Ruffell Pty Ltd (Trading as Ruffell Family Jewellers) and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 965

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 965

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2005/656

GENERAL  ADMINISTRATIVE  DIVISION

Re:       RUFFELL PTY LTD

(trading as RUFFELL FAMILY

JEWELLERS)

Applicant

And:MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal:       The Hon Howard Olney AM QC, Deputy President

Date:30 September 2005

Place:Melbourne

Decision:The Tribunal:

1.sets aside the decision under review dated 19 November 2002; and

2.substitutes a decision that the visa applicant not be refused a Class AN (Employer Nomination – Migrant) subclass 119 visa on the basis that he does not pass the character test pursuant to s 501 of the Migration Act 1958.

(sgd) H.W. Olney

Deputy President

MIGRATION – Class AN visa - character test – overseas conviction relevant to Australian law - manner in which Direction 21 should be interpreted - discretion to be applied in favour of the applicant

Migration Act 1958 s 501

REASONS FOR DECISION

30 September 2005  The Hon Howard Olney AM QC, Deputy President

THE APPLICATION

1.      Ruffell Pty Ltd (trading as Ruffell Family Jewellers) (the review applicant) has made application to the Tribunal to review the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) dated 19 November 2002 refusing to grant Michel Assi (the visa applicant) a Class AN (Employer Nomination – Migrant) subclass 119 visa.

2. The decision to refuse the visa applicant's visa was made pursuant to s 501 of the Migration Act 1958 (the Act) on the ground that he did not pass the character test within the meaning of s 501.

3.      The visa applicant was in Australia at the time of the decision.  In these circumstances the provisions of 500(6A) to s 500(6L) of the Act apply to this application.

4. Although the decision under review was made on 19 November 2002 and was initially notified on 18 July 2003, for reasons that are not presently relevant, it was re‑notified pursuant to s 501G of the Act on 18 July 2005. The present application was filed in the Tribunal on 26 July 2005.

THE VISA APPLICANT'S BACKGROUND

5.      The visa applicant was born on 12 August 1955 in Lebanon.  He and his wife, Dolly Gerges, have three children presently aged 15, 13 and 6 years.

6.      The visa applicant formerly lived in Beirut where he carried on business as a merchant jeweller and operated two jewellery shops.  In the course of his business he borrowed a large sum of money on which he paid substantial interest.  He had an arrangement with a jewellery company whereby he took 24ct gold on commission to manufacture as wedding bands.  He returned about 50 per cent of the product to the company and sold the balance on the market, keeping about US$1 per gram for himself.  He also purchased from the same company finished jewellery which he sold in his shop and in the marketplace.  The practice, which continued for about 8 years, was that when he obtained stock he would give the company a post‑dated cheque for the value and then exchange money and cheques he received from customers after selling the jewellery for the post‑dated cheques.  He says that the cheques were given purely as security with no intention that they ever be presented for payment.

7.      The visa applicant says that he fell out with the people with whom he had been dealing, who were Syrians, when they discovered that he was a follower of Michel Aoun who was then fighting for Lebanese independence from Syrian interests.  For one reason or another (the visa applicant would have it because of his political views although that is not altogether clear), his former business associates mounted a campaign of threats and intimidation against him which culminated in him deciding, in May 1999, to flee Lebanon for Cyprus.

8.      For present purposes, it is unnecessary to delve into the claims made in respect of threats made by the visa applicant, his wife and other family members; that was done in proceedings that were taken in Australia some years later in relation to an unsuccessful application for a protection visa.

9.      The visa applicant lived and worked in Cyprus for about 14 months before being joined by his wife and children in July 2000.  Shortly thereafter the family obtained visas to visit Australia and arrived in Melbourne on 1 September 2000.

10.     The visa applicant says, and the Tribunal accepts, that he has not worked since his arrival in Australia, but for a short period in 2000, he spent about two weeks with the review applicant's business (without remuneration) demonstrating his skills as a jeweller.

