Nersy and Minister for Immigration and Multicultural and Indigeno Us Affairs

[2003] AATA 921

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 921

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2003/122

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Adam Nersy

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Date17 September 2003

PlaceSydney

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

...............................................

RP Handley
  Deputy President 

CATCHWORDS

IMMIGRATION  - subclass 309 spouse (permanent) visa – character test – examination of the Visa Applicant’s immigration history – examination of claims for refugee protection – discretion that the Tribunal may exercise where the Visa Applicant fails the character test – necessity to balance the expectations and protection of the Australian community against any hardship to the Applicant – held discretion not to refuse the grant of a visa should be exercised in favour of the Visa Applicant.

Migration Act 1958 ss 499, 501(1), 501(6)(c)(ii)

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321

Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192

Rokabatini v Minister for Immigration and Multiculural Affairs (1999) 90 FCR 583

REASONS FOR DECISION

17 September 2003 Mr RP Handley, Deputy President          

1.      This is an application by Adam Nersy (“the Applicant”) for a review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) made on 18 November 2002 to refuse the grant of a subclass 309 spouse (permanent) visa to the Applicant’s spouse, Margueritte Youssef Issa (“the Visa Applicant”).

2. At the hearing of the matter, the Applicant was self-represented and the Respondent was represented by Sharon Hanstein, Solicitor, of Blake Dawson Waldron, Solicitors. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”) together with the documents tendered by the parties at the hearing. Mr Nersy, his son Sankho Nersy and Emmanuel Michael gave evidence in person and Ms Issa gave evidence by conference telephone from Lebanon.

Background

3.      The Applicant, Adam Bithio Nersy, was born in Baghdad, Iraq, on 10 March 1938 and is aged 65.   Mr Nersy’s first marriage was to Shoni Easho, who died on 31 March 1991 (T p122).   They had two children: Sargon Adam Bithio, born in 1962, and Sankho Adams, born in 1975.  Both are married and reside in Australia.  On 7 November 1991, Mr Nersy arrived in Australia and on 29 April 1994 he was granted Australian citizenship (T p93).  In 1994, Mr Nersy commenced receiving a disability support pension.  He suffers from arthritis, diabetes and polio in his left leg (T p108).  Since turning 65 on 10 March 2003, Mr Nersy has received an age pension.

4.      The Visa Applicant, Margueritte Youssef Issa, was born in Baghdad, Iraq, on 8 December 1951 and is aged 51.  On 8 February 1969, Ms Issa married Matti Azzo, a Lebanese citizen.  She became a Lebanese citizen in 1970.   They were divorced on 24 July 1987 (T p77).  Four children were born of this relationship: Sargon Azo, born on 19 November 1969, now aged 33, Daniel Azo, born on 1 May 1971, now aged 32, Fabian Azo, born on 11 September 1973, now aged 29, and Dory Azo, born on 12 January 1976, now aged 27 (T p 79). 

5.      Ms Issa came to Australia on 29 December 1999 on a visitor visa valid for three months (T p43).  On 10 March 2000, Mr Nersy and Ms Issa met in Sydney at the home of a mutual friend (T p146).  They commenced a relationship on 15 April 2000 (T p82).

6.      On 31 March 2000, Ms Issa lodged an application for a protection visa which was refused on 27 October 2000 (T p44). The decision was affirmed by the Refugee Review Tribunal (“RRT”) on 14 March 2001 (T p56) after Ms Issa had declined to attend the hearing.  On 16 May 2001, Juliette Vrakas, a registered migration agent, wrote to the Respondent seeking ministerial intervention (R3).  By letter dated 7 September 2001 (R4), Ms Vrakas was notified that the Respondent had declined to exercise his discretion to intervene in this case.

7.      On 4 February 2001, Mr Nersy and Ms Issa were married at St Zaia’s Cathedral, West Hoxton Park, Sydney (T p102).  They lived together from that date until 7 October 2001, when Ms Issa departed Australia and returned to Lebanon.  At that time, she had a bridging visa valid until 8 October 2001.

