"WAS" and Minister for Immigration and Multicultural Affairs - [2002] AATA 326

DECISION AND REASONS FOR DECISION [2002] AATA 326

ADMINISTRATIVE APPEALS TRIBUNAL

N° W2001/262

GENERAL ADMINISTRATIVE DIVISION
"WAS"
Applicant

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
Respondent

DECISION

Tribunal:       Deputy President G.L. McDonald
Date:             9 May 2002
Place:            Perth

Decision:The decision under review is set aside and a decision substituted that the spouse visa ought not be refused to the visa applicant on the basis he is a person not of good character.

(sgd) Graham McDonald
Deputy President
MIGRATION - spouse visa (Subclass 309) – whether visa applicant misled Australian immigration authorities with information in previous visa applications – whether Administrative Appeals Tribunal bound to accept credibility findings of visa applicant made by Refugee Review Tribunal – whether general discretion should be exercised in visa applicant's favour
Migration Act 1958 ss.234(1), 417, 501

Irving v Minister for Immigration, Local and Government and Ethnic Affairs (1996) 139 ALR 84

REASONS FOR DECISION

9 May 2002 Deputy President G.L. McDonald

The applicant, "WAS", is applying for the review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") dated 27 June 2001 refusing the issue of a spouse visa (Subclass 309) to her husband ("the visa applicant"). The reason for the refusal of the visa was that the visa applicant did not pass the character test provided for in section 501 of the Migration Act 1958 ("the Act"), i.e. the delegate was satisfied that having regard to the visa applicant's general conduct the delegate was satisfied that he is not a person of good character. Additionally, the delegate refused to exercise the general discretion available in section 501 in the visa applicant's favour.
These proceedings are a de novo consideration of the evidence. Some of the evidence before the Tribunal may not have been before the delegate. Additionally, in considering the issue of the exercise of the discretion the delegate was bound by Ministerial Direction Nº 17: that has since been replaced by Ministerial Direction Nº 21, issued on 23 August 2001. The Direction Nº 21 is binding on the Tribunal. A differently constituted Tribunal previously made confidentiality orders with respect to the names of the visa applicant and the applicant, as well as in relation to an organisation in Lebanon, claimed by the visa applicant, to be the organisation which threatened him and in relation to which he claims he lives in fear of his life. In these reasons that organisation is referred to as "the Organisation".
The Tribunal is satisfied as to the following background facts:

the visa applicant was born on 29 October 1978 as a third generation Palestinian living in Lebanon. As such, he is a stateless person and is not a citizen of Lebanon. Palestinians in his situation are commonly referred to as refugees. He is enabled to travel internationally not as a result of holding a passport but as the result of the issuance of a "… Document de Voyage pour les Refugies Palestiniens" issued by the Government of Lebanon.
on 4 March 1998 the visa applicant applied for a student temporary visa to enter Australia to study computers (Applied Science) at the University of Western Sydney. Before commencing his university studies, he was required to undertake an approved English language course (in Australia),
in connection with the visa application he was interviewed by Australian Embassy staff in Beirut on 9 April 1998,
the visa was granted and the visa applicant arrived in Australia on 3 June 1998,
on 17 July 1998 he applied for refugee status (i.e. applied for a protection visa),
the application for the protection visa was declined on 2 September 1998 and the visa applicant appealed that decision to the Refugee Review Tribunal,
on 3 November 1999 the Refugee Review Tribunal also found that the visa applicant was not a refugee,
on 16 November 1999 the visa applicant's then solicitor wrote to the Minister requesting the Minister to give "… every consideration to the [visa applicant] staying in Australia where he will be safe" (i.e. a request for the exercise of Ministerial power under section 417 of the Act),
the visa applicant met the applicant on 1 January 2000,
the applicant is an Australian citizen,
in a letter dated 23 May 2000 the Minister declined to exercise his powers under the provisions of section 417 and requested the visa applicant to contact the nearest regional office of his department,
a relationship developed between the visa applicant and the applicant married on 3 July 2000. On the same day of their marriage the visa applicant wrote to the Minister notifying the Minister of the marriage and inquiring as to the progress of the appeal lodged with the Minister on 16 November 1999,
the visa applicant was detained on 15 and 16 March 2001 before being released on a bridging visa,
the visa applicant returned to Lebanon on 4 April 2001;
on 10 March 2001 the visa applicant lodged an application for the grant of a spouse visa; and
on 27 June 2001 the visa applicant was interviewed at the Australian Embassy in Lebanon by Mr A. Davis, a delegate of the Minister, who issued a decision on the same day that the visa applicant did not qualify for a visa on the basis that he was not a person of good character.

