Zanzoul and Minister for Immigration and Multicultural and Indige Nous Affairs

[2004] AATA 174

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 174

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2003/562

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Martha Zanzoul

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Date20 February 2004

PlaceSydney

Decision The Tribunal affirms the decision under review.

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

Mr RP Handley
  Deputy President 

CATCHWORDS

IMMIGRATION – subclass 309 spouse (permanent) visa – refusal of visa on character grounds – past and present general conduct – examination of the Visa Applicant’s immigration history – examination of the Visa Applicant’s conduct - discretion that the Tribunal may exercise where the Visa Applicant fails the character test – necessity to balance the protection and expectations of the Australian community against the hardship to the Applicant and children – Visa Applicant found to have committed serious breaches of Australia’s immigration laws and showed contempt for Australian law – Applicant found to be complicit in immigration misconduct – Visa Applicant fails the character test – best interests of the children considered – held that protection and expectation of the Australian community outweighs any disadvantages to the children – decision of the Respondent is affirmed.

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

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133

Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608

REASONS FOR DECISION

20 February 2004 Mr RP Handley, Deputy President           

1.      The Visa Applicant, Mr Admad Zanzoul, who is currently residing in Hama, Syria, applied for a subclass 309 spouse (permanent) visa to reside in Australia with his spouse, the Applicant, Martha Zanzoul and their three children.

2.      The Respondent states that Mr Zanzoul entered Australia under a false name, using a false passport; he applied for a protection visa in the false name and made other false and misleading statements; he applied for permanent residency in the false name; he remained in Australia illegally; and he made a second protection visa application without disclosing his previous application and making false and misleading statements.  The Respondent therefore refused Mr Zanzoul’s subclass 309 spouse (permanent) visa on the ground that he failed the character test.  This is the decision to be reviewed by the Tribunal.

Background

3.      Ms Martha Zanzoul was born in Auburn, Australia.  She will be 39 on 26 February 2004 (T p108).  Since leaving Australia on 27 October 2001, she currently resides in Hama, Syria with her husband and their three children (T p416).  However, during that period she has made a number of visits to Australia:  arriving on 16 March 2002 and departing on 23 March 2002; arriving on 29 June 2002 and departing on 6 July 2002; arriving on 13 December 2002 and departing on 25 December 2002 (T pp416-417).   Most recently, she arrived in Australia on 8 December 2003.

4.      Mr Ahmad Zanzoul was born in Hama, Syria on 13 March 1965 and is aged 38.    On 15 July 1994, Mr Zanzoul arrived in Australia purporting to be Janis Nikos Stavros, on a visitor visa permitting a stay of one month.  On 1 August 1994, a further visitor visa was issued permitting a stay until 15 November 1994 (T p54) and, on 10 November 1994, another visitor visa was issued permitting a stay until 15 May 1995 (T p56).  These visas were issued in a Danish passport in the name of Janis Nikos Stavros, born in Limassol, Cyprus on 13 March 1971 (T p53).  

5.      On 15 May 1995, Mr Zanzoul, using the name of Stavros, lodged an application for a protection visa with the then Department of Immigration and Ethnic Affairs (T4 p30).   He stated in the application that the answers to the questions as to why he was seeking protection in Australia “will be provided later on” (T p46).  On 17 May 1995, an officer of the Department informed Mr Stavros that he had applied for a protection visa using the incorrect form (T p58).   On 28 September 1995, Mr Stavros was informed by the Department that the correct application must be received by 16 October 1995 in order to be considered (T p60).  On 1 November 1995, a delegate of the Department informed Mr Stavros that his application had been rejected on the basis that he had not made out his claims for protection (T p62).   

6.      On 24 June 1995, Mr Zanzoul, still using the false name of Janis Stavros, met Ms Zanzoul in a restaurant in Bankstown Square, Sydney (T pp349, 405).  They commenced their relationship on 27 July 1995 (T p349).   On 11 August 1995, Mr Stavros and Ms Zanzoul were married by a civil celebrant at Greenacre in Sydney (T p110).  On 15 April 1996, their first child, a daughter, registered as Yasmine Janis Stavros, was born (T p325).  On 9 July 1996, Mr Zanzoul, using the false name of Stavros, applied for a subclass 820 spouse (residency) visa on the basis of his marriage to Ms Zanzoul (T p71)..  This application contained false information including his name, date of birth, country of birth and family members, and was supported with false documentation.   At the time of lodging his application, Mr Stavros was granted a bridging visa C (T p129)..  On 14 July 1998, his and Ms Zanzoul’s second child, a son, registered in the name of Joseph Janis Stavros, was born (T p327).