8.      On 23 October 2001, Ms Issa lodged an application for a subclass 309 spouse (permanent) visa at the Australian Embassy in Beirut (T p90).  On 19 March 2002, Ms Issa was interviewed by a Principal Migration Officer at the Embassy (T p166).   On 16 July 2002, Mr Nersy was interviewed by an officer at the Department’s Rockdale office (T p145).  On 18 September 2002, Ms Issa was interviewed a second time by a Principal Migration Officer in Beirut (T p171).

9.      On 18 November 2002, a delegate of the Respondent decided to refuse the grant of a subclass 309 spouse (permanent) visa to Ms Issa (T21 p164) on the basis that she did not pass the character test because of her past and present general conduct (T p8). 

10.     On 14 January 2003, Mr Nersy lodged an application for a review of this decision by the Tribunal, such application being out of time.  On 14 February 2003, with the consent of the Respondent, the Tribunal directed that the application be accepted out of time.

Applicable Legislation

11. 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;…

12.     Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a subclass 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.

13. 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”.

14. 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.

15. The issue for the Tribunal to determine in this case is, therefore, whether Ms Issa is not of good character having regard to her past and present general conduct so as to be precluded from the grant of a subclass 309 (permanent) visa. If the Tribunal decides she is not of good character, it must consider whether to exercise the residual discretion under s 501(1) to not to refuse the grant of a visa.

Evidence

Adam Nersy (the Applicant)

16.     Mr Nersy said he has been receiving the age pension since turning 65 on 10 March 2003.  On that day, he went to visit a relative and met Ms Issa who was staying there.  When he next met her on 15 April 2000, he asked her to marry him, and it is from this date that he considers their relationship commenced..  She refused his invitation saying that she wanted to return to Lebanon to live with her children.  Thereafter, they spoke on the telephone two or three times per week and met on approximately four or five occasions when she came to see him accompanied by her relatives.  He was unable to see her more often because he does not have a car and does not drive and the polio affecting his leg made it difficult for him to go and see her.   However, in their phone conversations, he asked her about her life and situation and, over the period that followed, he asked her to marry him on a number of other occasions. 

17.     Finally, on 16 January 2001 when she came to visit, he told her that this was the last time that he would propose marriage to her.  He needed to know her answer.  She said she would think about it and phone him later.  She phoned him later that day and agreed to marry him on condition that she could go and visit her children in Lebanon.  They were married at St Zaia Cathedral at Hoxton Park on 4 February 2001.  Between 30 and 40 people attended the wedding including Ms Issa’s son, Daniel, who is married and living in Australia, and two aunties (Ms Issa’s mother’s sisters) who live in Sydney and came with their children and grandchildren.

18.     Mr Nersy said his wife travelled to Australia on a visitor visa arriving on 29 December 1999 for the purpose of attending her son Daniel’s wedding.  After Mr Nersy and Ms Issa first met, she told him that she had applied to extend her stay in Australia and had instructed a lawyer to act on her behalf.  She did not tell him exactly on what basis she was seeking an extension of that stay.  At the time of their marriage, he thought that she had some sort of temporary visa following her application to extend her stay in Australia.  Mr Nersy said he is not aware of how his wife came to consult Re Quest International Pty Ltd with regard to obtaining a visa.  He thinks she paid them $2,000 plus a further $880 in respect of her application for ministerial intervention.

19.     Mr Nersy said he knew in early March 2001 that his wife had applied for a protection visa after her lawyer contacted her to tell her that she should prepare for another interview, at the RRT.  Ms Issa told Mr Nersy what had happened and that she did not want to attend because she did not want to continue lying.  The lawyer had told her to lie and told her not to mention her Lebanese citizenship, instead contending that she was an Iraqi.  Mr Nersy said he telephoned the lawyer and asked him why he had asked Ms Issa to lie.  The lawyer said that he could get her a protection visa as an Iraqi and that Mr Nersy should not interfere.  The lawyer said he knew what he was doing.  After the RRT refused Ms Issa’s application, Ms Issa went to see the migration agent associated with the lawyer to ask her to write a letter to the Minister asking him to permit Ms Issa to remain in Australia in order to care for Mr Nersy.  The agent asked that Mr Nersy prepare a statement, attaching a copy of their marriage certificate and medical reports from the hospital and treating doctors.