The respondent submits that the visa applicant is unable to satisfy the good character provision of the Act because he has consistently misled the Australian immigration authorities in his dealings with them, including in the giving of his evidence to the Refugee Review Tribunal and to this Tribunal. Accordingly, it is submitted by the respondent that the onus on the applicant to establish that the visa applicant is a person of good character has not been discharged. The respondent also submits that little weight can be attributed to those witnesses who attested to the visa applicant's good character given that it is his "enduring moral qualities" which are to be determined rather than his reputation, and that, further, the evidence of the applicant and the applicant's parents should be approached with caution because of the interest which arises from their desire to have the visa applicant living in Australia.
With respect to the exercise of the discretion, while the respondent concedes the applicant is an Australian citizen who has close family, social and work ties particularly in Western Australia, she

entered into the relationship with the visa applicant knowing of the possibility of him not being permitted to remain in Australia,
sought to use the timing and circumstance of their marriage as a lever to secure his entry into Australia,
if she was to live her married life in Lebanon, has no restrictions and the means (including through her parents) of returning to Australia at any time,
has the open option to have any children born to the marriage made Australian citizens.

Accordingly, it is submitted other considerations outweigh what otherwise may be a genuine marriage as being influential in the exercise of the discretion in the visa applicant's favour.

The visa applicant denies misleading Australian immigration authorities and giving false evidence to the Tribunal. He asserts that there must have been misunderstandings in the questions asked of him in the course of interviews conducted with Australian Embassy officials in Beirut. The visa applicant also asserts that he did not set out to deceive the Australian immigration authorities or the Tribunal when giving his oral evidence.
Did the visa applicant mislead the Immigration Authorities?
It was the evidence of Ms A. Hammad, an Australian Embassy official, stationed in Beirut, Lebanon that she completed a "student bona fides" form in the presence of the visa applicant. The form is stated to be a standard form to be completed by the questioning officer to ascertain or confirm, as the title of the form suggests, if it is the true intention of the applicant to apply for a student visa to study in Australia, i.e. that there is no ulterior motivation connected with the application.
In answer to a statement on the form "situation in home country", the answer recorded is "no problems". Under the heading "Decision", Ms Hammad has recorded, "seems okay, Recommend I/V". Ms Hammad, in her oral evidence to the Tribunal, not unsurprisingly, given the number of such interviews she is required to conduct, stated she could not recall the specific conversation with the visa applicant. It was her evidence in such interviews that the question was placed in the context of an applicant having any religious and/or political affiliations or if an applicant was afraid of his life in any way. The answer she recorded indicated that the visa applicant experienced no such problems. The visa applicant, in his oral evidence to the Tribunal, could recall Ms Hammad completing the form at the Australian Embassy counter in Lebanon. He could recall being asked some of the questions on the form but not the specific question concerning the situation in his home country. The visa applicant stated that he may have understood the question to be in the context of his economic and social status and his life in general, i.e. he took it to relate to a different context from that explained by Ms Hammad.
The visa applicant was also interviewed by Mr R. Amhaz, an Australian Embassy official, stationed in Beirut, Lebanon at the Australian Embassy. The visa applicant agreed that he could recall Mr Amhaz taking notes. Mr Amhaz's computer entry concerning the interview records the visa applicant as having no refugee claims and that the visa applicant proposed returning to Lebanon at the completion of his Australian study course. Again, the visa applicant in his oral evidence said that he related the questions to a social and economic context but agreed that he told Mr Amhaz that he would return to Lebanon after his studies in Australia had been completed. It was submitted on behalf of the visa applicant that, as with the evidence of Ms Hammad, Mr Amhez only had a general recollection of the type of questions he would normally ask and had no specific recollection of the interview with the visa applicant. Accordingly, it was submitted that his evidence, like that of Ms Hammad, was unreliable.
The above two interviews were sought to be characterised by the visa applicant's representative as "informal" interviews. The formal interview, apparently conducted by Mr Kitson, a senior officer of the Australian Embassy in Beirut, was conducted in the presence of an interpreter. Exhibit 1 sets out Mr Kitson's notes of the interview, including noting that the visa applicant wishes to study computers for a period of three years. There is no mention in the notes of the visa applicant having any problems or any refugee claims. Immediately following Mr Kitson's notes of the interview of 18 March 1998 appears the following:
… [the visa applicant] said that he has no problems in Lebanon and no refugee claims. Says he will return to Lebanon when his studies are over.

