, and why doesn't he come and cuddle and kiss her sister like her father does for her.
I just want one person to understand that I'm looking for a family to have breakfast with, a husband to share the lonely days, to share my bed, and to help look after my children. How can a seven-month-old start to say daddy without seeing him? I don't think it will cost anyone who's in charge of this matter to let a fourth member of one family live in happiness. To live in the same country, in one house or even in one room in these cold days would bring warmth to us all. It would be the best thing in the world to live with the person I love, and the only one who can feel with me every thing and can understand me. Someone to share these lonely days and nights would mean the world to me.
So please, I just need my husband to look after me and help me bring up my children as well as possible.Yours sincerely,
Mariom Nachar
(A3)
The Tribunal is satisfied that Ms Nachar does have a very strong and continuing desire to be reunited with her husband, and that from her perspective the relationship is a loving and meaningful partnership. She has expended large amounts in phone call expenses to try to maintain contact with her husband in Lebanon (see exhibit A8). Mr El-Abass also indicated that he had sought to maintain contact with his wife and family in Australia and that he assisted in the payment of an airfare for them to return to be with him in Lebanon during September and October 1999. He also indicated that he had contributed about US$500 to the financial resources of his wife since they were married.
Best Interests of the ChildrenAs is apparent from the evidence there are two children involved in this proceeding – Sarah, who is now almost six years of age, and Serena, who is just over one year old. Both of these children are Australian citizens as is Ms Nachar, their mother.
The Tribunal had no direct evidence from any witnesses, other than Ms Nachar and Mr El-Abass, about what would be in the best interests of Sarah and Serena. However, the Tribunal was provided with the following recent statement from a social worker at the Bankstown Mental Health Service, Ms P.F. Kent:
TO WHOM IT MAY CONCERN
RE: MRS MARIAM NACHAR
21 BARKL AVENUE PADSTOW 2211I write as Mrs Nachar's new Case Manager and in support of her application for her husband, Mohamed Al Abbas, to be granted permission to emigrate to Australia.
Mrs Nachar is the mother of two daughters: Sarah, date of birth 1.7.94 and Serena, date of birth 1.12.98. Sarah is the daughter of her ex-husband; Serena is the daughter of her present husband, Mohamed. She lives in a Department of Housing house with her daughters, address as above. Her husband lives in Lebanon.
When I visited Mrs Nachar at her home on 11 January 2000 I noted that her children were clean and neatly dressed; they were friendly and well-behaved and appeared to be well-adjusted. The home was neat and well kept.
Mrs Nachar gives indications of clinical depression. She reports that she rarely gets to sleep before 4.30 am, and has only a couple of hours of sleep before her children wake her. She says she has eaten very little over the past month, which her extreme slimness would suggest to be true. Her energy levels are low and she finds the tasks of housework and of managing her children increasingly difficult. She has persistent thoughts of sadness and hopelessness and cries a great deal. Her condition is not helped by her financial situation. She says she frequently rings her husband in Lebanon for support, despite the fact that this puts a considerable strain on her finances.
Mrs Nachar attempted suicide by overdose two years ago and also one year ago. Both attempts were reactions against stress which she was finding intolerable at the time. At present she says she does not want to be dead, just "to sleep for a month". She also says she would not attempt suicide because she does not want to leave her children. However, given per [sic] past history, the possibility cannot be ignored.
From December 1997 to August 1998 Mrs Nachar lived in Lebanon, where she married Mohammed. Her daughter, Sarah, was with her. Sarah's father had given permission for Sarah to go, in exchange for Mrs Nachar's renouncing any rights to their marital home. On Mrs Nachar's most recent visit to Lebanon, September 1999, she had to leave Sarah behind as her father refused to let her leave Australia. He still refuses to consider allowing Sarah to leave the country, and Mrs Nachar is emphatic that she would not go to live permanently in Lebanon and leave Sarah behind. Also she is settled in Australia, has some family here, and wishes to remain.
Mrs Nachar says she is happy when with Mohamed,; [sic] he is a good husband and father, who would help her with the children and help her with her financial problems. She desperately wants a normal family life.
I am concerned that the refusal of the Court to grant Mohamed Al Abbas permission to live in Australia could lead to worsening depression with unfortunate consequences for herself and her daughters.