20.     Mr Nersy said the name of the lawyer whom they consulted was Phillip Basha of Re Quest International Pty Ltd at Merrylands.  Mr Basha told Mr Nersy’s wife that on applying for ministerial intervention, he would be able to obtain a further temporary visa for Ms Issa.  Mr Nersy said after the Minister refused to intervene, his wife left Australia on 7 October 2001, one day before the expiry of her visa.

21.     Mr Nersy said his wife’s second son Sargon arrived in Australia on 16 January 2003 having married an Australian citizen.  Thus, two of Ms Issa’s sons are now living in Australia with their wives, both in Sydney - one in Fairfield and one in Canterbury.  Ms Issa is currently living with her daughter Fabian and her husband and grand-daughter on a farm in the mountains in Lebanon where she has been since returning to Lebanon.  Ms Issa’s youngest son, Dory Azo, lives with his father.

22.     Mr Nersy said he has not seen his wife since she left Australia on 7 October 2001.  He has been unable to visit her because he is a pensioner and cannot afford to do so.  They maintain contact by telephone – sometimes she phones him and sometimes he phones her.  They speak once or twice a week and sometimes three times a week if necessary.  Ms Issa’s son-in-law is supporting her although Mr Nersy sends her $200 every four or five months if he can afford to do so.

23.     Mr Nersy said after he and Ms Issa were married, she moved in with him.  They could not afford a honeymoon.  He applied for special benefit for her but this was not granted.  They lived together for about eight months before she had to return to Lebanon.  Mr Nersy said in the period before their marriage and in the eight months before she left Australia, he got to know his wife well and loves and respects her and knows her to be of good character.  She said she liked being in Australia because she felt comfortable here.    She liked Australian people who show respect for human beings.  Mr Nersy said their marriage is genuine and according to the culture and tradition of the church.  This dictated that before marriage they could not be alone together.  Mr Nersy produced photographs of he and his wife and family at the wedding and afterwards.  He said his wife has nowhere else in the world to go.  At the moment, she is living as a guest at her daughter’s house.  Ms Issa’s mother and sister and brother are living in Chicago and her father is deceased.

24.     Mr Nersy said his health is currently good.  He has been living alone since 17 May 2002 when his son married and left to live with his wife.  Mr Nersy does everything at home and manages all the household tasks except for shopping which his son does for him.

25.     Mr Nersy produced a letter from Julia Irwin, his federal MP, dated 27 August 2003 (A4) in support of his application.  He said Ms Irwin had been in contact with the Australian Embassy in Beirut concerning the processing of his wife’s spouse visa application.  Mr Nersy said that if his wife is not granted a visa, he would not be able to afford to go to Lebanon.  He is dependent on his age pension of $340 per fortnight as his sole source of income.  He said, moreover, that it is not safe in Lebanon.

26.     Mr Nersy was shown the statement attached to his wife’s protection visa application (R2) and asked to confirm that the signature on the statement is hers.  He confirmed this but said that his wife cannot speak or read or write in English and that her lawyer had told Ms Issa to memorise the story because she would be asked about this at interview.

Margueritte Youssef Issa (the Visa Applicant)

27.     Ms Issa said her first husband was Lebanese and she moved to Lebanon from Iraq after she was married.  They had four children, two of whom are now living in Australia and two in Lebanon.  She is currently living with her daughter, her daughter’s husband and child, and her daughter and son-in-law are supporting her financially.  Prior to coming to Australia, Ms Issa lived with her two older sons.  Her youngest son, Dory, who is now 26, lives with her ex-husband.   He comes to see her every weekend staying overnight on Saturday and Sunday.  She never sees her ex-husband. 