PREVIOUS MIGRATION ACT PROCEEDINGS

11.     The visa applicant entered Australia in September 2000 on a Tourist (Short Stay) visa, subclass 676, which allowed multiple entries into Australia and was valid until 14 August 2001.  The visa was subject to conditions 8503 (no further stay) and 8101 (no work).

12.     On 15 November 2000 the visa applicant requested the waiver of condition 8503 but this was rejected on 5 December 2000.

13.     On 1 February 2001 the review applicant submitted an employer nomination under the regional sponsored migration scheme in which it nominated the visa applicant for the position of Antique Restoration/Manufacturer.  The nomination was approved and on 5 March 2001 while in New Zealand (where he had travelled on 3 March 2001) the visa applicant applied for the subclass 119 visa.  The visa applicant's wife and children are included in the application.

14.     On 25 October 2001 the visa applicant was given Notice of Intention to Cancel his tourist visa and advised that he had to leave Australia.  When interviewed by an officer of the Department of Immigration and Multicultural and Indigenous Affairs on 2 November 2001 he stated that he had made arrangements to leave Australia and produced a deposit for tickets to depart on 10 November 2001.  He did not depart on 10 November 2001 but rather, on 9 November 2001 he made application for a protection visa.  His tourist visa was cancelled on 13 November 2001.

15.     The decision to cancel the visa applicant's tourist visa was challenged in the Migration Review Tribunal which affirmed the cancellation on 14 June 2001.

16.     On 28 May 2002 a delegate of the Minister refused the application for a protection visa.  The refusal was challenged in the Refuge Review Tribunal which affirmed the decision on 19 December 2003 and this was upheld by the Federal Court on 13 April 2005.

17.     The visa applicant's application for a subclass 119 visa (which had been lodged on 5 March 2001) was refused by a delegate of the Minister on 19 November 2002 on the ground that the visa applicant did not pass the character test.  This decision was challenged by the visa applicant in the Tribunal, but the Tribunal (Forgie DP) held that the review rights were vested in the present review applicant.  This decision was unsuccessfully appealed against in the Federal Magistrates Court, which delivered its decision on 25 February 2005.

18. The visa applicant then appealed to the Federal Court, but before the matter was heard, it was agreed that the respondent would re‑notify the visa applicant of the decision in accordance with s 501G of the Act and thus enable the review applicant to make an application to the Tribunal. (The Tribunal had previously decided that it had no power to grant the review applicant an extension of time to make its application based on the original notification in July 2003.) On 27 June 2005 the respondent purported to re‑notify the decision to refuse the visa but did not do so in accordance with s 501G. A further re‑notification took place on 18 July 2005. This application was filed on 26 July 2005.

19.     The foregoing paragraphs demonstrate that the visa applicant has been extremely active in his attempts to secure the necessary approval to enable him to remain in Australia.  In this regard he was quite honest in his response to a question put by the Tribunal as to his intention when he first arrived in September 2000, as the following extract from the transcript (at p165) demonstrates:

THE D.PRESIDENT:   Tell me, when you left Cyprus on 1 September 2000, what was your intention with respect to your future?---Our intentions was actually two things, one is because we had a christening here and Dolly, my wife, was supposed to be the godmother; and the other one is to find a sponsor and to migration to Australia.

All right, well, perhaps I should ask this way:  what was your intention concerning returning to Cyprus?---If I have to explain myself this way, when I went to the embassy in Cyprus I asked them this question: we were rejected a visa from Beirut.  We need to go to Australia.  We have an occasion.  We have a christening and also we would like to migration to Australia but we don't know what we can do.  And our advice was, under the visa, visits visa, you're not allowed to work but you can go and demonstrate your work.

Well, did you have an intention when you left Cyprus of returning to Cyprus or Lebanon?---No.

So when you arrived in Australia on 1 September 2000 it was your intention to stay in Australia; is that right?---Well, yes, I mean, in there – in the frame of legal procedures, yes.