It is not recorded as to who made the above entry.

The visa applicant was granted a student study visa to enter Australia. He entered Australia on 3 June 1988. On 17 July 1988 he applied for a protection visa. The application form for a protection visa contains a number of questions to be answered by an applicant. In answer to question 36 "Why did you leave that country?", the applicant replied:
I have been [sic] to be killed by [the Organisation] because of my thoughts.

And in answer to question 37 "What do you fear may happen to you if you go back to that country?",

I will be killed.

And in answer to question 40 "Do you think that the authorities of that country can and will protect you if you go back? If not, why not?":

No, because the government isn't controlling the country and especially [the Organisation].

In a statutory declaration dated 8 August 1998, the visa applicant stated:
…
4.I was thinking like this since I was a young child. I did not believe in going to war against Israel like many of the people at school and whom I knew did. This attitude caused me many problems. They considered me to be "Kafar" which means that I was unclean because of the way that I thought. There were students within the school who were members of the [Organisation]. I would often have arguments with them about the problems with Israel. These students were hard-core fundamentalists. They would often teach other teenager [sic] students about their point of view i.e. that one must fight against Israel.
…
6.In September 1995, I was walking at night and heading to my home. Some [of the Organisation] students who were driving by grabbed me and forced me into their car. They told me that the next time they heard me speaking about the situation with Israel and about stopping the fighting against Israel they would kill me. I was told that no-one in my neighbourhood would know where I was or what had happened to me. There were three people who were wearing balaclavas. I did not know who they were but they told me that they were part of [the Organisation].
…
9.On the 18th of April 1996 Israel bombed a United Nations shelter where many people sought protection. Many people were killed including my fiancee who had been hiding in that shelter. 107 people were killed. This was the sorrowful result of the fighting which occurred between Israel and the [Organisation].
10.… I once again reflected on the fact that the problems which Palestine was experiencing would not be resolved by fighting but with peace. In October 1997 I started studying … I started discussing and arguing with more members of the [Organisation] … about what I thought about the situation with Palestine. I was devastated about what had happened to my fiancee. At the [educational institution] I was learning mathematics.
11.One day I was returning home from the [educational institution] when I was approached by a car. One of the people in the car produced a pistol and fired at me. Luckily the bullet just grazed my wrist. To this day I have a scar on my wrist where the bullet grazed me. I knew that the [Organisation] had been following me. I escaped quickly as I knew that they wanted to kill me because of my political opinion. I went to a doctor who was my mother's cousin. I did not want to go to the hospital to treat the wound as I was afraid that the staff of the hospital would ask questions as to why I had been shot at.
…
13.If I return to Lebanon I am afraid that I will be killed by the [Organisation]. The Lebanese government cannot protect me. The [Organisation] are not afraid of the government. They conduct their activities in secret and the Lebanese government has no control over them.
…
The visa applicant's protection visa was refused, as confirmed in a letter to him dated 2 September 1998. The visa applicant appealed that decision to the Refugee Review Tribunal.
The Refugee Review Tribunal noted the circumstances surrounding the death of the visa applicant's fiancé but determined it to have resulted from an act of war and consequently did not constitute an issue arising for consideration under the Convention on Refugees. The Refugee Review Tribunal concluded, noting the visa applicant's claims to have been forced into a car and later to have been shot at by students/agents of the Organisation, that the visa applicant's fear for his life as a result of actions of the Organisation was not well-founded. The Refugee Review Tribunal based its determination on information from a number of different sources.
The Refugee Review Tribunal found that the following points, namely that the applicant:
…

had no political profile
was not affiliated with a political group and did not have a following of his own;
had claimed views which would have placed him in a small minority of Lebanese and therefore would not have presented a real threat to [the Organisation] (see e.g: "Lebanese political circles are now generally agreed that the armed struggle against the occupying power in southern Lebanon is justified … [The Organisation] enjoys the backing, morally at any rate, of all sections of Lebanese society" – from the Danish report cited above, part 1A);
was a schoolboy at the time he claimed to have started receiving death threats;
did not appear to have contact with [the Organisation's] fighting cadres or [the Organisation's] areas of anti-Israeli activity. [existing emphasis]
…

did not support the visa applicant as having well-founded fear of persecution in Lebanon and that the points in part argued for the opposite conclusion, i.e. that they demonstrated that the visa applicant was not in fear of his life.