28.     Ms Issa said she first came to Australia in order to attend her son Daniel’s wedding which took place on 15 January 2000.  He and his wife now have a daughter.  Her eldest son, Sargon, came to Australia about seven months ago because his wife is Australian.  They married in Lebanon before travelling to Australia.  Ms Issa said she attended Sargon’s wedding in Lebanon.  She knows his wife’s family from Iraq.  Sargon’s wife is about 32 years old.  Ms Issa said she did not know when her now daughter-in-law moved to Australia but she has lived there for a long time.  Ms Issa said she met her in Australia and her now daughter-in-law took something back to Ms Issa’s daughter for her and stayed with Ms Issa’s daughter for about a week.  This is how she met Ms Issa’s son Sargon.  All of this happened while Ms Issa was still in Australia.  After she and Sargon met, they kept in touch and after Ms Issa returned to Lebanon, Sargon asked her to marry him.

29.     Ms Issa said she first met Mr Nersy on 10 March 2000 at his cousin’s house where Ms Issa was staying.  It was Mr Nersy’s birthday.  After the meeting, they discovered that Mr Nersy had known her father in Iraq,  Ms Issa and Mr Nersy spoke a lot on the phone and Mr Nersy’s cousin took her to visit him on a number of occasions.  Ms Issa said Mr Nersy’s cousin is a relative of her brother.  Ms Issa said her relationship with Mr Nersy commenced on 15 April 2000.  She remembers this date in particular because this is when they first started to talk together at length.  At first in giving evidence, Ms Issa said that Mr Nersy first asked her to marry him at their first meeting and that she was surprised by this and took it as a joke considering her age and maturity.  However, in cross-examination, Ms Issa stated that she could not remember exactly on which occasion he first asked her to marry him but it was not on the occasion of their first meeting on 10 March 2000.  Mr Nersy asked her to marry him a number of times and she was not very good at remembering dates.  However, when he kept asking her, pointing out that they both lived alone, she started to think about the proposition.  Then, about a week or two before the wedding, she finally accepted his proposal.  Even then, she took her time to respond to Mr Nersy’s proposal.  She continued to stay at her cousin’s place until she and Mr Nersy got married when she moved in with him.

30.     Ms Issa said she applied for a visitor visa in order to attend her son Daniel’s wedding - she cannot remember details of the application.  She did not have any intention of staying permanently in Australia but, when she arrived here, she liked Australia and the respect shown for the individual.  When Ms Issa said she would like to stay on in Australia, her neighbours suggested that she consult Phillip Basha and her relatives took her to his office.  Mr Basha speaks Arabic.  She told him that she would like to stay in Australia and he told her that he would help her but that she would have to rely on her Iraqi background to do this and deny her Lebanese citizenship.  Ms Issa said he composed a statement for her, which was all lies.  She had to say that she was Iraqi and that all her children were born in Iraq and not in Lebanon and that her husband was Iraqi.  He told her she had to claim that she and her children had been assaulted and that they fled Iraq.  Ms Issa said she never told Mr Basha to say that she feared persecution from the Syrian army.  He told her that if she followed his instructions, he would obtain a visa for her.  When she questioned the false claims, he said he was doing his job and she should rely on him.  Ms Issa said she does not really understand what a protection visa is, except that it involves a person claiming to be a refugee.

31.     Ms Issa said on her second visit to Mr Basha’s office, the application form had been completed and an interpreter translated it into Arabic for her.  Everything in the statement about her husband and children was false.  Nevertheless, Mr Basha reassured her that this was a legal way to apply for a visa to stay in Australia.  He assured her that he knew what he was doing and that this was the only way to get her a visa.  She now knows this was bad advice and apologises for having followed it.

32.     As a result of the application, Ms Issa was granted a temporary visa.  Following the refusal of the protection visa application, Mr Basha lodged an appeal with the RRT.  In early March 2001, Ms Issa received a letter from Mr Basha’s office about the need to attend an interview at the RRT.  She did not want to attend such an interview and tell more lies.  She therefore told her husband about this and he phoned the solicitor and they went to see him.  The solicitor told her husband that it was none of his business and that he knew what he was doing.  Ms Issa said she was very scared about telling the RRT that she had lied in case she was arrested and sent back to Lebanon.  She was sick on the day scheduled for the hearing and did not attend.