Yes?---I can obtain that – legally, yes.

20.     It would be inappropriate to draw any adverse inference from the visa applicant's admission that, when he left Cyprus on a tourist visa, his intention was to stay in Australia if he could do so legally.  Nor should the multiplicity of procedures engaged in after arrival in Australia be taken as an indication of an ulterior motive on his part.  The position is that the visa applicant has not done anything illegal in his efforts to remain in Australia.  He has quite legitimately taken advantage of the complexities of the migration law.

THE CHARACTER TEST

21. Section 501 of the Act, so far as presently relevant, provides:

501(1)     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.

…

(6)          For the purposes of this section, a person does not pass the character test if:

(a)the person has a substantial criminal record (as defined by subsection (7)); or

(b)…

(c)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; or

(7)          For the purposes of the character test, a person has a substantial criminal record if:

…

(c)the person has been sentenced to a term of imprisonment of 12 months or more; or

(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or

…

22.     The evidence establishes that on 21 May 2001 a court in Lebanon (in two separate proceedings brought by his former business associates in which the visa applicant is named as the defendant) made orders putting the defendant in jail in one case for two years and in the other for one year.  In each case the Court found that the defendant had withdrawn checks without provision which constitute the elements of the crime punishable by article 666 of the penal law.  The Court also imposed fines of $2 million and $1 million Lebanese pounds and ordered the defendant to pay the amount of the cheques which aggregated US$24,200.  Both proceedings were conducted in the absence of the defendant.

23. There is no basis to challenge the assertion that the visa applicant failed the character test. For the purposes of s 501 of the Act, each of the sentences imposed by the Court in Lebanon satisfies the definition of substantial criminal record (s 501(7)(c)). There is, however, no evidence to support the proposition that s 501(6)(c) may apply. Indeed, the contrary is so. There is direct evidence that the visa applicant has no record of criminal conduct other than the matters referred to above. Nor has there been any suggestion that he is other than a person of good character. In the circumstances, the only matter relevant to the decision‑making process relates to the sentences imposed by the Court in Lebanon on 24 May 2001.

THE TRIBUNAL PROCEEDINGS

24.     The application was heard on 5 September and 6 September 2005.  In all, 25 witnesses and 98 documents were tendered (including 96 on behalf of the applicant).  The main witnesses were:

·   the visa applicant

·   Mrs Dolly Gerges

·   Dr Jeffrey Elwood Cummins (a clinical and forensic psychologist)

·   George Youssef Karam (a lawyer from Rijadh, Saudi Arabia)

·   Abdo Saab (a lawyer from Beirut, Lebanon)

The other witnesses were friends and supporters who have known the Assi family since their arrival in Australia and a number of family members.  For the most part, those documents that were tendered without formal proof were in the nature of testimonials from friends and supporters.

25.     Dr Cummins spoke of an interview with the two younger Assi children: Eli (aged 13) and Martin (aged 6).  He provided a written report dated 24 August 2005, which was tendered in evidence (Exhibit A1).  The following is an extract from Dr Cummins' opinion and conclusions as expressed in his report:

…

I was satisfied both Elie and Maria Assi wish to remain in Australia.  For Maria English is her first language and she has no recollection of having lived in Lebanon.  For Elie English is not his first language although it was obvious he was able to speak very fluent English.  I was advised Elie is excelling with his schoolwork.  Elie stated he has recollections of bombings in Lebanon.  He has a history of separation anxiety and panic attacks for which he received treatment from the Austin Hospital.  Maria has also received treatment from the Austin Hospital for a stutter – said to be related to the stress caused by the chronic unresolved immigration situation – within the family.

Based upon my assessment of Elie Assi I was satisfied that the symptoms of anxiety have now essentially resolved.  My assessment of Maria indicated she presented as a friendly and confidant six year old although, significantly, she still reports having nightmares on a frequent – and virtually nightly – basis.

