Rahme and Minister for Immigration and Multicultural Affairs - [2001] AATA 824

DECISION AND REASONS FOR DECISION [2001] AATA 824

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/285

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Chafic Rahme
  Applicant
           And    Minister for Immigration & Multicultural Affairs
  Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date28 September 2001
PlaceSydney

Decision      The Tribunal sets the decision under review and remits the matter to the Respondent for reconsideration with a direction that Ms Maguy Succar Rahme passes the "character test" under s 501(1) of the Migration Act 1958.
  ..............................................
  Deputy President
CATCHWORDS
IMMIGRATION – Spouse visa – sponsor - character test – past and present general conduct – where Visa Applicant gave false and misleading statement in application form for grant of visa – where Visa Applicant "genuinely frightened" at time of making application – expectations of Australian community

Validity of Ministerial Direction No. 17 – where Direction not binding on the decision-maker - where Part 2 of Direction considered government policy and a guide to exercise of discretion

WORDS AND PHRASES – "enduring moral qualities"

Acts Interpretation Act 1901: ss 46(1)(b)
Migration Act 1958: ss 81(1)(b), 499(1), 499(2), 499(2A), 501(1), 501(6)(c)(i)(ii)
Migration Regulations 1994: Schedule 2, clause 309.225; Schedule 4, clause 4001
Ministerial Direction No. 17 – Visa Refusal and Cancellation under s 501
Ministerial Direction No. 21 – Visa Refusal and Cancellation under s 501

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Iriving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Jahnke v Minister for Immigration and Multicultural Affairs [2001] FCA 897
Javillonar v Minister for Immigration and Multicultural Affairs [2001] FCA 854
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Leyden v Minister for Immigration and Multicultural Affairs [2000] AATA 551
Re Policarpio v Minister for Immigration and Mutlicultural Affairs [2001] AATA 658
Re Soufan v Minister for Immigration and Multicultural Affairs [2001] AATA 650
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Ruhl v Minister for Immigration and Multicultural Affairs [2001] FCA 648
Succar v Minister for Immigration and Multicultural Affairs [1998] FCA 1222
Turini v Minister for Immigration and Ethnic Affairs [2001] FCA 822

REASONS FOR DECISION

Mr R P Handley

This is an application by Chafic Rahme ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Respondent") made on 2 February 2001 to refuse the grant of a sub-class 309 – Spouse (Provisional) Visa to the Applicant's spouse, Ms Maguy Succar Rahme ("the Visa Applicant").
At the hearing, the Applicant was represented by Nicholas Poynder, of Counsel, and the Respondent by Paul Hardman, Solicitor of Clayton Utz, Lawyers. 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. Oral evidence was given in person by the Applicant. The Visa Applicant and Allan Davis gave oral evidence by telephone.
Background
Ms Rahme was born on 1 September 1971 in Becharre, a town in northern Lebanon. In February 1996, Ms Rahme obtained a 3 months visitor's visa and travelled to Australia to stay with her sister. On 23 May 1996, she completed an application for a protection visa, which was lodged with the Department of Immigration and Multicultural Affairs ("the Department") on 24 May 1996. On that date, she was granted a bridging visa entitling her to remain in Australia until 28 days after notification of the decision on her application. On 3 May 1997, a delegate of the Respondent refused Ms Rahme's application for a protection visa. On 29 May 1997, Ms Rahme lodged an application for a review of this decision with the Refugee Review Tribunal ("RRT"). The RRT conducted a hearing on 5 February 1998 at which Ms Rahme gave oral evidence and, on 12 March 1998, the RRT decided to affirm the decision not to grant Ms Rahme a protection visa. On 6 April 1998, Ms Rahme lodged an application for an order of review of the RRT decision with the Federal Court, and on 25 July 1998, signed a consent to join a High Court class action in Herijanto v Refugee Review Tribunal.
On 20 March 1996, Ms Rahme met the Applicant when he came to visit her sister. Ms Rahme's relationship with the Applicant developed thereafter and, on 7 February 1999, they were married in a church at Punchbowl.
On 3 September 2000, after receiving advice from an officer of the Department Ms Rahme departed Australia and returned to Lebanon. On 11 September 2000, she lodged an application for a Spouse (Provisional) Visa Sub-class 309 at the Australian Embassy in Beirut. On 31 January 2001, Ms Rahme was interviewed by the Principal Migration Officer at the Embassy and, on 2 February 2001, the officer, in his capacity as the delegate of the Respondent, refused Ms Rahme's application on the ground that she did not pass the "character test".
On 2 March 2001, the Applicant lodged an application for a review by this Tribunal.
RELEVANT LAW AND POLICY
Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the "character test." The character test is set out in s 501(6) which provides that a person does not pass the character test if one of a number of grounds are met. The relevant ground in the current matter is paragraph (c) as follows:
Having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct;
the person is not of good character;…

Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a Sub-class 309 visa. Clause 309.225 requires that, at the time of the decision, the Visa Applicant satisfied public interest criteria set out in Schedule 4 of the Regulations, including, relevantly, clause 4001 which provides:
either
(a) the applicant satisfies the Minister that the applicant passes the character test; or
(b) the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.
Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v MIMA (1999) 90 FCR 583. However, s499(2) states that s499(1) "does not empower the Minister to give directions that would be inconsistent with this Act or the regulations".
On 16 June 1999, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No. 17, 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 the application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
The issue for the Tribunal to determine in this case is, therefore, whether Ms Rahme is not of good character having regard to her past and present criminal conduct and her past and present general conduct, so as to be precluded from the grant of a Sub-class 309 visa. If the Tribunal decides she is not of good character, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, she should be granted a visa.
EVIDENCE
In her sworn statement, Ms Rahme said she was born in Becharre, a town in northern Lebanon, which is well known for having supported the Lebanese Forces, a Christian militia group which was against the Government. The Lebanese Forces were ill thought of following the civil war between them and the Lebanese army in 1989/1990. Becharre was also the home of Doctor Samir Geager, who was formerly the leader of the Lebanese Forces. As a result of these associations, any person coming from Becharre is regarded as a supporter of the Lebanese Forces.
From December 1990 until August 1993, Ms Rahme undertook a degree in English and Computer Studies at the American Language Centre in Jbail, about 40 kilometres north of Beirut. During this time, she lived with her aunt in Jbail. Ms Rahme said she can speak and write in Arabic, English and French.
After finishing her degree in August 1993, Ms Rahme returned to live with her parents in the village of Kusbah. In January 1994, she started work as a secretary for a company which sold cold meats. This involved using a computer. She travelled to work by car. This involved passing through security checkpoints manned by Syrian soldiers who would often stop her and ask to see her identification papers. When they saw she was born in Becharre, this would result in them harassing her by asking a lot of questions about where she was coming from and where she was going to, what sort of work she did and who she worked for. They would make her open the boot of her car and would search this and the interior, asking whether she had any weapons. When they found out that she worked with computers, they would accuse her of using her computer to carry information for the Lebanese Forces. Sometimes they would accuse her of being a member of the Lebanese Forces. This harassment continued through 1994 and 1995.
In 1995, Syrian soldiers took her uncle and detained him for 3 days. He was accused of supporting the Lebanese Forces and beaten up by the soldiers. He was only released when her father sought help from Elias Ayoub, who had good connections with the Syrians. Also, about June or July 1995, Syrian soldiers came to her house, looking for her, but she was not there at the time. Her father told her of the visit afterwards and that the soldiers had asked whether she was still in the country. Ms Rahme did not know whether the Syrian soldiers actually entered the house or not. At the checkpoint, there was usually one Syrian soldier and one other person who she thought to be from the Syrian intelligence. It appeared to her that the intelligence officer would give orders to the soldiers.
After the Syrian soldiers came to her house, she became more worried when she was stopped and questioned by the Syrians at the checkpoints. She thought the Syrians were specifically looking for her which made her more scared. However, she could not avoid passing through the checkpoints because she had to go to work; otherwise she would have lost her job.
Ms Rahme said the harassment made her tired and depressed and when, in August 1995, her sister and her sister's daughter visited Lebanon for their brother's wedding, Ms Rahme asked whether her sister could assist her to visit Australia. Ms Rahme said that she applied for a passport at the local regional office of the Lebanese Government. This was not controlled by the Syrians who also had no control over who was issued with passports. Ms Rahme did not anticipate any difficulty in obtaining a passport. She did not require a security clearance, only a statement that she did not have a criminal record.
Her sister later sent her an invitation to visit Sydney and attend a wedding. On 21 February 1996, Ms Rahme applied to the Australian Embassy for a visa and was issued with a visitor visa stipulating three conditions: 8101-no work; 8201-maximum 3 months non-formal study; and 8503-no further stay. Mr Allan Davis, the Principal Migration Officer (Compliance), in Beirut, told the Tribunal that an 8503 condition comprises an undertaking by the person to abide by the terms of their visa and not extend their stay in Australia. The undertaking is read out to the person in English and is also printed on the form in Arabic. An 8503 condition is imposed because of the high overstay rate of Lebanese citizens visiting Australia, where there is some doubt in the mind of the decision-maker as to the genuine reason for the visit.
Ms Rahme said when she collected her passport with the visa stamped in it from the Australian Embassy, she was told she could stay in Australia for 3 months and no longer. Nobody told her at the Embassy that she could apply for a protection visa in Australia.
Ms Rahme left Lebanon on 23 February 1996. She was worried about passing through the airport at Beirut, but her father told her that he had spoken with Mr Ayoub, who had in turn spoken with someone to make sure she did not have any problems at the airport. Her brother took her to the airport, she did not encounter any difficulties and believed that this was because of the assistance of Mr Ayoub.