33.     Ms Issa acknowledged that she had attended interviews with departmental officers about her protection visa application on 13 July 2000 and 13 September 2000.  On each occasion, she was accompanied by a woman from Mr Basha’s office.  Ms Issa acknowledged that she had lied at both interviews and said she was very sorry for this.  The solicitor told her to stick to the same story as set out in her protection visa application statement.

34.     Ms Issa said that after the RRT refused her application, she went back to see the solicitor again because he had got her into this trouble.  She had paid him about $2000 and he knew about the case.  She still wanted to stay in Australia legally.  The solicitor asked for a statement from her husband together with a copy of their marriage certificate and his medical reports to support an application to the Minister to permit her to stay in Australia.  This application was refused and, on 7 October 2001, Ms Issa having been granted temporary visas in the meanwhile, she left the country.  Ms Issa said she did not tell her husband before they were married about her applying for a protection visa.  She did not know what was going on and so did not tell him.  It was only in early March 2001, when the solicitor asked that she attend an interview with the RRT, that she told her husband what had happened.  Ms Issa said she loves her husband even though they are old.  They are frequently in contact by telephone or, if someone comes to Lebanon from Australia, her husband will send something for her with that person.

Sankho Nersy

35.     Sankho Nersy is Mr Nersy’s younger son.  He said that according to their culture and religion, marriage is for life.  He said that he continued to live in the same household with his father and stepmother for the eight months after they were married.  The marriage is a genuine one and he was pleased to see his father happy again, his mother having died in 1991 in Greece.  He said Ms Issa is a caring person and was a good wife to his father.

36.     Mr Sankho Nersy said he went to see Ms Issa’s lawyer with her on a couple of occasions and the lawyer told him not to interfere and told him to leave the office.  Mr Sankho Nersy subsequently spoke to their federal MP, Ms Julia Irwin, about lodging a formal complaint about the lawyer’s conduct.  They did not do so because it would become a matter of the lawyer’s word against his father’s.  Mr Sankho Nersy said that the lawyer he saw was Phillip Basha but there was also a woman called Juliette Vrakas in his office.

37.     Mr Sankho Nersy said he married on 17 May 2002 and has not lived with his father since that time.  Until then, he was drawing a carer’s allowance in respect of his father and not working.  He only started working after his marriage and is currently working as a car park attendant earning about $500 per week net.  His wife works part-time as a primary school teacher earning about $400 per week net.  They are saving to buy a house and could not afford to help his father financially.  Mr Sankho Nersy said he has never been to Lebanon.

Emmanuel Michael

38.     Mr Michael said he is president of the Assyrian Federation of Australia.  He learned of Mr Nersy’s case after the Minister refused Ms Issa’s application for a spouse visa.  When Mr Michael saw Allan Davis’ letter of refusal, he wrote to the Principal Migration Officer at the Australian Embassy in Beirut, Ms Alison Laird.  Mr Michael also wrote to the Tribunal explaining errors in Mr Davis’ letter.

39.     Mr Michael said he believes the marriage between Mr Nersy and Ms Issa is a genuine one.  According to the rights of the Holy Apostolic Catholic Church of the East, once a marriage has been officiated, there is no power to break this holy bond.  Divorce is only permitted in the case of adultery which must be witnessed by two witnesses.

40.     Mr Michael said he has known Mr Nersy for over 40 years since they lived in Iraq.  Mr Nersy and Ms Issa lived together as husband and wife at Mr Nersy’s house after their marriage.  In Mr Michael’s opinion, because Ms Issa confessed to having lied, she should be recognised as being of good character.  The solicitor and migration agent should be punished for instructing her to lie in her protection visa application.

