Yacoub and Minister for Immigration and Multicultural Affairs
[2001] AATA 958
•22 November 2001
DECISION AND REASONS FOR DECISION [2001] AATA 958
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/541
GENERAL ADMINISTRATIVE DIVISION )
Re Suzie Yacoub
Applicant
And Minister for Immigration and Multicultural Affairs
Respondent
DECISION
Tribunal Mr R P Handley, Deputy President
Date22 November 2001
PlaceSydney
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that Najib Yacoub passes the "character test" under s 501(1) of the Migration Act 1958.
..............................................
R P Handley
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 and submission for ministerial interventions – where Visa Applicant relied on advice of migration agent in completing application form and submission – character test passed
Exercise of the discretion – balancing of primary and other considerations – protection of Australian community – seriousness and nature of the conduct – general deterrent effect of refusal of grant of visa - expectations of the Australian community – genuineness of marriage to an Australian citizen- degree of hardship to Visa Applicant's wife
Migration Act 1958: ss 417, 499(1), 499(2), 499(2A), 501(1), 501(6)(c)(ii)
Migration Regulations 1994: Schedule 2, clause 309.225; Schedule 4, clause 4001
Ministerial Direction No. 21 – Visa Refusal and Cancellation under s 501
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 69 FCR 422
Re Luong and Minister for Immigration and Multicultural Affairs [1999] AATA 625
Re Yusuf and Minister for Immigration and Multicultural Affairs [2000] AATA 792
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
REASONS FOR DECISION
22 November 2001 R P Handley
This is an application by Suzie Yacoub ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Respondent") made on 30 March 2001 to refuse the grant of sub-class 309 spouse (provisional) visa to the Applicant's spouse, Najib Yacoub ("the Visa Applicant").
At the hearing, the Applicant was represented by Michael Chahoud, Solicitor, and the Respondent was represented by Zac Chami, 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 and Elias Gebrael. The Visa Applicant gave evidence by telephone.
BACKGROUND
The Applicant, Suzie Yacoub (referred to hereafter by her maiden name "Suzie Katrib" to avoid confusion), was born in Australia on 31 July 1979 and is aged 22. The Visa Applicant, Mr Yacoub was born in Lebanon on 6 November 1971 and is aged 30. He arrived in Australia on 20 January 1977 holding a visitor's visa valid for three months. On 17 April 1997, Mr Yacoub lodged an application for a protection visa which was refused by a delegate of the Respondent on 26 April 1997. On 19 May 1997, Mr Yacoub sought a review of that decision by the Refugee Review Tribunal ("RRT"), and on 7 April 1998, the RRT affirmed the delegate's decision. On 19 May 1998, Mr Yacoub was granted a Bridging Visa-E valid to 20 July 1998, one of the conditions of which was that Mr Yacoub would not work. By letter dated 30 October 1998, the Minister refused a request made by Sam Issa, Solicitor, on behalf of Mr Yacoub, requesting the Minister's intervention under s 417 of the Migration Act 1958 ("the Act"). On 30 April 1999, the Minister refused a further request to intervene under s 417 of the Act, made by Ms Katrib on 3 December 1998. By letter dated 10 June 1999, Mr Issa notified the Department of Immigration and Multicultural Affairs ("the Department") that Mr Yacoub was a member of the Lie class action. On 23 July 1999, Mr Yacoub was granted a bridging visa in connection with this class action.
Mr Yacoub met Ms Katrib in February 1997 about a month after he arrived in Australia. In late 1999, they purchased a property together at Guildford for $190,000.00. They were married on 15 October 2000 at St Oliver's Church, Harris Park. On 3 November 2000, Mr Yacoub withdrew from the Lie class action but, on 1 December 2000, joined the Muin class action. On 3 December 2000, Mr Yacoub departed Australia for Lebanon. On 27 November 2000, Ms Katrib lodged an application to sponsor the migration of Mr Yacoub to Australia and, on 26 December 2000, Mr Yacoub lodged an application to migrate to Australia at the Australian Embassy in Beirut. Mr Yacoub was interviewed by the Principal Migration Officer at the Embassy in Beirut, Allan Davis, on 29 March 2001, and on 30 March 2001, Mr Davis, acting as the delegate of the Respondent, decided to refuse the grant of a spouse visa to Mr Yacoub. On 24 April 2001, Mr Katrib lodged an application for a review of this decision by the Tribunal.
