Najmeddine and Minister for Immigration and Multicultural and Ind Igenous Affairs

[2003] AATA 880

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 880

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2003/7

GENERAL ADMINISTRATIVE  DIVISION		)
Re		RIMA NAJMEDDINE

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr S P Estcourt QC., (Deputy President)

Date5 September 2003

PlaceMelbourne

Decision The decision under review is affirmed.

[Sgd S P Estcourt]

Deputy President

CATCHWORDS

Immigration - spouse visa - whether applicant fails to satisfy the Tribunal he passes the character test - past criminal conduct - whether discretion should be exercised - Ministerial Direction No 21 - genuine marriage to an Australian citizen - hardship to Australian family members - decision to refuse affirmed.

Migration Act 1958 – s501

Re Papak and Minister for Immigration and Multicultural and Indigenous Affairs (2003) AATA 518

REASONS FOR DECISION

5 September 2003 Mr S P Estcourt QC., (Deputy President)           

1.      In this case the Tribunal refuses Ms Najmeddine’s application to set aside the Minister’s denial of a visa to her husband Ahmad Taleb to allow him to come from Lebanon to Australia to join her.

2.      The reason for the refusal of Ms Najmeddine’s application is that it was for Mr Taleb to satisfy the Tribunal that he is a person of good character, and he has failed to do so.

3.      In Mr Taleb’s visa application, in answer to the question whether he had been convicted of a crime or offence in any country, he answered “yes” and provided the following details:

“1)On 18/06/98 sentenced to LL300,000 fine by Penal Court in the North for Threat

2)On 19/09/2001 sentenced to 1 year imprisonment and LL300,000 fine by Military Court for Delinquencies for buying stolen goods with prior knowledge.”

4.      The Tribunal does not know the nature of the composition of, or the extent of the lawful jurisdiction of, the Penal Court and the Military Court concerned, and the Tribunal does not know of the ingredients of the offences of “Threat” and “Delinquencies”, but it is up to Mr Taleb to satisfy the Tribunal that he is of good character, in the face of the apparent features of the two convictions listed by him in his application.

5.      Mr Taleb’s evidence directed to satisfying the Tribunal of his good character consisted of a statutory declaration dated 2 November 2002 and oral evidence given by him by telephone from Lebanon.

6.      In his statutory declaration he stated:

“I, Ahmed Taleb, Applicant No.F2002/020174, do solemnly and sincerely declare that concerning the first sentence on my penal record on 18/06/98 was the result of a fight between a motorist and me.  We exchanged insults and threats in a traffic jam.  It also happened that I was carrying my licensed gun, being the partisan of an affluent personality, and the guy declared that I threatened him with that gun, which didn’t really occur.  We were both taken to the station, I was only sentenced to a fine.

As to the second sentence of 19/09/2001, it happened that some mobsters attacked a jeweller’s and later on came to my jewellery shop, and forced me at gunpoint to melt the gold they have robbed.  Later, they were caught by the police and were asked about the one who melted the gold.  They gave my name.  I was arrested, charged with accomplice, found not guilty at the court, but fined for having known about the stolen goods when being melted, to which fine they added one-year imprisonment for the same doubt.

Both sentences were executed.” (emphasis added)

7.      In his oral evidence to the Tribunal, Mr Taleb said:

“A man alleged that I threatened him and I was charged at that time.  I was innocent at that time.  I only had to pay a fine.  I had a licence for a gun at that time.  I had a licence because generally I work in the jewellery industry.  In relation to the second case it occurred in 1997.  The people who approached me one night with the gold jewellery were armed.  They threatened me.  I melted down the gold at gun point.  I didn’t receive any payment.  They offered me money but I didn’t take any.” (emphasis added)

8.      Further, as to the offence of “Delinquencies” he said:

“I was held then for three months in a military prison.  I was represented by a lawyer. She was able to ask questions of the witnesses.  Generally she couldn’t actually get to what she was after.  She asked two of the accused about my involvement in the case.  Hussain and Hazim.  She asked them if I received any money to melt the gold.  One said no and the other refused to answer.  She also asked if I took any gold.  Hussain said no.   The hearing took from morning until evening.  It depends when your turn comes.  It was a military court.  I was convicted but I was quite sure of my innocence.  I thought of appealing but my solicitor said it would even take a longer time [than my sentence] and I would not have been released pending the appeal.” (emphasis added).