Submissions

Respondent

41.     Ms Hanstein, for the Respondent, submitted that Ms Issa fails the character test because of the false and misleading statements contained in her protection visa application and because she continued to make those statements up until the time of the processing of her review application by the RRT.  Ms Hanstein contended that the false and misleading statements were extensive, concerning members of her family, particular incidents and allegations of persecution, and should be considered very serious.  Ms Issa was fully aware of the falsity of the statements.  She attended two interviews with a departmental officer in relation to her protection visa application and provided answers to questions consistent with the false statement accompanying the protection visa application. 

42.     Ms Hanstein noted the Applicant’s evidence that the letter written to the Department on 22 December 2000 (T p64) was composed by Ms Issa’s lawyer and that she did not attend the RRT hearing because she could not continue with the lies.  Ms Hanstein said Ms Issa’s behaviour should not be excused by reason of her having relied on a lawyer’s advice.  She was at all times aware of the lies, perpetuated them, and must take responsibility for them.  Her conduct in going back to see the same solicitor indicates that she was still acting on his advice.

43.     Ms Hanstein drew attention to some inconsistencies in Ms Issa’s evidence as to when Mr Nersy first made a proposal of marriage to her and as to when she accepted his proposal.  Initially, Ms Issa said he had first proposed to her when they met on 10 March 2000, but she later said she could not remember when he first proposed.  She was also vague as to when she finally accepted his proposal.

44. With respect to the exercise of the Minister’s discretion under s 501(1) of the Act, Ms Hanstein submitted that making false and misleading statements constitutes a very serious offence and Ms Issa’s conduct indicates that she may change her story if she believes this to be in her interest. The refusal of a visa in such circumstances would deter others from similar conduct and the Australian community would expect that a visa would be refused in such a case.

45. With regard to other considerations, Ms Hanstein acknowledged that Mr Nersy did not have knowledge of his wife’s protection visa application prior to their marriage and that the refusal of a visa to her will cause him emotional hardship. However, Mr Nersy manages to care for himself and has done so since his son married on 17 May 2002. Ms Issa is being supported by her daughter and son-in-law with whom she lives in Lebanon.. On balance, Ms Hanstein submitted that the primary considerations outweigh the other considerations and the discretion in s 501(1) should not be exercised in Ms Issa’s favour.

Applicant

46.     Mr Nersy said although his wife did not compose the false and misleading statements in relation to her protection visa application, she has confessed to having made a big mistake.  At all times, because she cannot speak or read or write English, she relied on her lawyer.  Mr Nersy submitted that having confessed, she should be pardoned.

47.     Mr Nersy said his wife felt comfortable in Australia and that human beings were respected here.  He referred to his own background as a politician in Iraq and as the author of political poems and articles in the Arabic newspapers in Australia.  He said he wants his wife’s companionship and for them to live together as husband and wife.  As a result of his having got to know her before they were married and during the period of eight months when they lived together, he is certain she is of good character and asked that she be granted a visa and be permitted to live with him in Australia.

Application of the Law and Findings

48. As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c)(ii), Ms Issa passes the “character test” having regard to her past and present general conduct. The application of the “character test” 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 …

49.     In Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, the Tribunal said, at paragraph 37:

The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431).  However, this does not require the Applicant to meet the highest standards of integrity.  The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Godly 1999 FCA 1277).

50. 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, Ms Issa, does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) not to refuse 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.

51.     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 are paragraphs 1.9(a), 1..9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has been involved in activities such as breaches of immigration law (paragraph 1.9(a)), or 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 and misleading statement (paragraph 1.9(b)), or has ever made a false and misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9(c)).

52.     Before making a determination on the application of the character test, it is appropriate that the Tribunal set out its findings.   The Tribunal finds that Ms Issa travelled to Australia on a visitor visa arriving on 29 December 1999.  The purpose of her visit was to attend the marriage of her son, Daniel, which took place in Sydney on 15 January 2000.  The Tribunal accepts that it was not initially her intention to remain in Australia permanently.  However, she found she liked Australia and, on the advice of neighbours of the relatives with whom she was staying, she consulted a lawyer, Phillip Basha of Re Quest International Pty Ltd, Migration Agents of Merrylands.  Mr Basha advised her that she should lodge a protection visa application including false statements about her citizenship, family and alleged persecution in Iraq as a basis for the application.  The Tribunal accepts Ms Issa’s evidence that she did not understand that the application was for a protection visa and sought to establish her status as a refugee.