Based upon my assessment of Elie and Maria Assi it is, in my opinion, in the best interests of Mr.Assi's children, that Mr. Assi's application for a regional sponsored employment visa (subclass 119) be granted.

In my opinion the Assi family has had to endure multiple and chronic stress both leading up to and subsequent to Mr. Assi's decision to escape from Lebanon to Cyprus, after which the family was sponsored by Mr. Martin Ruffell to Australia.  In my opinion Mr. and Mrs. Assi and their children Elie and Maria (I did not interview their son Joe) would have developed multiple anxiety disorder including Post Traumatic Stress Disorders in response to their immigration situation.

26.     The evidence of Mr Karam and Mr Saab dealt with business practices in Lebanon and supported much of what has been dealt with earlier in these reasons concerning the mode of operation of the visa applicant's business in Lebanon.  Further reference to Mr Saab's evidence will be made later.

27.     Amongst the written statements, tendered by consent without formal proof, is a report dated 9 August 2005, addressed to the Tribunal, (Exhibit A2) written by Dr Kate Kendall, who is a senior clinical psychologist at the Austin Health Child and Adolescent Mental Health Service.  The report details the author's contact with the Assi family since the middle of 2004.  In her final paragraph Dr Kendall states:

…

The family's capacity to withstand adversity has enabled them to develop and grow, and begin to rebuild their life.  It would be my concern that this resilience would be difficult to sustain if the family were forced to rebuild their life yet again.  I should be very concerned if the children's lives had to be uprooted when they are just beginning to establish themselves and with the two boys approaching adolescence this is a critical time for them.  It clearly would not be in the children's best interests to move them from their current environment.  I would ask you to take this into consideration when considering the family's request to remain in Australia. 

28.     The evidence of the visa applicant's various friends and supporters justifies the conclusion that the Assi family is highly regarded by those with whom they have made contact since their arrival in Australia.

THE MINISTERIAL DIRECTIONS

29.     By Direction dated 23 August 2001, the then Minister, acting pursuant to s 499 of the Act, issued a direction which is cited as Direction – Visa Refusal and Cancellation under section 501 – No 21 (Direction № 21).  In a case where an applicant does not pass the character test Direction № 21 requires the Tribunal to have regard to three primary considerations, namely the protection of the Australian community and members of the community, the expectations of the Australian community and in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children.

PROTECTION OF THE AUSTRALIAN COMMUNITY

30.     The offence for which the visa applicant was convicted in Lebanon is not one which the Government considers serious (Direction № 21, para 2.6) nor is there any basis to suggest that there is a likelihood that the conduct may be repeated or that the refusal of the visa may prevent or discourage similar conduct (Direction № 21, para 2.5(b) and (c)).

31.     Paragraph 2.8 of Direction № 21 directs the Tribunal to take into account as relevant considerations:

…

(a)any relevant factors provided by the non‑citizen as mitigating factors;

(b)the offence is not classified as an offence in Australia.

·   for example, a non‑citizen who has been subjected to imprisonment as a result of political, religious or ethnic persecution may fail the substantial criminal record component of the Character Test.  However, discretion may be exercised to grant the visa permitting the non‑citizen to enter or stay;

(c)a lighter sentence would be incurred in Australia for a similar offence; or

(d)the non‑citizen has been pardoned:

32.     Article 666 of the Lebanese Penal Law under which the visa applicant was sentenced provides:

…

·   Everyone who withdraws an uncovered check or a check without sufficient provision gets an imprisonment sentence from three months to three years as punishment and a fine from one million to four million Lebanese pounds.  He is also ordered to pay the value of the check plus a remedy amount for the damage caused.

Whilst the terminology used is not necessarily the same as would be used in Australian legislation the import of the section is clear enough, namely that it is an offence to draw a cheque when the drawer has no, or insufficient funds, to meet it.  In a written statement Mr Abdo Saab, a lawyer practising in Beirut, after setting out the terms of Article 666, makes the following comments:

…

This is the legal text and it is clear and does not need explanation.