The Refugee Review Tribunal however was prepared to accept that
… one or two individual [of the Organisation] supporters might independently pick a quarrel with the [visa] applicant over his views, but I do not accept that the organisation would pursue the [visa] applicant from city to city to threaten him with death. If it were the case that an individual, either from [the Organisation] or otherwise, had threatened the [visa] applicant, he could gain protection from the law enforcement authorities in Lebanon. In such an instance I feel confident that [the Organisation], being a highly disciplined unit … would censure erring cadres and co-operate with law enforcement authorities.
This Tribunal notes that the decision to be reached by the Refugee Review Tribunal is based on an objective assessment of the evidence and information available to it. This Tribunal also notes that a person may genuinely hold a view that is not objectively sustainable. Accordingly, while the Refugee Review Tribunal made findings of fact adverse to the visa applicant, including as to his credibility within the statutory framework it is required to apply under the Act, this Tribunal must decide on the facts before it as to the visa applicant's credibility for a different purpose under the Act. This Tribunal rejects the respondent's submission that it is bound to adopt the findings of credibility made of the visa applicant by the Refugee Review Tribunal.
Nevertheless, the Refugee Review Tribunal found that the visa applicant would encounter hardship and discrimination of some degree in Lebanon, finding as follows:
… Palestinians are discriminated against in Lebanon: their right to work and to hold land is restricted; full civic status, including medical benefits, is suspended; they face in many cases varying degrees of antagonism from other Lebanese who regard them an [sic] interlopers. The United States State Department survey, Country Report on Human Rights Practices, 1997 notes that Palestinian incomes have dropped with the closing of the Palestine Liberation Organisation's offices in Lebanon which used to employ as much as half the Palestinian workforce in that country. The Lebanon Report (by Ziad Majed, 1995, v.6, n.6, CX8940) notes that "life in the (Palestinian) camps is unenviable and uncertain .. there is also a growing fear among refugees that their camps will be reduced in size, if not removed altogether". The US State Department report notes that drug addiction and crime are increasing in the camps.
Like other aliens, the Palestinians' choice of work is restricted. However they are entitled to work permits and they have freedom of movement (see: Report from the Fact-Finding Mission to Lebanon, 1-8 May, 1998, s.4: B, F, published by the Danish Refugee Council and the Danish Immigration Service, October 1998, RRT Library).
…
A further issue on the aspect of whether the visa applicant had formed a pre-planned decision to apply for a protection visa upon arrival in Australia relates to an article written by a friend of the applicant (a Ms Sarah Stephen), part of which article was stated to be for publication. A copy of the article made available to the Tribunal is dated 7 April 2001. Ms Stephen did not give oral evidence to the Tribunal. Part of her article is expressed in the first person as if the visa applicant was outlining his circumstances. It includes the following:
…
I planned to apply for refugee status once I got to Australia, because I thought I would have a better chance if I could appeal directly to the Australian government.
I arrived in Sydney on June 3, 1998. Within 6 weeks, I submitted an application for refugee status to the Department of Immigration and Multicultural Affairs (DIMA) in Sydney. I was told that my student visa would cancel, and I would be issued with a bridging visa while my application was being assessed. Within 2 months, DIMA rejected my application on the basis that I could live in Lebanon. My lawyer, who I had been assigned through Legal Aid, lodged an appeal with the Refugee Review Tribunal, who took nearly 12 months to determine my case. On November 3, 1999 the Tribunal decided that I was not entitled to a protection visa, and affirmed DIMA's decision. I took my appeal to the highest level, to be reviewed by the minister, Philip Ruddock. I was granted a bridging visa which was valid until March 9, 2000.

The visa applicant in his oral evidence to the Tribunal denied that he said this to Ms Stephen.