Ms Rahme arrived in Australia on 24 February 1996. She felt safer and more relaxed being here, but intended to return to Lebanon because she thought the situation there would have improved within three months. At that stage, it did not occur to her to seek an extension of her tourist visa. However, shortly before she was due to return to Lebanon, she heard on the news that people in Lebanon had been arrested and jailed and she was afraid this might happen to her. At the time she completed the application for a protection visa, she was scared and very upset. She said that when completing Question 37 of the Protection Visa Application Form at the Department's Kogarah office, she answered "if I go back to Lebanon I will be harassed, and questioned and possibly put in jail and possible death". She was afraid something might happen to her like that which had happened to her uncle, and so she was "scared to death". She did not actually think that she would face possible death. She acknowledged the difference between this and her answer to Question 37. She also acknowledged that her description of the Syrians visiting her home in north Lebanon on "many occasions" was an exaggeration, as she had explained to the Refugee Review Tribunal. All this was because she was very nervous and upset when she completed the application form. She said completing the protection visa application probably took three to four hours.
Having met her husband at his sister's house on 23 March 1996, he phoned her a few days later and invited her out. Their relationship progressed from there. Mr Rahme said that he could not remember when his wife first told him about the Syrians having visited her house. He said these sorts of incidents were common in Lebanon and were, therefore, a common topic of discussion among the Lebanese community in Australia. However, it was probably a few months after meeting her that she told him of this. He was already aware of her uncle being detained before he met her, because he was friends with her other uncles who lived in Australia. Ms Rahme told him that she was applying for a protection visa because she was afraid of being hassled by the Syrians following their having visited her house. Mr Rahme did not recall her saying on how many occasions the Syrians had visited her house, but did recall her telling him that a friend had assisted her to go to the airport when she was leaving Beirut to fly to Australia. He said he assumed someone had helped her to get to the airport. He did not ask any more questions about this because the sort of problems she experienced happened to everyone in Lebanon.
Mr Rahme said that at the time he and Ms Rahme were married on 7 February 1999, he was aware that her immigration status was uncertain. They tried to lodge an application for a spouse visa with the Department, but the Department refused to accept the application. They were invited to an interview at the Department's Rockdale office where they were advised that it would be better if Ms Rahme left the country and reapplied for a spouse visa from overseas. Ms Rahme chose to return to Lebanon because the situation had, by this time, stabilised and the number of Syrian checkpoints was being reduced. Ms Rahme, in her statement, noted, in particular, that the checkpoint near her parent's house was no longer there. Also, Ms Rahme's sister Mirva had to return to Lebanon for a christening and they thought that if Ms Rahme only had to wait three months or so before getting her visa, she would have the support of her sister while she was there. Ms Rahme therefore returned to Lebanon on 3 September 2000.
Allan Davis, the Principal Migration Officer (Compliance) in Beirut gave evidence about the interview he had conducted with Ms Rahme on 31 January 2001 in the Australian Embassy in Beirut. He referred to the summary of the interview prepared by him afterwards and signed on 2 February 2001 (S11). He said the summary constituted a record of the matters of importance discussed at the interview, which took about an hour. Mr Davis recalled that Ms Rahme told him that when she applied for a protection visa in Australia, she believed she was a refugee and she described how she had been stopped on numerous occasions at checkpoints and been questioned by Syrian soldiers. He agreed that her desire to submit a refugee claim while she was in Australia was based on her belief that she was indeed a refugee, and that to make an application for a protection visa was appropriate for a person believing him/herself to be a refugee. Mr Davis said in the statement of reasons for his decision to refuse her application for a spouse visa (T2, p 9), that Ms Rahme admitted to him that she elected to submit a refugee claim because this was "the best way" to obtain permission to remain in Australia. However, Ms Rahme denied having said that in her statement (A2). She said she had stayed in Australia because she was afraid of returning to Lebanon because of the Syrian soldiers.
In her statement, Ms Rahme said how difficult it was being separated from her husband and how stressed they both are. They want to have a family. The gynaecological problems which she was experiencing when she was in Australia have now been resolved and she wants to have children. Mr Rahme said in his statement (A1) that he cannot feel settled until his wife returns to Australia. He is worried that they are not sharing their lives and that he is forced to stay apart from the person with whom he wants to be and with whom he wants to have children.
The Applicant tendered a number of character references from people who Mr Rahme came to know in Australia (A3), and country information, which was available to the Refugee Review Tribunal at the time of their hearing, as to the situation in Lebanon in the period 1993 to 1996 (A4).
FINDINGS
The only alleged wrong-doing by Ms Rahme is in relation to her application for a protection visa lodged on 24 May 1996 (T7, p 40). In answer to Question 37 in this document, "What do you fear may happen to you if you go back to that country?" (T8, p 57), Ms Rahme said that she had been targeted by the Syrian intelligence and was harassed. They visited her home on "many occasions", so that she was terrified and physically and mentally disturbed. She also said she was "assisted to get to the airport and I considered myself lucky to be here now", and that "if I go back to Lebanon, I will be harassed and questioned and possibly put in jail and possible death". However, at the hearing before the RRT on 5 March 1998 (S7, p 198), Ms Rahme said that the Syrians had only visited her home once. She did, however, say that her father told her that they searched the house. In evidence to the Tribunal, she said this was not correct: whilst the Syrian soldiers came to the house looking for her, she did not think that they searched the house. The Tribunal notes that Ms Rahme's description of the stopping of Lebanese citizens at checkpoints and their being questioned are consistent with the "Country Material" which was before the RRT (A4). This material refers to checkpoints and, in particular, to low level harassment of people from the town of Becharre, which is known for its sympathy with the Lebanese Forces. A cable from Damascus dated 21 August 1994 also refers to members of Lebanese Forces being detained and questioned.