However, in Lebanon, it has become a common practice between traders and merchants to deal with "Deferred Checks"/Promissory notes that are provided as a security or a guarantee, but the trader does not have the right to use these promissory notes or to offer them to a Bank.  He withholds and keeps them until the due date of the payment.  When he receives his payment – the value of the check – from the drawer, he then returns the "deferred check/promissory note" to the drawer.

So Promissory notes have become a common practice and a tradition practiced by all merchants in their commercial dealings without going to Courts or depositing them or offering them to the Banks.  This is so because whoever accepts a promissory note or a deferred check – a check without provision – is considered an accomplice and is penalized in the same way as the person who draws the check.  This is the reason why everyone avoids taking legal action in regard to deferred checks fearing prosecution and punishment.

Whilst these comments may provide some support for the visa applicant's expressed understanding that it is illegal in Lebanon to write a post‑dated cheque, it would seem that in practical terms Article 666 makes it an offence to write a cheque which is not paid on presentation.

33.     It is significant that the Lebanese law does not contain an element of fraud or dishonesty.  At the Tribunal’s request the parties were requested to research similar provisions under Australian law.  The result of this research discloses that the following Australian statutes create offences relating to valueless cheques:

Summary Offences Act 1966 (Victoria) – s 37

Crimes Act 1900 (NSW) – s 178B

Criminal Code 1899 (Queensland) – s 427A

Criminal Code 2002 (Australian Capital Territory) – s 336

Police Act 1892 (Western Australia) – s 64A

Summary Offences Act 2953 (South Australia) – s 39

Summary Offences Act (Northern Territory) – s 60.

The general thrust of each of these statutes is that it is an offence to obtain any chattel, money, valuable security, credit, benefit or advantage by passing a cheque which is not paid on presentation unless it is proved that the defendant had reasonable grounds for believing that the cheque would be paid in full on presentation and that he had no intention to defraud. There is some slight variation between the different statutes. In Queensland s 427A of the Criminal Code also extends the scope of the offence to include the passing of a cheque in the discharge or attempted discharge of any debt, liability or obligation and in the Northern Territory a similar, although not identical, extension applies. In Western Australia s 64A of the Police Act 1892 applies only where the cheque has been passed within 60 days from the day of opening of the account on which the cheque is drawn.

34.     From the material put before the Tribunal, it may be said with some confidence that it is not an offence in Australia to pass a cheque which is not paid on presentation unless the passing of the cheque is attended by other circumstances, such as the obtaining of money, property or some other valuable benefit; and therefore, to the extent that Article 666 of the Lebanese Penal Law does not call for the proof of such additional circumstances, it creates an offence which is not an offence in Australia.  This is a matter which the Tribunal must take into account.

35.     Notwithstanding the differences between the relevant laws of Lebanon and Australia it cannot be denied that the laws applying in Australia relate to offences which are similar to that created by Article 666 of the Lebanese Penal Law.  It is therefore appropriate to consider whether a lighter sentence would be incurred in Australia for such similar offences.  This is an extremely difficult task given that the element of fraud or dishonesty, which in Australia would be likely to be highly relevant in considering the extent of any sentence, is not present in the Lebanese law.

36.     Counsel for the applicant has made available to the Tribunal a significant amount of material relating to the sentencing of offenders for offences involving the passing of valueless cheques and other similar types of offences.  Having regard to the fact that under the Victorian, New South Wales, Australian Capital Territory, Western Australian and Northern Territory laws referred to above, the maximum period of imprisonment that may be imposed is one year, and under the Queensland and South Australian law the maximum is two years, it is not unreasonable to conclude that in Australia conviction for a first offender in circumstances which do not involve an element of fraud or dishonesty would be unlikely to attract a prison sentence, and certainly not one as severe as that imposed by the Court in Lebanon.