The final issue which the Tribunal found it necessary to consider in assessing the visa applicant's credibility relates to the interview that he had with Mr Davis, on 27 June 2001 concerning the application for a spouse visa. The interview was conducted with an interpreter where that was found to be necessary at the Australian Embassy in Beirut. The visa applicant complained that he was not told about the nature of the interview in advance; was not asked to bring any documents (e.g. references) to the interview; was denied permission to have his wife present during the interview; the interview was not taped; that Mr Davis tried to distort what the visa applicant said in the interview; that the questions asked were not clear; that the visa applicant felt intimidated by Mr Davis's approach, and that Mr Davis, in the opinion of the visa applicant, had made up his mind to deny the visa prior to the commencement of the interview. Mr Davis, in a statement of reasons prepared immediately after the interview (as he was going on leave the next day) canvassed a number of issues connected with the application, including a review of the Refugee Review Tribunal's reasons, before concluding that the visa applicant was not a person of good character. Included in the material is the following:
…
I asked [the visa applicant] … to explain his original purpose in applying for a student visa to study to Australia. He began by telling me he "went to Australia for protection". He intended to "stay in Australia safely". He did not intend to "return to Lebanon" because Lebanon was not democratic and could not guarantee his safety. He told me he would have been happy to go to any other country, eg Canada or Europe. However, he subsequently changed his approach, suggesting h had not intended returning to Lebanon until the Lebanese Government could protect him. When I noted the change in his story he claimed that, "things can change afterwards:.
When I asked [the visa applicant] about why he submitted refugee claims he told me "friends" had indicated to him that he should do so. When he subsequently married, Ms Sonia Demezza of the Refugee Advice and Casework Service, allegedly told him marriage to an Australian citizen would "help" his case. The applicant denied this had anything to do with his motivation for marrying the sponsor and I have no reason not to believe him on this point.

The visa applicant claimed it was at this interview, for the first the time, that he appreciated the significance of "character" as a relevant factor in determining his visa application.

Many witnesses were asked to attest to the visa applicant's integrity. Some of those witnesses based their assessments not on an objective assessment of the visa applicant's character, but on their knowledge of the applicant and the high standing that her family are held in Perth. Some of the referees had never met or had any contact with the visa applicant. The test which the Tribunal must apply is that set out by Lee J in Irving v Minister for Immigration, Local and Government and Ethnic Affairs (1996) 139 ALR 84 at 94 where His Honour stated the words
… "good character" should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an object of assessment apt to be proved as a fact while the latter is a review of subjective public opinion …

While what other people say of him may be relevant, it was evident in this case that most of those giving evidence (leaving aside the applicant and her parents) were unaware of the visa applicant's history with the Department of Immigration and Multicultural Affairs ("the Department") at the time they gave their references. It seems many of the references were given as the result of the circulation of a paper prepared and circulated to the proposed referees (exhibit E) by the applicant at the time she requested their references. It is fair to describe exhibit E as a "self-serving document" which is prepared from the subjective point of view of the visa applicant's circumstances as perceived by the applicant. Nevertheless, in as far as the witnesses who had had contact with the visa applicant commented on their perception of his honesty and integrity, the Tribunal has noted their comments.
Is the Visa Applicant a Person not of Good Character?

A finding that a person is not of good character, involving as it does a criticism of a person's integrity, should only be arrived at only after the most earnest and critical consideration of the evidence.