At the RRT Hearing, Ms Rahme was not asked about her statement that she might be "questioned and possibly put in jail and possible death". However, she said in evidence to the Tribunal that she should have said that she was "scared to death" of going back to Lebanon in May 1996 because of the on-going hostility there between the Syrian forces and the Lebanese people. The Tribunal finds, relying on Ms Rahme's evidence, that at the time she submitted an application for a spouse visa, she was scared and upset at the thought of returning to Lebanon as a result of the hostility with the Syrian forces still being on-going. In the Tribunal's view, this was reasonable given her previous experience of being stopped and questioned at checkpoints, as a result of Syrian soldiers having visited her house, and her knowledge of what had happened to her uncle, who was detained and beaten up.
Apart from the inconsistency in her evidence at various times about the Syrian soldiers going to her house and the degree of threat that she felt, there have been no other allegations of wrong-doing on her part. Ms Rahme was not in Australia unlawfully at any time and was compliant with officers of the Department. The character references from people who know her in Australia are all supportive.
DISCUSSION OF THE LAW
There have been a number of recent Federal Court decisions on the validity of Direction No. 17. In Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514 (4 May 2001), Dowsett J found the Direction to be invalid because it seeks to fetter the exercise of discretion - by prescribing that some factors (the "primary considerations") can have more weight than others – and is therefore inconsistent with the decision-maker's power to refuse or cancel a visa under s 501 of the Act. The Tribunal notes, however, that Part 1 of the Direction which concerns the application of the character test, was not relevant in that decision and the inconsistencies identified by Dowsett J were in relation to the considerations affecting the exercise of the discretion in Part 2 of the Direction.
Aksu (supra) was followed in Ruhl v the Minister for Immigration and Multicultural Affairs [2001] FCA 648 (1 June 2001). Cooper J agreed with Dowsett J that Direction No. 17 operates to limit the exercise of discretion in a way that is inconsistent with s 501 of the Act.
However, in Turini v Minister for Immigration and Multicultural Affairs [2001] FCA 822 (29 June 2001), Whitlam J expressed his opinion that the decision in Aksu (supra) was wrong and that Direction No. 17 was a valid direction under s 499(1) of the Act with which the Tribunal was bound to comply.
Then, in Javillonar v Minister for Immigration and Multicultural Affairs [2001] FCA 854 (6 July 2001), Stone J said that, in her opinion, both Aksu (supra) and Ruhl (supra) are correct in their interpretation of Direction No. 17.
Finally, in Jahnke vMinister for Immigration and Multicultural Affairs [2001] FCA 897 (12 July 2001), Drummond J, whilst not agreeing with all of Dowsett J's reasoning in Asku (supra), said, nevertheless, at paragraph 18:

Paragraphs 2.2 and 2.17 of the Direction impose an unlawful fetter because they lay down a general rule that, in no case, can a non primary consideration telling against cancellation of a person's visa under section 501 be given more weight than any of the three primary considerations, no matter how powerfully that non-primary consideration may favour allowing the particular person to retain the visa

Drummond J's discussion was directed at Part 2 of the Direction with Part 1 not being in contention.

Thus, a number of recent authorities state that Direction No. 17 is invalid, although they are principally concerned with the fetter which arises in Part 2 of the Direction and not with regard to the guidance provided in Part 1 as to the application to the "character test". The Tribunal notes that in Turini (supra), Whitlam J specifically held Part 1 of the Direction to be a valid exercise of power under s 499(1) of the Act.
The Tribunal also had regard to a recent decision by Deputy President Block RePolicarpio and Minister for Immigration and Multicultural Affairs [2001] AATA 658 (19 July 2001). Having discussed the recent Federal Court decisions, Deputy President Block said that in his view the Direction was binding on him. However, he said that even if the Direction is not binding, it unquestionably sets out the applicable policy. He referred to Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634, where Brennan J stated at 640 – 641:
There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion which is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies, which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity with the administrative process.
Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to a purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute…Also, it would be inconsistent with (the Act) if the Minister's policy sought to preclude consideration of relevant arguments running counter to an adopted policy which might be reasonably advanced in particular cases...The Minister must decide each of the cases...on its merits. His discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases. A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative. A Minister's policy, formed for the purposes of (the Act) must leave him free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the Minister will make in the circumstances of a given case.
That is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, the policy which is informative of the standards and values which the Minister usually applies. There is a distinction between an unlawful policy which creates a fetter purporting to limit the range of discretion conferred by a statute, and a lawful policy which leaves the range of discretion intact while guiding the exercise of a power…

Thus, Deputy President Block concluded that whilst he was of the view that the Minister's direction is binding on the Tribunal, even if it is not, it is a clear statement of policy to which he should have regard.
In the present case, the Respondent submitted that the Tribunal must have regard to Part 2 of the Direction No. 17 when exercising its residual discretion under s 501 of the Act (Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583), notwithstanding the decisions in Aksu (supra) and Ruhl (supra).
The Respondent contended that even if portions of Part 2 of the Direction are contrary to the rule against the fettering of a discretion, then the offending portions should be severed by application of s 46(1)(b) of the Acts Interpretation Act 1901 which permits an instrument to be read and construed as a valid instrument to the extent that it is not in excess of power.
The Applicant did not make lengthy submissions on the validity and application of the Direction, but did, however, acknowledge that the Tribunal, in exercising its discretion, should adopt a balancing process when considering both "primary" and "other" considerations.
THE TRIBUNAL'S APPROACH TO DIRECTION NO. 17