7.      On 9 September 1998, a delegate of the then Department of Immigration and Multicultural Affairs refused Mr Stavros’s subclass 820 application on the basis that it was not a valid application because, since entering Australia, he had previously been refused a protection visa (T10 p164).  On 21 October 1998, a decision was also made to cancel Mr Stavros’ bridging visa issued on 9 July 1996 (T pp203-206). 

8.      On 18 September 1998, Mr Zanzoul, still using the false name of Stavros, lodged a further application to remain permanently in Australia assessed as a Family (subclass 806) change in circumstance (residence) visa (T13 p170) which was refused on 18 January 1999 (T16 p208).   On 29 January 1999, Mr Stavros applied for a review of that decision by the Migration Internal Review Office (MIRO).  By letter dated 2 February 1999, MIRO notified Mr Stavros that his application should have been addressed to the Immigration Review Tribunal (IRT).  His application was lodged with the IRT on 7 April 1999 which, on 28 April 1999, informed Mr Stavros that his application had not been accepted as it was lodged out of time (T p226).   On 12 July 1999, Mr Stavros’ and Ms Zanzoul’s third child, a daughter, registered in the name of Susan Stavros, was born (T p329).  On 6 August 1999, Mr Stavros applied for a bridging visa E.  This was granted on the same day subject to a condition that Mr Stavros depart Australia before 6 October 1999 (T p228).  On 5 October 1999, a further bridging visa E was granted requiring departure before 5 November 1999.    On 21 October 1999, a bridging visa E was granted requiring departure before 15 December 1999 and on 13 December 1999 a visa was granted requiring departure before 15 January 2000.   Mr Stavros did not depart Australia as required.

9.      On 13 January 2000, Mr Zanzoul lodged an application for a protection visa application in his true identity, stating “I think I will be locked up in jail and tortured” if he were returned to Syria (T p239).    His then solicitors, Parish Patience, also submitted a Statutory Declaration by Mr Zanzoul stating that he had not previously lodged a protection visa application (T p237).  The application was refused on 13 January 2000.  On 15 March 2000, the Federal Court of Australia made an Order, by consent, that the then Department of Immigration and Multicultural Affairs accepted Mr Zanzoul’s application for a protection visa, lodged on 13 January 2000, was a valid application (T p268).  However on 15 May 2000, Mr Zanzoul withdrew his protection visa application (T p272).

10.     On 26 May 2000, Mr Zanzoul’s solicitors informed the Department that Mr Zanzoul wished to proceed with his subclass 820 spouse (residency) visa application made in the name of Stavros in July 1996 and informing the Department of the incorrect information stated in that application (T32 p274).  By letter dated 3 November 2000, the Department informed Mr Zanzoul’s solicitors that his subclass 820 spouse visa application was invalid (T p277).  By letter dated 5 February 2001, the solicitors informed the Department that Mr Zanzoul had withdrawn his instructions and, consequently, they no longer acted for him (T p278).   On 7 February 2001, Mr Zanzoul was located by the Department and subsequently detained in the Villawood Detention Centre (“Villawood”) (T p288).   

11.     On 12 February 2001, Mr Zanzoul applied for a bridging visa E (T p288). This was subsequently refused on 14 February 2001, on the basis that Mr Zanzoul had failed to abide by the conditions of his previous bridging visas and had failed to provide evidence of his making arrangements to depart Australia or of seeking a review of a decision by the courts (T p289).  This decision was affirmed by the Migration Review Tribunal (“MRT”) on 26 February 2001 (T p306).   On 2 March  2001, Mr Zanzoul lodged another application for a protection visa (T p317) and, on 8 March 2001, the then solicitors acting for Mr Zanzoul applied for Ministerial intervention (T p320).  On 19 March 2001, Mr Zanzoul withdrew his protection visa application (T p332).