53.     The Tribunal also accepts Ms Issa’s evidence that she questioned the making of false statements in the application but was reassured by Mr Basha that the application was legal and that it was necessary to make these false statements in order to obtain a visa.  He told her to memorise the false statements made in the application because she would be questioned about these by departmental officers.  Ms Issa acknowledges that in interviews with departmental officers on 13 July 2000 and 13 September 2000, she lied when asked about these matters.  She apologises for her conduct.  Ms Issa’s protection visa application was refused and she appealed to the RRT.  When the matter came on for hearing, she decided not to attend.  The Tribunal accepts her evidence, which was corroborated by Mr Nersy, that she was no longer prepared to lie about the claims set out in her protection visa application.  After the RRT affirmed the refusal of her protection visa application, Juliette Vrakas, a registered migration agent with Re Quest International Pty Ltd, wrote to the Respondent seeking ministerial intervention (R3).  This did not seek to rely on the false statements in the protection visa application but, according to Mr Nersy, the application for ministerial intervention was based on his need for a person to care for him.  The application was refused on 7 September 2001 (R4).

54.     The Tribunal finds that Mr Nersy was not aware of his wife’s protection visa application until early March 2001, after their marriage.  She had told him previously that she had instructed a solicitor to seek a visa to enable her to stay in Australia.  He assumed that, in the meanwhile, she had a temporary visa, which was, indeed, the case.

55.     Having heard evidence from both Mr Nersy and Ms Issa, the Tribunal has no doubt that the marriage is a genuine one.  Mr Nersy is a highly intelligent, well-read man who freely admits to his desire for companionship.  It is now more than 12 years since his first wife died and, by reason of his medical condition, he has some difficulty coping.  Nevertheless, he manages on his own, with some help from his younger son who does his shopping.  The Tribunal finds that Mr Nersy and Ms Issa have a loving relationship and miss each other’s companionship.

56.     Mr Nersy’s two sons are married and live in Australia.  This has been Mr Nersy’s home since 1991.  He has been an Australian citizen since 29 April 1994.  He is dependent on age pension, cannot afford to travel and would find travelling difficult because of his medical condition.  He has not seen his wife since she left Australia on 7 October 2001.  They maintain contact by telephone.

57.     Ms Issa has four adult children.  Two of her sons are married and live in Australia.  She also has other relatives here.  She is currently living with and being financially supported by her daughter and son-in-law in Lebanon.  She has no other financial support and no home of her own.  Her youngest son also lives in Lebanon and currently visits her on a weekly basis.

58.     The Tribunal notes that when Ms Issa was interviewed by Allan Davis, the Principal Migration Officer at the Australian Embassy in Beirut, she acknowledged the false claims in her protection visa when these claims were put to her by Mr Davis (R1).

59.     Having found that Ms Issa made false and misleading statements in connection with her protection visa application and lied in departmental interviews on two occasions prior to her application being determined, the Tribunal considers that Ms Issa has committed serious breaches of Australia’s immigration law and must accept responsibility notwithstanding that she relied upon the advice of a solicitor and migration agent.  In the Tribunal’s view, her conduct in relation to the protection visa application is sufficient to justify a finding that she does not pass the character test by reason of her past general conduct.

60. Having decided that Ms Issa does not pass the character test, the Tribunal must then consider the exercise of the residual discretion under s 501(1) to decide whether not to refuse the grant of a visa to Ms Issa. In exercising this discretion, the Tribunal had regard to Part 2 of Direction No 21. 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.

61.     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.