Having reviewed the above authorities, the Tribunal decided that it was appropriate to treat the two parts of the Direction separately. Part 1 provides guidance to decision makers on the application of the character test in s 501(1) of the Act. The Tribunal does not accept the Applicant's submission that paragraphs 1.9, 1.10 and 1.11 of the Direction fetter the exercise of the discretion. Such a submission was rejected by Whitlam J in Turini (supra) at para 23, and does not appear to have been argued in the other recent Federal Court decisions referred to above.
Secondly, with regard to Part 2 of the Direction, which addresses the situation where a non-citizen does not pass the character test but a decision maker is, nevertheless, required to exercise his or her discretion as to whether to refuse or cancel a visa. In the Tribunal's view, the clear weight of authority is that Part 2 of the Direction is invalid by reason of the attempt to fetter the exercise of discretion. However, to the extent that Part 2 represents the Government's policy with respect to the refusal or cancellation of visas, the Tribunal's view is that it should take into account such policy without fettering its discretion by giving pre-eminent weight to particular considerations. The Tribunal is not inclined to attempt the severance of objectionable parts of Part 2 of the Direction. It might, however, be argued that by treating Part 1 of the Direction as valid and Part 2 as invalid, the Tribunal is recognising a broader application of severance and the reading or construing of an instrument in accordance with s 46(1)(b) of the Act's Interpretation Act 1901.
In summary, in the present case, the Tribunal intends to adopt the following approach to Direction No 17. Firstly, the application of the "character test" in s 501(6)(c) will be made by reference to a discussion of what is meant by "good character" noting, for example, Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, where, 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's entry's character in the sense of his or her 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…

Part 1 of Direction No. 17, which is binding on the Tribunal, will also be used as a guide. In this regard, the Tribunal also notes the Full Federal Court decision in Irving v Minister for Immigration, Local Government & Ethnic Affairs (1996) 68 FCR 422 at 94 where Lee J emphasised that "a reference to the enduring moral qualities of a person…is an objective assessment apt to be proved as a fact".
Secondly, if the Tribunal decides that, in its view, the Visa Applicant does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) to grant a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal will have regard to Part 2 of the Direction as a guide to the exercise of its discretion as if this were government policy and not a binding Direction. The Tribunal will disregard the instruction in Part 2 that the decision-maker should give greater weight to some considerations than to others on the basis that this constitutes a fetter on the decision-maker's discretion.
APPLICATION OF THE LAW

The Respondent contends that Ms Rahme, by reason of her past and present general conduct, is a person who is not of good character and is, therefore, a person who does not pass the character test by virtue of s 501(6)(c) of the Act.
The Respondent points to two false statements in her protection visa application as evidence that she is not of good character. These statements are that the Syrian army visited her home on "many occasions" and if she had to go back to Lebanon, she would be harassed, questioned and "possibly put in jail and possible death".
The Respondent referred the Tribunal to paragraph 1.9(b) of Direction No. 17 as guidance in determining whether or not Ms Rahme passes the character test. Sub-paragraph (b) provides:
Whether the non-citizen has, in connection with any application for the grant of a visa or any kind of government benefit, provided a bogus document or made a false or misleading statement;…

The Tribunal does not accept the Respondent's contention that Ms Rahme lodged a bogus document. However, as Ms Rahme acknowledged, her statements were exaggerated, and to this extent the Tribunal recognises that the visa application includes statements which are false or misleading. Nevertheless, the circumstances in which she made these exaggerated statements must, in the Tribunal's view, be taken into account. The Tribunal finds that she was genuinely frightened of returning to Lebanon at that time. The Tribunal also notes the decision in Succar v Minister for Immigration and Multicultural Affairs [1998] FCA 1222 (19 August 1998), where Tamberlin J (at 1) said that he accepted that Ms Succar, as Ms Rahme then was, "has a subjective fear of persecution if returned to Lebanon".
This state of mind was based upon her previous experience in Becharre, in particular; of her being stopped and questioned and having her car searched at checkpoints;, of Syrian soldiers visiting her house looking for her; and, of her uncle being detained, questioned and beaten up. At the time she submitted the visa application, Ms. Rahme also saw television coverage of what was happening in Beirut which indicated there was a continuance of the oppressive approach taken by the Syrian forces to the local Lebanese population.
The Applicant referred the Tribunal to the High Court Decision in Abebe vCommonwealth (1999) 197 CLR 510 at 52, where Gummow and Hayne JJ observed that:
The fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her story is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.