12.     On 29 March 2001, Mr Zanzoul lodged another application for a bridging visa E which was refused on 2 April 2001, a decision affirmed by the MRT on 11 April 2001.  On 9 May 2001, Mr Zanzoul lodged a further application for a bridging visa E.  On that day, he was notified that his application was invalid.  On 16 May 2001, Mr Zanzoul lodged another application for a bridging visa E associated with his application for Ministerial intervention.  On 17 May 2001, Mr Zanzoul’s application for Ministerial intervention was refused (T p333) and, on 18 May 2001, his application for a bridging visa was refused, a decision affirmed by the MRT on 31 May 2001.  On 14 June 2001, new birth certificates were issued for each of the three children, re-registering their family names as Zanzoul rather than Stavros (T pp326, 328, 330).

13.     On 12 July 2001, Mr Zanzoul lodged a further application for a bridging visa E which was refused by a delegate on 16 July 2001.  On 26 July 2001, the MRT affirmed this decision and, on 3 September 2001, his newly instructed solicitors, Whitfields Solicitors, applied to the Federal Court for an order of review of the MRT decision.  By letter dated 24 September 2001, Whitfields sought to have Mr Zanzoul’s subclass 820 spouse (residency) visa, lodged in the name of Janis Stavros, determined as a matter of urgency (T52 p337).  On 9 October 2001, Mr Zanzoul lodged another application for a bridging visa E which was refused on 11 October 2001 and, on the same day, he applied to the MRT for a review of that decision.  On 22 October 2001, Whitfields notified the Department of his decision to withdraw his subclass 820 application (T53 p339).   On 23 October 2001, the MRT remitted the decision dated 11 October 2001 to refuse a bridging visa E to the Department for reconsideration.  The Department subsequently issued Mr Zanzoul with a visa subject to Mr Zanzoul’s security in the sum of $5,000.  On 27 October 2001, Mr Zanzoul, accompanied by Ms Zanzoul and their three children, left Australia (T p341).

14.     On 13 May 2002, Mr Zanzoul lodged an application for a subclass 309 spouse (permanent) visa at the Australian Embassy in Beirut.  On 26 November 2002 and 8 January 2003 Mr Zanzoul was interviewed at the Embassy (T p403).   On 8 January 2003, Ms Zanzoul was also interviewed separately.  On 17 February 2003, a Principal Migration Officer at the Australian Embassy wrote to Mr Zanzoul advising him that he was considering refusing his application because of his past and present general conduct and inviting him to comment on that decision (T58 p408).   Mr Zanzoul responded by letter of 18 February 2003 stating “I provided a bogus document but will never do this again.  I have never made false or misleading declaration on an approved form about my character or conduct or both” (T p413).

15. On 25 March 2003, having considered Mr Zanzoul’s submissions, a delegate of the Respondent decided to refuse the grant of a visa to Mr Zanzoul on the ground of his past and present general conduct and having declined to exercise the Respondent’s discretion under s 501(1) of the Migration Act 1958 (“the Act”) (T p6).  On 7 April 2003, Ms Zanzoul lodged an application for a review of this decision by the Tribunal.

16. At the hearing, Ms Zanzoul was represented by Admad Hemmad, Migration Agent, of Anisco Migration Agency, and the Respondent was represented by Elizabeth Warner, Solicitor, of the Australian Government Solicitor’s office. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”). Ms Zanzoul gave evidence in person and Mr Zanzoul gave evidence by conference telephone from Syria.

Relevant Law and Policy

17. Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant ground in the current matter is paragraph (c), as follows:

Having regard to either or both of the following:

…

(ii)       the person’s past and present general conduct;

the person is not of good character; …

18. 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”..

19. 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.

20. The issue for the Tribunal to determine in this case is, therefore, whether Mr Zanzoul is not of good character having regard to his past and present general conduct. If the Tribunal decides he is not of good character, it must decide whether, nevertheless, to exercise the residual discretion under s 501(1) to not refuse the grant of a visa.