RELEVANT LAW AND POLICYUnder 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 satisfied the Minister that the applicant passes the character test; or
(d) the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) "does not empower the Minister to give directions that would be inconsistent with this Act or the regulations".
On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No. 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it "provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501" of the Act. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
The issue for the Tribunal to determine in this case is, therefore, whether Mr Yacoub is not of good character having regard to his past and present general conduct, so as to be precluded from the grant of a sub-class 309 visa. If the Tribunal decides he is not of good character, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.
ORAL EVIDENCE
Suzie Katrib (the Applicant)Ms Katrib confirmed the truth of her statutory declaration dated 20 July 2001 (A3). She was born and educated in Australia, leaving school having obtained the School Certificate on her completion of Year 10 at the end of 1995. Her parents are of Lebanese background and Ms Katrib speaks Arabic. She worked as clerical assistant in a doctor's surgery for approximately 18 months and then obtained a position as a sales assistant at Trend Shoes at Parramatta where she has worked since August 1997. During her first year at Trend Shoes, Ms Katrib completed a retail course to assist her in her work.
Ms Katrib said she first met Mr Yacoub at a youth function in Granville in February 1997, about a month after he first arrived in Australia. They started going out seriously about three months later in late April/early May 1997, and decided to buy a house together about October 1999. They became engaged six months before the wedding. When they first started going out together, Ms Katrib was not aware that Mr Yacoub had made an application for a protection visa. She was aware that he used to talk to his friends about the situation in Lebanon but she did not take much interest in this because she did not understand what having been a member of the Lebanese Forces meant. She knows Mr Yacoub spoke to his parents on the phone and they and his friends advised him not to return to Lebanon. Ms Katrib could not recall Mr Yacoub's protection visa application being refused or whether he applied to the RRT for a review of this decision, nor could she recall a letter to the Minister, signed by her, and dated 3 December 1998. When she was shown this letter, at the hearing, she said the letter had been drafted by her husband's solicitor, Sam Issa. However, she did recall her husband having reached a point of desperation, when, by letter dated 30 April 1999, the Minister notified Mr Yacoub of his refusal to intervene.
Ms Katrib said that it was after Mr Yacoub received notification of the Minister's refusal to intervene in response to her letter of 3 December 1998, that Mr Yacoub asked her to marry him. She refused at that time because she was young and did not feel ready for marriage. She wanted to be sure about it and not rush in to marriage. Ms Katrib said this was her first serious relationship and, unlike the other men she had known, she found Mr Yacoub to be honest, loving and trusting. Their relationship has developed into one of being best friends, as well as being husband and wife. Mr Yacoub has never acted violently or shown disrespect. It was not until about April 2000, six months before they were married, that Ms Katrib felt sure that this was the right choice for her. Her parents had also, at first, been concerned about her getting married to a person in Mr Yacoub's position. However, they are now very supportive, as are her sister and brother-in-law. After she agreed to marry Mr Yacoub, they set about making the arrangements for the wedding. They were married at St. Oliver's Church at Harris Park and had a reception at the Grand Westella at Lidcombe for 380 guests. The cost of the reception was $21,500.00 (A2) which was paid for from money given by family members, with the balance being paid by her father. After the wedding, they spent one night at Brighton and then went to Surfers Paradise for five days.