62.     With regard to the protection of the Australian community, paragraph 2.4 states:

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…

63.     Paragraph 2.5 identifies the factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen which include:

(a)       the seriousness and nature of the conduct;

(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and

(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).

64.     Examples of offences considered by the Government to be serious include serious crimes against the Act, which in turn include “making a false or misleading statement in connection with entry or stay in Australia”..  Paragraph 2.8 requires decision-makers, when exercising the discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors. 

65.     With regard to paragraph 2.5(b), likelihood that conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, “aims to deter other people from committing the same or a similar offence”.

66.     With regard to the first primary consideration, Ms Issa has been guilty of serious misconduct in relation to her protection visa application.  The Tribunal notes that she decided not to appear at the RRT hearing because she did not want to repeat the lies she had told previously although, apparently, the RRT was not informed of these falsehoods prior to making their decision.  Nevertheless, the Tribunal recognises that, at this time, the conduct of her application was still in the control of her solicitor/migration agent, who would have had a vested interest in not notifying the RRT of the false statements.  Ms Issa subsequently admitted to the false statements in her interview with Mr Davis following her spouse visa application and she apologised to the Tribunal for her misconduct. 

67.     Having heard her evidence and that of Mr Nersy, the Tribunal accepts that the likelihood of her repeating such misconduct is minimal.  The Tribunal recognises that the refusal of a visa in such circumstances will deter others who may be contemplating similar misconduct.  Nevertheless, this is not a conclusive factor in itself and other considerations must be taken into account.  A relevant mitigating factor in Ms Issa’s case is that she does not speak English and is not literate in English.  She relied on the advice of a solicitor and migration agent who assured her that a legal visa could be obtained through such means.  Whilst such reliance cannot excuse her responsibility for the false application, it is a relevant factor that the Tribunal may take into consideration.

68.     With regard to the second primary consideration, the expectations of the Australian community, in the Tribunal’s view the Australian community would take a compassionate view of Ms Issa’s and Mr Nersy’s circumstances and would not refuse the grant of a visa.

69.     The third of the primary considerations, the Best Interests of the Child, is not relevant in this case.

70.     With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”.  These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; 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-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.

71.     The Tribunal has found that the relationship between Mr Nersy and Ms Issa is a genuine marital relationship and accepts that this is based on love and respect and the mutual need for companionship.  Mr Nersy was not aware of his wife’s protection visa application at the time of their marriage, believing that she was in Australia on the basis of a temporary visa pending a decision on her application to stay for an extended period.  After Mr Nersy became aware of the false statements made by his wife in the protection visa application, he took this matter up with her solicitor and she made no further false statements.  The Tribunal notes from the file evidence that Ms Issa appears to have been at all times in possession of a valid visa permitting her to be in Australia and left on 7 October 2001 prior to the expiry of her final bridging visa.

72.     Mr Nersy has been in Australia since 1991, is an Australian citizen and, both his immediate family – his two sons and their families, and other family members live in Australia.  Mr Nersy has suffered significant medical problems in recent years, would have difficulty travelling to Lebanon and is financially dependent upon his age pension.  In Ms Issa’s case, two of her four children are married and live in Australia while two reside in Lebanon.  Ms Issa is currently living with her daughter and son-in-law in Lebanon and being supported by them, has no permanent home in Lebanon and no independent means of financial support.

73. Weighing up the primary and other considerations, in the Tribunal’s view Ms Issa is no threat to the Australian community and indeed the Australian community would look compassionately upon her and Mr Nersy’s circumstances and not refuse the grant of a visa. Both Ms Issa and Mr Nersy are suffering hardship by reason of their separation and, in the Tribunal’s view, they should be permitted to live together as husband and wife providing one another with mutual support. Thus, the discretion in s 501(1) of the Act should be exercised in favour of Ms Issa so as not to refuse the grant of a visa.

I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President

Signed:         .......................................................................................
  Associate

Date/s of Hearing  1 September 2003
Date of Decision  17 September 2003
Representative for the Applicant               Self-represented
Representative for the Respondent          Ms S Hanstein, Solicitor