37.     Apart from the matters discussed in the preceding paragraphs, it is also appropriate to have regard to other relevant mitigating factors.  In the present case the visa applicant was proceeded against and sentenced in absentia and had no opportunity to explain his side of the case.  It is most unusual in Australia for a sentence of imprisonment to be imposed in such circumstances. 

38.     Having regard to what has been said above, the Tribunal is of the view that there is nothing about the visa applicant's character or conduct that could, in any way, be regarded as putting members of the Australian community at risk in the event that he is granted the visa sought.

EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

39.     The Australian community expects that citizens and non‑citizens should obey Australian law while in Australia.  The visa applicant has been present in Australia now for five years:  he has not offended against Australian law during that time and there is no sensible basis upon which to suggest that it would be otherwise in the future if he should be granted a visa allowing him to remain here.

THE BEST INTERESTS OF THE CHILDREN

40.     The visa applicant's children are presently aged 15, 13 and 6.  They have lived in Australia for the last 5 years.  They have gone to school here and speak English, but have little or no understanding of Arabic.  Their best interests will be served by remaining with their parents.  There is no suggestion that the outcome of the present application would, in any way, give rise to the separation of the children, or any of them, from their parents.

41.     Amongst the matters the Tribunal is required to have regard to when considering the best interests of children (as stated in Direction № 21, para 2.16) are:

…

(g)the time (if any) that the child has spent in Australia;

(h)the circumstances of the probable receiving country, including the educational facilities and the standard of the health support system of the country to which the child may have to go, or return to, should the non‑citizen not be permitted to enter or remain in Australia;

(i)any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages; and

(j)any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances.

42.     The medical evidence referred to earlier in these reasons is supportive of the proposition that the interests of the children, particularly the two younger children, would best be served by them being permitted to remain in Australia.

43.     Clearly, the children have now spent a significant part of their lives in Australia and wish to remain here.  It is assumed that if the visa applicant is not granted a visa, the family would return ultimately, if not immediately, to Lebanon; but as the Tribunal has no reliable information as to the educational facilities and the standard of any health support system in that country, it is not possible to reach a conclusion in relation thereto.  There would be some difficulty with adapting to a different language, at least initially, but it seems unlikely that there would be any cultural barrier that would operate to their detriment.

CONCLUSIONS

44. The only impediment to the visa applicant being granted the visa sought is that, in terms of s 501(1) of the Act, he has failed to pass the character test by reason of him having been sentenced in Lebanon to a period of imprisonment of 12 months or more.

45.     The conduct for which the sentence of imprisonment was imposed would not amount to a criminal offence in Australia in the absence of fraud or dishonesty, neither of which has been alleged against the visa applicant.

46.     The sentence imposed by the Lebanese Court is considerably harsher than would have been imposed in Australia for a similar offence (assuming always that fraud or dishonesty was proved).

47.     The visa applicant has not been guilty of any other unlawful conduct in Australia or elsewhere, and is unlikely to commit offences in Australia if he is permitted to remain in the country.  The safety and welfare of the Australian community would not be put at risk were a visa to be granted.

48.     The reasonable expectations of the Australian community would not be violated in the event that a visa were to be granted.

49.     The interests of the visa applicant's children will be best served by them remaining with their parents.  It is likely that their educational and social welfare would be well served by remaining in Australia.

50. In all the circumstances, the Tribunal is of the view that the decision under review should be set aside and a decision that the visa applicant not be refused a Class AN (Employer Nomination – Migrant) subclass 119 visa on the basis that he does not pass the character test pursuant to s 501 of the Migration Act 1958 be substituted.

I certify that the fifty [50] preceding paragraphs are a true copy of the reasons for the decision herein of

The Hon Howard Olney AM QC, Deputy President

(sgd)     Catherine Thomas

Clerk

Dates of Hearing:  5 September 2005 and 6 September 2005

Date of Decision:  30 September 2005
Counsel for the applicant:         Mr M. Gerkens

Solicitor for the applicant:          FCG Legal Pty Ltd

Solicitor for the respondent:       Mr M. Brereton, Australian Government Solicitor