(A9)
In submissions made in regard to the best interests of the children, Mr Zipser, on behalf of the applicant, contended that the Tribunal should find that it is in the best interests of both children that Mr El-Abass be permitted to come to Australia. In relation to Serena, Mr Zipser said that as her natural father Serena would suffer if she were not permitted day-to-day contact with him. Ms Nachar would have difficulty raising her if Mr El-Abass was obliged to remain in Lebanon, and on the basis of the evidence given by both Mr El-Abass and Ms Nachar, it was likely that Mr El-Abass would be a good father to Serena.
In relation to Sarah, Mr Zipser said that Mr El-Abass was now her stepfather. Sarah had a natural father in Sydney whom she occasionally saw but Ms Nachar had the day-to-day care of her daughter, who would benefit also from day-to-day contact with a father figure. The relationship between Mr El-Abass and Sarah was established during the period that she had been with her mother in Lebanon. The Tribunal should draw the conclusion from the evidence that the relationship between Sarah and Mr El-Abass was good.
On behalf of the respondent Ms Coombes contended that it was for the Tribunal to determine whether or not it was in the best interests of both children to have Mr El-Abass present in their lives. The evidence showed that Mr El-Abass had either been unable or unwilling to provide financially for Ms Nachar or her two daughters, despite their very poor financial situation and Ms Nachar's fragile state of health. Mr El-Abass was also not a good role model for the two children based on his bad character.
Hardship and Harm to the CommunityMr Zipser submitted that a significant degree of hardship would be caused to Ms Nachar if her husband was not permitted to come to Australia. This was evident from the personal testimony that Ms Nachar had given to the Tribunal as well as from the attempts that she had made to maintain contact with her husband throughout the period of their separation. There was strong evidence concerning Ms Nachar's poor state of mental health (see S1, S2, S3 and exhibits A1 and A2) as well as the letter from her current case manager which pointed to self-destructive behaviour on her part (A9).
Ms Coombes said that the respondent conceded that Ms Nachar had suffered hardship since her return from Lebanon and would continue to face hardship if her husband were to be refused entry to Australia. However, this hardship was not sufficient to result in the exercise of the discretion in Mr El-Abass' favour. Ms Coombes contended that if Mr El-Abass were to be granted a visa it would be rewarding him implicitly for the deception that he had engaged in. It would also be subversive of the spirit and intent of Australia's legitimate immigration program: see Phoc Tuong Tran and Minister for Immigration and Multicultural Affairs (AAT 12357, 30 October 1997); Vin Tran and Minister for Immigration and Multicultural Affairs (AAT 12376, 7 November 1997).
CONCLUSIONThe Tribunal has already expressed its findings and views concerning Mr El-Abass' character. He has been shown, to coin a well-known phrase, to be "an utter cad" and a person deserving of little if any sympathy given his past misdeeds and general conduct. Nonetheless, for a period of nearly two years he has been the lawful wedded husband of an Australian citizen, and the father of a child who is also a citizen of this country. There is also another Australian child who has a stepparent relationship with Mr El-Abass. The evidence suggests that Mr El-Abass has established a caring relationship with both of these children, and that each of them would benefit from his physical presence on a stable and continuing basis. It is also clear that any such presence can only occur in Australia since Sarah, Ms Nachar's daughter by her first marriage, is precluded from leaving this country because of the opposition of her natural father.
There is also compelling, disturbing and uncontested evidence before the Tribunal of the effect that Ms Nachar's separation from her husband is having on her mental health and well-being. She has already exhibited self-destructive behaviours and there is always the possibility that this type of behaviour could be repeated. Given this possibility and its potential for impacting in a most tragic manner on the welfare of the two children now in her care, the Tribunal feels all but compelled to exercise the discretion that it has in favour of Mr El-Abass. To permit him now to enter Australia may well be seen by some members of the community to be rewarding Mr El-Abass for his deviousness and deceit. It may also be a decision which could be said by some to weaken the integrity of the nation's well-established and principled scheme of migration, which rewards only those who are law abiding and follow the established rules and procedures. However, this nation is also one which is compassionate and mindful of its obligations under the United Nations Convention on the Rights of the Child. These obligations, linked to a potential for extreme damage being caused to the lives of three Australian citizens who are most directly affected by this decision, lead the Tribunal to conclude that this is a case in which it should exercise its discretion not to refuse the grant of the visa that Mr El-Abass seeks.