The Applicant also referred the Tribunal to Re Leyden and Minister for Immigration and Multicultural Affairs [2000] AATA 551 (5 July 2000) where Deputy President Chapell found the Visa Applicant met the requirements of the character test; and to Re Soufan and Minister for Immigration and Multicultural Affairs [2001] AATA 650 (7 June 2001) where Deputy President Wright, in a case involving the same Principal Migration Officer, Mr Davis, concluded that the Visa Applicant met the requirements of the character test.
The Tribunal is of the view that Ms Rahme made no sustained attempt to mislead the Respondent. Indeed, she admitted at her RRT hearing that the Syrian soldiers had visited her house on only one occasion, and not on many occasions, as she had stated in her visa application. Apart from the exaggerations made by Ms Rahme in her visa application form, all the evidence is that Ms Rahme's behaviour has been one of compliance with the Respondent's requirements and, otherwise, having been open and honest in her dealings with the Respondent. The Tribunal had regard to Ms Rahme's "enduring moral qualities" (Goldie) (supra)). With the exception of the exaggerations concerning a fear of persecution in Lebanon, there is no other evidence to suggest that Ms Rahme has been anything other than a person of moral integrity. The Tribunal is not persuaded that Ms Rahme is not of "good character". Indeed, the evidence generally points to her being of good character. Having come to this conclusion, it is unnecessary for the Tribunal to otherwise consider the exercise of the decision-maker's discretion under s 501(1). However, the Tribunal notes, in particular, that Ms Rahme has a genuine and continuing relationship with an Australian citizen and is of the view that the expectations of the Australian community would be that she and her husband should be permitted to live together in Australia and raise a family, as is their express wish.
Accordingly, the decision under review is set aside and the matter is remitted to the Respondent for reconsideration with a direction that Ms Rahme passes the character test under s 501(1) of the Migration Act 1958.
POST SCRIPTUM – DIRECTION NO. 21
After drafting this Statement of Reasons, the Tribunal became aware that 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 – which revoked and replaced Direction No. 17. The new Direction No. 21 is a minor modification of the wording of Direction No. 17, involving amendments to paragraphs 2.2, 2.17, 2.19 and the addition of a new para 2.21. The Tribunal is bound by the new Direction from the date that it was made.
The modifications to paragraphs 2.2. and 2.17 are those which are of significance in terms of the criticisms directed at Part 2 of Direction No. 17 in recent Federal Court decisions. The sentence:
Decision-makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or cancel a visa

has been omitted from Direction No 21. Also, in paragraph 2.17, the word "generally" has been added to the second sentence which now reads:

It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than to the primary considerations (Tribunal's emphasis)

In the present case, where the Tribunal has made its decision by reference to Part 1 of Direction No. 17, the modifications in Direction No. 21 do not affect the Tribunal's decision.
The changes to Part 2 of the Direction appear to address the concern expressed by the Federal Court in, for example, Aksu (supra) and Ruhl (supra) about the fettering of discretion. It was not necessary to apply Part 2 of the Direction in this case.
Accordingly, the decision under review is set aside and the matter is remitted to the Respondent for reconsideration with a direction that Ms Rahme passes the character test under s 501(1) of the Migration Act 1958.
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President
Signed:         .....................................................................................
  Associate
Date/s of Hearing  15 & 16 August 2001
Date of Decision  28 September 2001
Counsel for the Applicant        Mr N Poynder
Solicitor for the Applicant         Mr M Kah, Kah & Associates
Solicitor for the Respondent    Mr P Hardman, Clayton Utz Lawyers