Ms Katrib said she and her husband bought the house at Guildford approximately one year before they were married. She paid the deposit out of her savings and they borrowed the balance from the Westpac Bank. Ms Katrib paid the mortgage repayments from her salary. Because Mr Yacoub was not working, he only contributed very occasionally when he had some money, which Ms Katrib thinks was given to him by his sister. Currently, Ms Katrib is making mortgage repayments of $500 per fortnight. Her take home pay is approximately $380 per week and, thus, with her other expenses, she has not been able to cope financially. She has often had to ask her family for help.
Ms Katrib said that, to her knowledge, Mr Yacoub had not worked while he was in Australia. After they were married, when she went to work in the morning, he would do the washing up and any cleaning necessary around the house and perhaps look at some of the books on learning English which Ms Katrib obtained for him. Then he might go and visit his friends at the convenience store. She would sometimes help her husband with his English books when she got home from work. She said his English improved a little.
Ms Katrib first went to Lebanon with her mother and brother for three months when she was aged six. Since then, she has only visited Lebanon on one occasion which was when she went for five weeks to see her husband, returning last Sunday. Ms Katrib said she had a fantastic time with her husband and did not want to leave him but she would never consider living in Lebanon. The lifestyle there is totally different. Ms Katrib said this was her first trip overseas since leaving school. Since she has begun work, she has only ever had one other holiday - four days in Port Macquarie with some friends. Where she and her husband were staying in Lebanon, the water and electricity kept cutting out. Then she caught the flu. Essentially, the only thing that kept her there was her husband. Ms Katrib said that Australia is her home. She has a lot of friends here and friendships built up over a number of years. All her immediate family are in Australia. If the Tribunal decides to affirm the Minister's decision, she will do everything in her power to get her husband to Australia, but she will not go to Lebanon to live.
Ms Katrib said when her husband left Australia on 3 December 2000 after they had been married for seven weeks, she realised she could not live without him. His absence has affected her physically and mentally. She phones him at least five times a week. She has had counselling from a psychologist, Onsy Mattar, whom she saw on three occasions for about 30 minutes. She found these sessions helped her to cope with the absence of her husband and to keep calm and relaxed until he returns. Ms Katrib said she has also experienced a medical problem for which she consulted a doctor at Auburn. There has been progress in her condition but some further improvement is required for the condition to be cured permanently. Ms Katrib said her husband has been very understanding about the problem and the doctor has said her husband's presence is likely to be beneficial for her. She will continue to see the doctor.
Ms Katrib was very shocked when her husband's application to migrate to Australia was rejected. She thought he would be able to return home to Lebanon, lodge his application, and then return to Australia. After the rejection, she cried every night. Ms Katrib said she only went with her husband to see his solicitor, Sam Issa, on about two occasions when, most of the time, she would be listening and not saying anything. The conversation tended to be half in English and half in Arabic. She did not discuss anything with Mr Issa when she was present and did not otherwise discuss the matter with her husband. He assured her that Mr Issa had everything in hand. She noted that her husband had returned to Lebanon voluntarily, in order to lodge his application for migration.
Najib Yacoub (the Visa Applicant)Mr Yacoub said he was a member of the Lebanese Forces from 1988 until 1991, when it became clear to him that the Lebanese Forces were weakening. They were ultimately disbanded in March 1994. He has no criminal record. After leaving the Lebanese Forces, he went to live in his home area in the north of the country. He was detained twice by the Syrian authorities, in 1992 and early 1993. On each occasion, he was detained for two to three hours and was abused and beaten up. He was using his brother's "ID" and when he was stopped at a checkpoint, he was detained and asked about his brother, i.e about himself. He was beaten up so that he would go home and show his brother, ie himself, what they thought of him. Mr Yacoub said it is particularly since the Lebanese Forces have been banned, that he has become fearful. He still feels afraid and keeps away from cities where he is likely to come into contact with the Syrian authorities.