The Tribunal reaches this conclusion with considerable reluctance. However, this reluctance is mitigated to a degree by the knowledge that the visa that Mr El-Abass will obtain is only provisional in its effect. He should thus be aware that if his motives are purely selfish and manipulative, there will still be ample scope to refuse him the benefits of a permanent visa in the future, and to expel him from the country. There is also, in a more positive and hopeful vein, the opportunity for Mr El-Abass to demonstrate, with the support of a loyal and caring wife and the responsibilities of fatherhood, that he can be a person of good character and make a contribution to Australian society.
The decision under review is thus set aside and the matter remitted to the respondent for reconsideration in accordance with the direction that Mohamad Mahmoud El-Abass meets the requirements of clause 4001 of the public interest criteria in Schedule 4 of the Migration Regulations and s 501 of the Migration Act 1958 for the grant of a sub-class 309 spouse (provisional) visa, in that despite finding that the refusal to grant the visa is justified, the discretion under s 501 of the Migration Act 1958 be exercised in his favour.
I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Dr D Chappell.
Signed: .....................................................................................
AssociateDate/s of Hearing 16 & 17 November 1999; 19, 20 & 21
January 2000.
Date of Decision 25 February 2000
Counsel for Applicant Mr Ben Zipser
Representative for Respondent Ms Sharn-Adelle Coombes
ATTACHMENT 1
CHRONOLOGY
Date Source
Mr Mohamad Mahmoud El-Abass travels from Lebanon to Venezuela. 85 (T) 5 (S) MFI 2 and 4
Mr El-Abass leaves Venezuela. 85 (T) 5 (S)
Mr El-Abass enters Germany through Hamburg. 207, 291 (T) 5 (S)
July 1994 Sarah born in Australia. Parents are Ms Mariam Nachar and Mr Chafic Kak. 202 (T)
November 1994 or March 1995 Mr El-Abass deported from Germany to Lebanon. 116, 207, 291 (T) 5 (S)
July 1995 Mr El-Abass lodges application for visitor visa to Australia. 82 (T)
August 1995 DIMA refuses to grant Mr El-Abass visitor visa. 100 (T)
October 1995 Mr El-Abass enters Germany through Turkey. 118, 291 (T) 5(S)
November 1995 Mr El-Abass convicted by Military Court in Lebanon of escaping from the gendarmerie. 253 (T)
July 1996 Mr El-Abass marries Ms Erin Smith in Germany. 183 (T)
July 1996 Mr El-Abass lodges application for spouse (later changed to prospective marriage) visa to Australia. Sponsored by Ms Smith. 104 (T)
October or November 1996 Mr El-Abass deported from Germany to Lebanon. 157, 207 (T) 5(S)
October 1996 Ms Nachar and Sarah travel from Australia to Lebanon.
February 1997 Mr El-Abass interviewed at Australian Embassy, Beirut in respect of prospective marriage visa application. 5 (S)
March 1997 Decision by DIMA refusing to grant Mr El-Abass prospective marriage visa. 192 (T)
February 1997 Mr El-Abass and Ms Nachar meet for first time. 293 (T) 21 (P)
July 1997 Ms Nachar and Sarah return to Australia from Lebanon. 293 (T)
August 1997 Family Court declares dissolution of marriage of Ms Nachar and Mr Kak. 219 (T)
December 1997 Family Court orders that Sarah is allowed to travel to Lebanon with Ms Nachar for up to one year. 240 (T)
December 1997 Ms Nachar and Sarah travel from Australia to Lebanon. 276 (T)
March 1998 Mr El-Abass and Ms Nachar marry in Lebanon under civil law. 246 (T)
May 1998 Mr El-Abass lodges application for spouse visa. Sponsored by Ms Nachar. 193 (T)
17 June 1998 Mr El-Abass interviewed at Australian Embassy, Beirut in respect of spouse visa application. 291 (T)
August 1998 Ms Nachar and Sarah return to Australian from Lebanon. 276 (T)
December 1998 Serena born in Australia. Parents are Ms Nachar and Mr El-Abass. 45 (P)
March 1999 Decision by DIMA refusing to grant Mr El-Abass spouse visa. 283 (T)
September 1999 Ms Nachar and Serena travel from Australia to Lebanon. 49 (P)
October 1999 Ms Nachar and Serena return to Australia from Lebanon. 50 (P)
* Abbreviations: (T) refers to page reference in section 37 or T documents
(S) refers to page reference in Supplementary T documents
(P) refers to page reference in transcript of November 1999 proceedings
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