Evidence

21.      Ms Zanzoul’s parents migrated to Australia from Greece.  Her father, who was a builder, is now 83.  He has high blood pressure and sore legs.  Her mother is 72.  They met in Australia.  This was her father’s second marriage.  He has a daughter by his first marriage who lives in Greece and, consequently, Ms Zanzoul has a half-sister.   This first marriage ended in divorce after the first wife committed adultery.  Ms Zanzoul said her family are Greek Orthodox and very religious.  Her father has a cousin who lives with her family in Canberra.  Her mother has an uncle who lives at St Marys in Sydney.

22.      Ms Zanzoul has one sister and two brothers, all of whom live in Australia.  Her sister, who is aged 41, lives with her family in Goulburn where she has a business.  She has two children aged 18 and 12.  Ms Zanzoul said her sister is prejudiced against Muslims.  Ms Zanzoul’s two brothers are both younger than her: Paul is aged 35, and George is aged 31.  Paul, who has a tiling business, has two children, aged seven and four.  He and his children’s mother are not married and have not lived together.  The two children are currently living with Paul in the front room of Ms Zanzoul’s parents’ house.  Ms Zanzoul’s mother helps look after the children when they are at home. 

23.      Ms Zanzoul’s youngest brother George suffers from epilepsy and is autistic.  She said his mind is like that of a child and he is cared for at home by their mother.  George gets jealous of the young children in the house and keeps saying he does not want them there.  The day before the hearing on 4 February, George hit Susan, Ms Zanzoul’s younger daughter who is aged four and a half.   Paul has installed locks on the door to the front room where he and his children sleep.  Ms Zanzoul said, after school, she takes the two children who are currently with her in Australia, Susan and Yasmine, who is nearly eight, to the park to keep them away from her parents’ house where they are currently sleeping on the floor in the lounge room.  Living there is very difficult at the moment.  She and the children are “not allowed to make a sound”..  At one time, Paul took his two children and lived with their sister in Goulburn for a year because the situation was so difficult.

24.      Ms Zanzoul said her parents have lived in the same three bedroom house in Homebush for over 30 years.  The house is opposite Homebush Public School where Susan is attending Kindergarten and Yasmine is in Year 3.  Ms Zanzoul attended this school and also later attended Strathfield Girls’ High School which is about 10 minutes walk.

25.      Ms Zanzoul said after leaving school she had a variety of jobs.  She first met Mr Zanzoul in 1995 in a restaurant where she and a girlfriend were having a meal.    Her parents were strict about her boyfriends and he had to visit her parents at home before they could go out together.  Mr Zanzoul had told her that he was from Cyprus.  He spoke Greek to her parents when they first met and they accepted he was a Cypriot.  Ms Zanzoul said, at the time, she was under the impression that Mr Zanzoul was in the process of obtaining permanent residence in Australia.

26.      Ms Zanzoul could not remember when Mr Zanzoul proposed to her but agreed it was not long after they met in June 1995.  When they were married by a civil celebrant on 11 August 1995, her parents were not happy about this.  After the wedding, they rented a flat in Belmore which was where they were living when their first child, Yasmine was born in April 1996.  Her husband had, by this time, established his own tiling business.

27.      Mr Zanzoul said he is from a normal Syrian family.   He has eight sisters and three brothers.  His father’s wages were very limited and Mr Zanzoul did not get much education but left school early to work and help support his family.  At the age of 18, he undertook compulsory National Service in the Army.  Afterwards, he was looking for safety and a better life, so he went to Jordan where he worked for two years and then via Egypt to Greece where he worked for six years.  His trade is that of a tiler which he learned “on the job” after he left school.  There is no formal training for that kind of work in Syria. 

28.      Mr Zanzoul said he had formed the idea of coming to Australia when he was in the Army. His friends applied for visas through the Australian Embassy and were refused, so he decided not to apply using his own passport.  Therefore, when he went to Denmark, he bought a Danish passport in the name of Janis Stavros for US$1000 and travelled via Poland and Thailand to New Zealand.  In Auckland, he applied for and was granted a visitor visa for Australia.  Initially, in cross-examination, Mr Zanzoul said that he did not do anything wrong except enter Australia with a false passport: he did not tell lies in his visa applications.