Mr Yacoub acknowledged that it was only on the fifth attempt that he was successful in obtaining a tourist visa to visit Australia. He agreed that he had signed an undertaking in Arabic to the effect that if granted a visa, he would depart Australia by the due date. Mr Yacoub said he came to Australia to escape - to get away from the situation in Lebanon. After Mr Yacoub applied for the visa, probably a few days before Christmas 1996, he met Sam Issa, who was holidaying in Lebanon. Mr Issa told Mr Yacoub about the possibility of making an application for permanent residence and suggested that Mr Yacoub consult him on his arrival in Australia. Mr Yacoub was granted a visa on 14 January 1997 and arrived in Australia on 20 January 1997. After arriving in Australia, Mr Yacoub was advised by his family in Lebanon and by Mr Issa, not to return. He trusted Mr Issa to make an application on his behalf. When Mr Yacoub signed the application, he did not know what of sort application he was making. He could only read English very slowly. Mr Issa told him that he would take care of things and everything would be "OK". Mr Yacoub said his application for a protection visa had been completed by Mr Issa. Mr Yacoub denied that he had been detained on four occasions as stated in the application. He said that he had only been detained on two occasions and had not been detained for extended periods as stated in the application form. What had been included in the application had been composed by Mr Issa and not by him.
When Mr Yacoub's application for a refugee visa was refused, Mr Issa advised him on his seeking a review by the RRT. Mr Yacoub did not attend the RRT hearing on Mr Issa's advice that it would make no difference whether he attended or not. When Mr Issa told him that his appeal had been lost, he advised him that, nevertheless, things would be "OK".
Mr Yacoub was asked about the two requests for ministerial intervention. He had no recollection of these although he was aware that he had joined class actions that enabled him to obtain bridging visas to remain in Australia. In particular, he was asked about the first request for ministerial intervention made by Mr Issa on his behalf by letter dated 11 May 1998. In this letter, reference is made to his being accused by both the Syrians and the Lebanese authorities of continuing to support the Lebanese Forces and engage in anti-government activity including distributing pamphlets in North Lebanon. Mr Yacoub said this was untrue. He had never distributed pamphlets and his fear was of the Syrian authorities and not the Lebanese authorities. Mr Yacoub was also asked about his interview with Allan Davis at the Australian Embassy in Beirut on 29 March 2001. Mr Davis records in his summary of the interview (T36), that he asked Mr Yacoub to cite actual cases of threats against him. Mr Yacoub told the Tribunal that he did tell Mr Davis about his being detained and abused by the Syrian Forces.
Mr Yacoub said he had first met Ms Katrib in Granville about a month after his arriving in Australia. He did not work while in Australia because he did not have a tax file number. He would often keep himself occupied during the day by going to visit Elias Gebrael, his distant cousin, who runs a convenience store. He would sometimes help Mr Gebrael around the store but was not paid for this. After he and Ms Katrib were married, he would stay at home when his wife went to work. He would tidy up and do the cleaning and then perhaps go out to see some friends.
Mr Yacoub said he very much enjoyed the five weeks that his wife has recently spent with him in Lebanon. He was crying all the way home after she left from the airport: "she is suffering because of me and I can't do anything about it".
Elias Gebrael
Mr Gebrael had provided a statement dated 5 July 2001 (A1). He said he has known Mr Yacoub for the past 13 years, from when they both lived in Lebanon. Mr Gebrael and his wife have been joint owners of a convenience store for the past four years. When Mr Yacoub was in Sydney, he used to come to see Mr Gebrael at the store and they would often sit and chat over a coffee or sometimes a drink. That was mainly at the weekends, although sometimes in the afternoon or evening. Mr Gebrael regards Mr Yacoub as a friend. He has never employed Mr Yacoub, but when Mr Yacoub was at the store, he would help out without being asked if Mr Gebrael was busy. Mr Gebrael said that it is clear from Mr Yacoub's conduct that he is respectful of others; he is a peaceful man whom Mr Gebrael has never known to lose his temper. When Mr Yacoub helped him in the store, he trusted Mr Yacoub with the till. In cross-examination, Mr Gabrael emphasised that Mr Yacoub was not working for him. Mr Yacoub would just come and spend time at the store. Mr Gebrael said that as far as he is aware, Mr Yacoub was not working elsewhere.