The Tribunal accepts that the visa applicant holds a genuine belief as to the circumstances outlined in his affidavit of 8 August 1998. It was submitted on behalf of the respondent that the visa applicant's family must have been successful merchants in that the visa applicant's father was able to support the visa applicant with sufficient money to satisfy the Australian immigration authorities that the visa applicant could sustain himself while studying in Australia, by providing money for fees, fares etc. However the weight of the evidence, as found by the Refugee Review Tribunal, favours that displaced Palestinians living in Lebanon have suffered, and continue to be likely to suffer indefinitely, some discrimination both in terms of the income which they could earn and restrictions as to where they are required to live. Against that background the Tribunal would not be satisfied to conclude that the visa applicant is not a person of good character if he genuinely albeit mistakenly believes he is the subject of adverse attention by the Organisation or as a result of individuals within the Organisation having some sort of vendetta in relation to him as the result of his stated pacifist views.
However, the combined evidence of Ms Hammad, Mr Amhez and Mr Davis, which the Tribunal accepts, the fact of the visa applicant applying for a protection visa within such a short time of his arrival in Australia (and without there being any apparent adverse change to circumstances in Lebanon in the intervening seven weeks) and the quote from Ms Stephen's article, result in the visa applicant's explanation of contextual confusion in the case of the questions asked by Australian Embassy officials in Lebanon and the denial of the truth of that part of Ms Stephen's article quoted earlier in these reasons, as being highly unlikely. Other than the evidence of the visa applicant, the evidence is overwhelmingly consistent and leaves the Tribunal satisfied that the visa applicant misled the Australian Embassy officials in seeking the grant of a student visa when in fact it was his intention to use that visa as a means of entering Australia not for purposes of undertaking study but rather for purposes of, as he perceived it, enhancing his chances of obtaining a protection visa. The Tribunal rejects the submissions made on behalf of the visa applicant, but the nature of the evidence of Ms Hammad and Mr Amhez was such that it was too general in character to be relied on to reach a conclusion that the visa applicant was asked about his political or refugee problems in Lebanon. The Tribunal also rejects that Mr Davis was other than fair to the visa applicant when he interviewed the visa applicant on 27 June 2001. The Tribunal accepts that Mr Davis was putting to the visa applicant in that interview the issues in relation to which findings had been made by the Refugee Review Tribunal and/or the Department concerning the visa applicant's earlier intentions when securing a student visa in order to allow the visa applicant the opportunity to refute those assertions. The Tribunal rejects the visa applicant's assertions that Mr Davis was unfair and intimidating in the interview or that he had made up his mind as to the outcome before the interview commenced. While the visa applicant's combined genuine concern for peace and fear for his safety provide an explanation for his conduct, that explanation does not excuse the misleading of the Australian immigration authorities. As the result, the Tribunal is satisfied that he is a person not of good character.
Factors in the Exercise of the Discretion
There are a number of factors to be taken into account when considering the exercise of the general discretion provided for in section 501 of the Act. One is, as the respondent submits, the Tribunal's finding that the visa applicant is not a person of good character. That, however, like any one of the other factors, is not a determinative factor. As the Direction properly provides, the interests of the visa applicant, the applicant and her family are to be taken into account. So too must any benefits, if any, which may flow to the Australian community from the visa applicant being granted a visa. No one factor, including any one of the primary factors, is necessarily determinative. Rather, the various factors must be weighed in determining the way in which the discretion should be exercised in the best interests of the Australian community.
Ministerial Direction Nº 21 provides the following issues to be considered as primary factors:

the protection of the Australian community,
the expectations of members of the Australian community, and
the best interest of any child.

There are no interests of any children to be considered in this application. That aside, it is convenient for the Tribunal to deal with each of the other primary factors before considering them in combination and before considering other matters which may be taken into account in the exercise of the general discretion to be found in section 501(1) of the Act.
The Protection and Expectation of the Australian Community
The Tribunal accepts that the visa applicant does not have any criminal convictions in Palestine or in Australia. However, the Tribunal does not agree with the submission made on his behalf that the Direction extends to the protection of the Australian community exclusively from those who commit criminal offences. The Tribunal accepts that the reference in paragraph 2.6 of the Direction to immigration matters in any event refers to breaches of section 234(1) of the Act. While not a finding for purposes of any criminal law charge, the Tribunal is satisfied, for the reasons stated earlier herein, that the visa applicant has made misleading statements in connection with his obtaining an entry visa to Australia. The time and resources of the Australian immigration officials, tribunals and, in this case, the Minister are wasted in dealing with the consequences of the visa applicant's actions. His conduct, in the terms of clause 2.6(c) of the Direction, is to be regarded as "very serious".
The Tribunal accepts that the visa applicant has pacifist views. As such, it is highly unlikely that he will commit any offence of violence against any other person. The Tribunal also accepts the misleading conduct in which the Tribunal has found the visa applicant engaged arises as the result of his genuine belief in fearing for his physical safety. If he was granted a spouse visa allowing him to remain in Australia, then the Tribunal accepts it would be unlikely that he would engage in any other form of deceptive conduct. While there was a suggestion he (through the applicant) may have been paying for music lessons while living in Perth and that this may be contrary to the terms of his then visa, there was no evidence upon which the Tribunal could satisfactorily arrive at any adverse conclusion to the visa applicant. Otherwise, as will be discussed under the next heading, the witnesses spoke highly of his integrity.
The Tribunal does not accept the respondent's submission that the misconduct of the visa applicant is such that the Australian community would expect him to be refused a visa without considering the surrounding circumstances. The finding by this Tribunal that the visa applicant has a genuine, if mistaken, belief in fearing for his safety if he returns to live in Lebanon provides an explanation although, as stated earlier, not an excuse for his conduct. In the exercise of the discretion, however, the explanation is a factor to be taken into account.
Australia has, as the Direction recognises, an interest in discouraging others in a position similar to the visa applicant from engaging in similar misleading conduct, i.e. in deterring people from misusing the visa system in order to gain entry into Australia. This is a factor adverse to the visa applicant in considering the exercise of the general discretion.
The Exercise of the General Discretion – Secondary Factors
With respect to the exercise of the general discretion, the respondent submitted that the applicant married the visa applicant knowing his Australian visa status was uncertain as the result of him being considered a person not of good character. The respondent submitted that one of the main issues to be considered was that the marriage occurred in order to strengthen the visa applicant's chances of obtaining a visa. For the reasons earlier stated, the Tribunal draws no adverse conclusion from the fact of the marriage, and is satisfied that it is a genuine marriage.
The marriage of an Australian citizen to a non-citizen and the desire of the couple to live together in Australia is a relatively strong factor to be considered. Once a marriage between a citizen and a non-citizen is found to be genuine, then it is clear that a finding against the allowing of the non-citizen to live with the citizen in Australia, when the citizen is desirous of doing so, may stand to threaten the stability of the marriage. The Tribunal must also consider that the couple may, in the ordinary course of events, be expected to have children.
The respondent submits those children may be registered as Australian citizens and may be educated in Australia and ultimately remain living in Australia. However, they would do so only in their father's absence. It is clearly desirable that children be brought up in an environment consisting of both the father and the mother. The Tribunal is satisfied that this is more difficult to achieve and at a considerably higher cost than if the family could live together in Australia.
It is clear from the findings of the Refugee Review Tribunal, which this Tribunal accepts, that the visa applicant would continue to be discriminated against if he remained in Lebanon. That discrimination would affect not only the visa applicant but would be likely to affect his wife and his children. That discrimination, as found by the Refugee Review Tribunal, also relates to the wages which the visa applicant could earn in Lebanon. This would adversely affect his ability to support his children in education whether those children lived in Lebanon or Australia. It may also adversely affect the applicant's ability to return to Australia to see her parents, extended family and friends through lack of funds. While it was suggested that in relation to the latter aspect, the applicant's parents may be able to afford to pay for such excursions or afford to visit the applicant and her family in Lebanon, the Tribunal accepts the applicant's mother and father's evidence that their financial means are not unlimited. In any event, age and other factors may make international travel undesirable or impossible for one or both of them to undertake and their financial situation may change in the future so that they are unable to afford to pay for the applicant (and any children) to return for regular visits to Australia.
The referees listed the following observations of the visa applicant's broad personal qualities, skills and talent:
(I) Musical (in particular Arabic singing):
Ms Sarah Cleary (who also mentioned the visa applicant as playing the drums), Ms Jill Morgan (former Director of KULCHA, the only multicultural arts organisation in Western Australia, who additionally mentioned the visa applicant as auditioning for a concert and described him as "… willing promoted cultural understanding and awareness" and "encouraged artistic skill sharing and development of musical performance with Perth's Arabic speaking community"), Ms Barbara Parkes, Ms Gaye Maley (who sang in a choir with the visa applicant who taught the choir a Palestinian song), Ms Kate Nokes, Mr Ruben Savoulian, Ms Elizabeth Harris, Mr John McGill, Mrs Dorothy Parker, Dr Jacquelin Clee (who also mentioned the visa applicant as a composer) and Mr Andrew Jamieson (who was, with the visa applicant, organising an Arabic-based ensemble), and Mr Fernando Ferrante.
(ii) Community Involvement
As well as his involvement with music and the promotion of cross-cultural musical understanding, the following mentioned the visa applicant's involvement in other community activities:
(a)Ms Michelle Hovane; Mr Jamieson (who mentioned the visa applicant as participating in a community tree planting project at Booejeembara Park, Fremantle); Mr McGill commented, "he works hard for his immediate community and also mixes well with the wider community");
(b)the principal of the visa applicant's high school in Saida, Lebanon commented of the visa applicant, that he "… made many contributions to the school through his membership in the cultural and social clubs";
(c)Ms Carol Nye, from Auscare, commented that the visa applicant had voluntarily participated in talks concerning refugees to high school students.
(iii) Other
It was a constant theme of those of the referees who had met and had contact with the visa applicant that he:

was trustworthy, honest and loyal;
was intelligent (his mathematics teacher in Lebanon described him "as one of the excellent students in mathematics that I taught" and after his entry to Australia he attended the Australian Centre for Languages where he was described as having worked "conscientiously" and as being a "capable student");
stood to enhance Australia's multicultural aspects (not only through his musical talent but also by his other skills);
(a)Ms Parkes, Mr Savoulian and Ms Harris commented on the visa applicant's Arabic culinary skills;
(b)was a hardworking (Dr Catherine Edyvain who had the applicant and the visa applicant "baby sit" her house stated, "whilst in the house [the visa applicant] was a keen gardener, painter, plaster, carpenter, who kept himself very busy helping others");
Others also expressed the view that the visa applicant would be a dedicated worker, e.g. Mr Mochekoe Rametse stated, "the [visa applicant] is capable of independent living without reliance on government assistance. He is a hard worker with a tireless commitment to seeing through the task at hand;
(c)was generous and had the ability to enthuse others but did not impose on them (e.g. Ms Cleary mentioned his encouragement to team mates when playing soccer; Dr Jennifer Cramer commented, "he also has an exceptional capacity to inspire others to develop their confidence and abilities"; Mr Savoulian commented in the context of the visa applicant's financial difficulties (the visa applicant being prohibited from working under the terms of his bridging visa) by stating, "… he never imposed on me or any of his friends".

The applicant's parents both gave oral evidence also with respect to their son-in-law. While the Tribunal appreciates they have a direct interest in the outcome of these proceedings the Tribunal is, nevertheless, satisfied that they gave their evidence honestly and in accordance with the high standards which they have adopted and which guide them. Both were satisfied as to the integrity and honesty of the visa applicant and supportive of him being granted a visa. The applicant's father, a highly respected professor, offered to support the visa applicant financially while he completes his tertiary education in Australia and ultimately become an Australian citizen.
The Exercise of the Discretion

There is no mathematical or other formula which can be used in the exercise of the general discretion to be found in section 501 of the Act. The overriding consideration is to do what is in the best interests of the Australian community.
While the visa applicant's misleading conduct resulted in him gaining entry into Australia, the reasons, as found earlier herein, provide an explanation for his actions. The Tribunal is satisfied that he does not present any threat to any member of the Australian community or to the community generally. The Tribunal is also satisfied that he is an intelligent man, as testified by the references from his teachers in Lebanon. He is capable, as the applicant's father obviously also believes (and the Tribunal takes into account that the applicant's father has been involved in the assessment of overseas student suitability to complete Australian university tertiary qualifications), of successfully completing a university education in Australia. As his activities indicate since he has been in Australia, he is able to make a positive contribution in the promotion of, in particular, Arabic music in Australia. He also has other favourable qualities, including his involvement in community activities which would suggest that he would be a worthwhile Australian citizen.
While the Tribunal accepts the visa applicant's marriage to the applicant is genuine, the Tribunal also is satisfied that the applicant entered the marriage knowing of the visa applicant's uncertain immigration status. That latter aspect, while it must be taken into account, is not, as has been stated earlier, necessarily determinative. In assessing this aspect the Tribunal is not looking to punish either the visa applicant or the applicant for taking that risk. The Tribunal is satisfied that greater emphasis should be put on the desire of the applicant, an Australian citizen, to live with her husband, a non-citizen, in Australia where in the ordinary course of events they would anticipate bringing up a family. It is clear that the applicant has the strong support of her extended family and a large network of friends. She is readily able to obtain employment in Australia, whereas the situation as to her obtaining employment in Lebanon is uncertain. The applicant would more likely than not be placed at a disadvantage if the visa applicant is refused a visa and the applicant is forced to live with him in Lebanon on a permanent basis. The visa applicant would continue to suffer the disadvantages that displaced Palestinians continue to suffer in Lebanon. The visa applicant, too, would be advantaged by being able to live in Australia with the applicant.
Weighing those factors which mitigate against the visa applicant being granted a visa in spite of the Tribunal's finding that he is not a person of a good character against those factors which are favourable to him and bearing in mind the disadvantages which would flow to the applicant (and her family and friends) from the refusal of the grant of a visa to the visa applicant, the Tribunal is satisfied that the general discretion ought be exercised in the visa applicant's favour.
Decision
The Tribunal decides that the preferred decision is that the visa applicant should be granted a spouse visa even although he is unable to satisfy the Tribunal that he is a person who passes the character test provided for in section 501 of the Act. Accordingly, the decision under review is set aside and a decision substituted that the spouse visa ought not be refused to the visa applicant, even although he does not satisfy the Tribunal that he is a person who passes the character test.
I certify that the forty-four [44] preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President G.L. McDonald
(sgd)       Catherine Thomas
              Clerk
Date of Hearing:  29-30 October 2001, 12 December 2001
Date of Decision:  9 May 2002
Solicitor for the Applicant:           Mr C. Narayanan, CGN Legal
Counsel for the Applicant:           Mr M. Ritter
Solicitor for the Respondent:        Australian Government Solicitor