9.      The Tribunal accepts that Mr Taleb’s general reputation in Lebanon is good, and that he is well known and universally trusted.  However, good character in a case such as this is not concerned with the good standing and reputation of a person in their community, but with whether their enduring moral qualities are such that it is consistent with the public good of this country to allow them entry. 

10.     On the evidence advanced by and on behalf of Mr Taleb in this case, the Tribunal has not been satisfied that he is of “good character” in the relevant sense of that term.  His explanations set out above lacked detail, they ran contrary to the very fact of the convictions themselves, they were not supported by any material independent of his own claims about the matter and in the areas emphasised above by underlining they involved internal inconsistencies and/or illogicalities.  Further the Tribunal was also unimpressed by the glib way in which Mr Taleb gave his evidence, appearing to gloss over the fact of the convictions and regard them as insignificant.  In particular in respect of the offence of “Threat”, for which he was fined $AUD300, the equivalent of a month’s salary for an average earner in Lebanon, he said:

“It’s a minor matter, it has nothing to do with this [i.e. the appeal against the visa refusal].”

In the Tribunal’s judgment Mr Taleb was an unconvincing witness on these important matters.

11. In reaching the decision that Mr Taleb has not satisfied the Tribunal that he is of good character in the context of the “character test” established under s501 of the Migration Act 1958 (“the Act”), the Tribunal notes that the effect of s501 is to impose a burden on Mr Taleb to satisfy the Tribunal that he passes the character test. In this regard the Tribunal has instructed itself in accordance with the observations of Deputy President Forgie who reviewed the relevant cases on the subject in Papak and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 518 at [35]-[41].

12. That Mr Taleb has not satisfied the Tribunal that he passes the “character test” is not however an end to the matter. Section 501 of the Act permits the Tribunal to authorise the grant of a visa to an applicant who fails the test if, having regard to all of the circumstances of the case including a number of “primary” and “other” considerations set out in Ministerial Direction No.21, the Tribunal is satisfied that it ought to exercise its discretion in favour of the applicant.

13.     In this case there are, on the evidence, several of the “other considerations” which are relevant.  They are:

(a)Mr Taleb’s genuine marriage to Ms Najmeddine who is an Australian citizen;

(b)the compassionate claims of Ms Najmeddine as the “Australian partner” (but having regard to any knowledge on her part of character concerns about Mr Taleb before marrying him);

(c)the degree of hardship to immediate family members lawfully resident in Australia;

(d)evidence of rehabilitation or recent good conduct on the part of Mr Taleb.

14.     Mr Taleb appears to be a man who, apart from the matters of concern in this case, conducts himself in a manner acceptable to the standards of his community and there is no evidence of any recent or continued offending.  He is genuinely married to Ms Najmeddine, who although aware of his convictions at the time of their marriage, will suffer considerable hardship in the face of his visa refusal.

15.     Ms Najmeddine is only 20 years old and is a student hoping to go on to enrol in pharmacy at University.  She told the Tribunal that if Mr Taleb is not allowed to come to Australia she will go to Lebanon to join him.  She will not be able to continue her studies in Lebanon and will suffer other hardships there because she speaks little Arabic.  Moreover, Ms Najmeddine is the only child of her mother’s first marriage and both her mother, who is an Australian citizen and Ms Najmeddine will find the separation very hard to cope with.  Ms Najmeddine’s mother is also concerned for her daughter’s safety in Lebanon because of the political turmoil and lack of law and order she has herself observed there. 

16.     The Tribunal has taken all these matters into account, but is not satisfied that they outweigh the apparent seriousness and nature of Mr Taleb’s conduct in respect of which he has failed to satisfy the Tribunal of his good character.

17. The formal order of the Tribunal is that the decision of the respondent’s delegate dated 19 November 2002 refusing, pursuant to s501 of the Migration Act 1958, the grant of a subclass 309 spouse visa to Ahmad Taleb, is affirmed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)

Signed: K L Miller (Administrative Assistant)       

Date/s of Hearing  7 July 2003
Date of Decision  5 September 2003
Counsel for the Applicant         Frank Sabelberg
Solicitor for the Applicant           
Counsel for the Respondent     Derek Wood
Solicitor for the Respondent     Blake Dawson Waldron