SUBMISSIONS
The ApplicantMr Chahoud, for the Applicant, said although Mr Yacoub's previous visa applications and requests for Ministerial intervention had not succeeded, this should not be taken as an indication that Mr Yacoub is not of good character. He said the fact that a person has previously committed criminal offences, does not automatically exclude that person from passing the "character test".
Mr Chahoud said that there is no allegation that Mr Yacoub has a criminal record. However, the Respondent relies on the conduct of Mr Yacoub in making earlier visa applications to justify its contention that Mr Yacoub does not pass the "character test". Mr Chahoud referred the Tribunal to discussion of the meaning of "good character" in Re Yusuf and Minister for Immigration and Multicultural Affairs [2000] AATA 792 where Deputy President Chappell referred to Justice Lee's description in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431:
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 objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion.
Mr Chahoud contended that Mr Yacoub had complied with his visa conditions. He was professionally advised that he had a legitimate case for the grant of a protection visa and the procedure followed in relation to that application was a proper one. However, Mr Yacoub accepts that he should have been more careful about trusting that adviser and not relying solely on being told that everything was going well and that he need not worry about it. Mr Yacoub contends that he did not knowingly and purposely provide false and misleading information. He relied on Mr Issa to complete the forms on his behalf and, obviously, Mr Issa embellished the accounts of Mr Yacoub's harassment in Lebanon. Mr Yacoub placed his trust in a professional adviser who should have been knowledgeable about Australia's immigration laws and who was fluent in English, which Mr Yacoub could not himself speak. Mr Chahoud noted that Mr Yacoub had left the country voluntarily.
Mr Chahoud said, alternatively, if the Tribunal did not find Mr Yacoub to be of good character the Tribunal should exercise the discretion in s 501(1) to grant Mr Yacoub a visa. With regard to Part 2 of Direction No. 21, Mr Chahoud submitted that the Tribunal should pay particular regard to the "Other Considerations". Mr Chahoud said the marriage between Mr Yacoub and Ms Katrib is a genuine one. He noted that Ms Katrib did not at first accept Mr Yacoub's proposal of marriage, but allowed herself time - approximately a year – to be sure that she was making the right decision. The impact of the refusal of a visa to Mr Yacoub on Ms Katrib has been significant. She has suffered emotional and financial hardship. She has a physical problem which requires the support of her husband. Ms Katrib has said she cannot live in Lebanon. She was born in Australia, although of Lebanese parents, and has only ever been to Lebanon for two brief holidays. Australia is her home, where her immediate family and friends are, and she would not be able to find a job in Lebanon.
The RespondentMr Chami, for the Respondent, submitted that the evidence pointed to Mr Yacoub lacking "enduring moral qualities". He referred the Tribunal for the guidance to be derived from Direction No. 21 and, in particular, to paragraph 1.9 and the reference to "false or misleading statements". Mr Chami contended that Mr Yacoub's application for a protection visa contains a number of false and misleading statements: Mr Yacoub was harassed by the Syrian authorities rather than, as stated, by the Lebanese authorities; he was detained on two occasions rather than four occasions, as stated; and the reason for his being beaten was that the Syrian authorities, mistaking him for his brother, beat him in order to send a message about their view of him. Mr Chami noted that Mr Yacoub signed a declaration that the information supplied was "complete, correct and up-to-date in every detail" (T6, p55).
Mr Chami noted that Mr Yacoub claimed to have placed his trust in Mr Issa. He referred the Tribunal to Re Luong and Minister for Immigration and Multicultural Affairs [1999] AATA 625 at 18,where Deputy President McDonald stated:
It is not a satisfactory answer for a visa applicant to tell the Tribunal that he "trusted" the [migration agent] to answer the questions accurately. If, as in this case, a visa applicant seeks to rely on a friend, migration agent or any other person to assist in the completion of the form then the visa applicant must take responsibility if the form is not accurately completed.
Mr Chami submitted that, following Luong, it was not satisfactory to excuse a person's conduct by virtue of the fact that they had relied on an agent. Thus, Mr Yacoub could not excuse the false and misleading statements by alleging these were embellishments made by his solicitor.
Mr Chami also noted that the independent country information referred to by the Departmental Delegate (T13, p71) contradicts Mr Yacoub's claims of harassment. This information indicates that since the dissolution of the Lebanese Forces on 23 March 1994, there has been no pursuit and detention of persons simply for being rank and file members of the Lebanese Forces. Mr Chami noted Mr Yacoub told the Principal Migration Officer in Beirut, Allan Davis, that he had not intended returning to Lebanon within the prescribed three months (T 36, p168). Moreover, he told Mr Davis how he had met an immigration lawyer before he left for Australia, who told him about claiming protection. Mr Yacoub liked this idea and decided to remain in Australia and go and see the lawyer to help him with his application. Mr Chami said this indicated a clear abuse by Mr Yacoub of Australia's migration system.
With regard to Mr Yacoub's applications for ministerial intervention under s 417 of the Act, Mr Chami said the submission attached to the request dated 11 May 1998 (T16), contains false information about Mr Yacoub being accused, not only by the Syrians but also by the Lebanese authorities, of continuing to support the Lebanese Forces and engage in anti-government activity including, distributing pamphlets. Mr Yacoub told the Tribunal that this was not correct. Moreover, this submission did not include any reference to detention or beatings.
Mr Chami acknowledged that although Mr Yacoub undertook to comply with the 8503 "no work" condition on his visitor's visa, this did not prevent him from making a protection visa application (T35). However, with regard to Mr Yacoub's claim that he left Australia voluntarily, it should be noted that a sub-class 309 visa application, must, in Mr Yacoub's circumstances, be lodged by the person when outside Australia.
Mr Chami contended that Mr Yacoub's visa applications include a number of false and misleading statements indicating an abuse of the migration system and reflecting poorly on Mr Yacoub's character. He does not, therefore, pass the character test.
Mr Chami submitted that if the Tribunal found that Mr Yacoub does not pass the character test, then it should not exercise the discretion in s 501(1) in his favour. In his Statement of Facts and Contentions, Mr Chami pointed to the primary considerations referred to in Direction No. 21. In particular, he noted the seriousness with which false and misleading statements are regarded in relation to the need to protect the Australian community, and the expectation of the Australian community that untruthful applicants should not be permitted to obtain a benefit by deception. With regard to "Other Considerations", the Respondent accepts that Mr Yacoub and Ms Katrib have a genuine marriage relationship and that hardship will be caused to them by their separation. However, Mr Chami noted that, with the exception of one sister who lives in Australia, Mr Yacoub's seven other siblings still live in Lebanon.
APPLICATION OF THE LAW AND FINDINGSThe first issue for the Tribunal to determine is whether Mr Yacoub passes the "character test" in s 501(1), by virtue of the application of s 501(6)(c)(ii) of the Act, which provides that a person does not pass the character test if, having regard to the person's past and present general conduct, the person is not of good character. The application of the "character test" in s 501(6)(c) is by reference firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at 324, the Full Federal Court said:
The concept of "good character" in s 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short term entry permit may not justify the conclusion that he is "not of good character" within s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
The Tribunal also noted the decision in Yusuf (supra) in which Deputy President Chappell relied on Justice Lee's description of the term "good character" in Irving (supra), specifically the reference to the "enduring moral qualities of a person".
Secondly, the Tribunal must have regard to Part 1 of Direction No. 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, Mr Yacoub does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) not to refuse the grant of a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No. 21 as a guide to the exercise of its discretion.
The Tribunal notes there is no evidence of Mr Yacoub having worked in Australia without permission and that at all times he was in possession of a valid visa. During the hearing, the Tribunal experienced communication difficulties in speaking with Mr Yacoub through an interpreter via a conference telephone. Nevertheless, the Tribunal is satisfied that there is insufficient evidence to indicate that Mr Yacoub's clear intention in coming to Australia was to seek to remain permanently. He told the Tribunal he came to escape - to get away from the situation in Lebanon, without any clear long-term objective. After making his application for a visitor's visa and before leaving Lebanon, he met an Australian solicitor holidaying in Lebanon Mr Issa, who told him that he could lodge an application for permanent residence when he was in Australia. Mr Issa invited Mr Yacoub to consult him when in Sydney. The most that can be said is that Mr Yacoub was aware that he might be able to obtain a visa, after he arrived in Australia, to enable him to remain permanently. The Tribunal accepts that, in seeking to leave Lebanon, Mr Yacoub was motivated by two episodes in which he had been detained and beaten by the Syrian forces in 1992/1993 and by his fear of further harassment.
The principal matters to which the Respondent refers in arguing that Mr Yacoub is not of good character are the false and misleading statements which appear in his protection visa application dated, 11 April 1997 (T6) and in the letter seeking ministerial intervention dated, 11 May 1998 (T16). Mr Yacoub acknowledges that a number of statements made are incorrect. In particular, he stated that his harassment was by the Syrian authorities only and that he was detained and beaten on only two occasions, and did not continue to support the Lebanese Forces and engage in anti-government activity, including the distribution of pamphlets. Mr Yacoub stated that he relied on Sam Issa to complete the application forms for him and to take the other necessary steps to prolong his stay in Australia. Because Mr Yacoub does not speak good English, he was not aware of the wording used by Mr Issa when he answered the questions in the applications form on his behalf; nor was he aware of what was contained in Mr Issa's submission for s 417 intervention. Mr Yacoub stated that he relied on Mr Issa throughout and that Mr Issa continuously assured him that everything was going "OK" and that he should not worry.
Paragraph 1.9 of Part 1 of Direction No. 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of a particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the "character test". Of relevance in the present case is paragraph 1.9(b) which directs the decision-maker to consider:
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 recognises that Mr Yacoub made false and misleading statements in the application form and submission, and, pursuant to Luong (supra), must take responsibility for making such statements. However, in the Tribunal's view, the circumstances in which Mr Yacoub made such statements must be taken into account, namely, that Mr Yacoub relied on the advice of a solicitor and his assistance in completing the application form and submission.
The Tribunal notes the evidence of Ms Katrib and Elias Gebrael who spoke of Mr Yacoub's good character. The Applicant also submitted references from a medical lab officer (A4), the Parish Priest in Mr Yacoub's village (A5), from the Chief of the Municipality of Mr Yacoub's town of Karm El Mohr (A6), and the Mayor of the town (A7), together with references from Ms Katrib's parents (A8), her sister and brother-in-law (A9), her brother and his wife (A10), and the President of the Karm El Mohr Association in Granville (A11), attesting to his good character.
The Tribunal notes, as Mr Chami acknowledged, that Mr Yacoub did not breach the s 805 condition attached to his original visitor's visa when he applied for a protection visa. The Tribunal also notes that while Mr Yacoub left Australia voluntarily on 3 December 2000, it was necessary for him to be outside Australia in order to lodge an application for a sub-class 309 visa.
Taking all these matters into consideration, the Tribunal is not satisfied that Mr Yacoub's past and present general conduct establish that he is not of good character. Whilst undoubtedly he appears to have been foolish in trusting Mr Issa in acting on his behalf in relation to his visa applications, applying the standard in Goldie (supra), the Tribunal is not satisfied that his character is "so deficient as to show it is for the public good to refuse entry". All the other indications are that Mr Yacoub is a person of honesty and integrity, who is a responsible member of the community.
The Tribunal is, therefore, satisfied that Mr Yacoub passes the character test referred to in s 501(1) of the Act. In the alternative, were Mr Yacoub not to pass the character test, then, as noted above, the Tribunal would have regard to Part 2 of Direction No. 21 as a guide to the exercise of its discretion. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community, and
(c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
The third of these primary considerations is not relevant in the present case, there being no child or children involved.
With regard to the protection of the Australian community, paragraph 2.4 states:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community…
Paragraph 2.5 identifies the factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen which include:
(a) the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
Examples of offences which are considered by the Government to be serious include serious crimes against the Migration Act 1958 which, in turn, include "making a false or misleading statement in connection with entry or stay in Australia". Paragraph 2.8 requires decision-makers, when exercising discretion, to take into account any relevant mitigating factors provided by the non-citizen. With regard to paragraph 2.5(b), likelihood that conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, "aims to deter other people from committing the same or a similar offence". Paragraph 2.12 states that the expectations of the Australian Community are that non-citizens should obey Australian laws while in Australia.
There are also "Other Considerations" to which a decision-maker is directed by paragraph 2.17, which states that, where relevant, "it is appropriate that these matters be taken into account, but that generally they be given less individual weight than that given to the primary considerations". These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen's family, business and other ties to the Australian community; genuine marriage to an Australian citizen; the degree of hardship caused to immediate family members in Australia; the family composition of the non-citizen's family both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.
With regard to the primary considerations, the Tribunal's view is that Mr Yacoub did make false or misleading statements in connection with his application for a protection visa, a matter which is regarded as serious by the Australian Community. The Tribunal notes what Mr Yacoub has said by way of mitigation in terms of his having relied on advice and assistance from his solicitor. There is also no evidence of other false or misleading statements and the Tribunal does not consider there is any significant likelihood that the conduct may be repeated. With regard to general deterrence, whilst the Tribunal recognises that people should be deterred from making false or misleading statements for the purpose of obtaining a visa, in the present case, reliance placed on the advice and assistance of a solicitor, tends to obviate the possibility of a deterrent effect.
The second primary consideration is the expectations of the Australian Community. In this regard, the Tribunal notes that Mr Yacoub complied with Australia's immigration laws while he was in Australia, except in relation to the false and misleading statements in connection with his protection visa, and no other breach of those laws has been established in relation to his conduct outside of Australia. The third primary consideration is not relevant in this matter.
Of the "Other Considerations" to which decision-makers are referred, there is no dispute as to the genuineness of Mr Yacoub's and Ms Katrib's relationship and that a refusal of the grant of a visa to Mr Yacoub would cause distress to them both. In particular, the Tribunal finds that there would be significant hardship to Ms Katrib, in relation to her emotional, physical and financial well-being. Ms Katrib is an Australian citizen who was born and has lived all her life in Australia, all of whose immediate family members are here. Although she has recently visited Lebanon for a short holiday, she has made clear that she does not wish to live there. Ms Katrib was aware of Mr Yacoub's not having a visa enabling him to remain permanently in Australia at the time they were married, nevertheless, the Tribunal accepts that she thought that it was merely a matter of formality for Mr Yacoub to obtain such a visa, requiring him to return to Lebanon and submit an application through the proper channels.
In conclusion, a balancing of the primary and other considerations persuades the Tribunal that the discretion in s 501(1) should be exercised in Mr Yacoub's favour.
The decision under review should be set aside and the matter remitted to the Respondent for reconsideration with the direction that Mr Yacoub passes the "character test" under s 501(1) of the Act.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President
Signed: .....................................................................................
AssociateDate of Hearing 17 October 2001
Date of Decision 22 November 2001
Solicitor for the Applicant Mr M Chahoud, Chahoud Kalouche & Associates
Solicitor for the Respondent Mr Z Chami, Clayton Utz Lawyers
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