29.      Mr Zanzoul said within a month of his arrival in Australia he found work as a tiler and in due course established his own business.  He met Ms Zanzoul in a restaurant in Bankstown.  He told her and her family that he was a Cypriot, he was able to speak Greek with them, and they did not object to his going out with her.  Ms Zanzoul did not ask him about his visa.  He cannot remember when he proposed to her but said he married his wife because they love and respect each other.  Mr Zanzoul said he did not tell her his real name until after they were married, but it was before their first child was born in April 1996.  Ms Zanzoul said it did not bother her, but her parents were distressed when they found out.

30.      Mr Zanzoul said he had been helped by a Lebanese friend who spoke good English in extending his visitor visas.  When his visitor visa was about to expire on 15 May 1995, his friend completed and lodged a protection visa application on his behalf.  Mr Zanzoul said he did not sign the application. His friend filled out the application including the details from Mr Zanzoul’s Danish passport which Mr Zanzoul had given him together with $500 for the fee, and it is possible that his friend forged Mr Zanzoul’s signature on the application.   The friend knew of Mr Zanzoul’s true identity.  The friend told him he had lodged the application and returned Mr Zanzoul’s passport containing a bridging visa. 

31.      Mr Zanzoul was therefore aware of the protection visa application within about a day of it being lodged.  He felt he had no other choice but to continue with this course of action.  It was true that he sprained his ankle and was not able to attend an appointment with the Department, as stated in a letter dated 21 September 1995 (T p61).  He was scared he might be deported if he told the Department of his real name.  Throughout his dealings with the Department, Mr Zanzoul continued to be confused about the nature of different visa applications.  He acknowledged that he was prepared to do anything in order to stay in Australia.  He now regrets what he did and apologises.  He would not repeat such misconduct.

32.      Mr Zanzoul denied that he married Ms Zanzoul in order to try and stay in Australia.  He married her because he loved her.  He said his wife completed the spouse visa application lodged on 9 July 1996 for him.  His English was not very good.  She was aware of his true identity from before their first child being born (on 15 April 1996) and, because of her Greek background, helped him invent names for the false Cypriot family whose details they included in the spouse visa application.  They only included one brother and sister for him in the application because no European family would have 12 children.  Mr Zanzoul was asked why he had not referred to his previous protection visa application and its being refused in the application.  He said maybe they did not take too much notice of this question (question 8 – T p72). 

33.      Mr Zanzoul was also asked about the Family (subclass 806) change in circumstance (residence) visa application lodged on 18 September 1998, again in the name of Stavros.  He had no recollection of this. 

34.      Meanwhile, Mr Zanzoul’s tiling business was apparently thriving.  Because he was interested in buying and renovating old houses, he and his wife bought a house in Punchbowl which they renovated.  They lived there for two years and it was while they were there that their son Joseph was born on 14 July 1998.  Having sold that house, they bought an old house at Yagoona to renovate, and it was while they were living there that their youngest child Susan was born on 12 July 1999. 

35.      In early January 2000, Mr Zanzoul consulted Parish Patience Solicitors.  They lodged a second protection visa application on his behalf revealing his true identity to the Department because “the truth will come out sooner or later” and because his false Danish passport would soon expire and he would not be able to renew it.  Mr Zanzoul acknowledged that he is not and was not a refugee but he allowed the protection visa application to be made on his behalf.   He lied when he claimed in the application that he would be “locked up in jail and tortured” if he had to return to Syria (T p254).  Mr Zanzoul said he was scared of loosing his wife and kids.  He was prepared to lie to prevent this happening.

36.      Mr Zanzoul was detained on 7 February 2001 and taken to Villawood.  Without his income, his wife was unable to continue making the mortgage repayments and they had to sell the house to repay the bank.  Ms Zanzoul said after the house was sold, she and the children had nowhere to live. They lived in a number of refuges until October 2001 when they departed for Syria.   At one refuge, her jewellery and mobile phone were stolen.

37. Mr Zanzoul was asked about an incident in Villawood with another detainee mentioned in the T Documents (T p303). He said he and other detainees were watching television in the TV room. Mr Zanzoul changed the TV channel. Another detainee did not like him doing this and returned the TV to the original channel. They had an argument. Security officers came and Mr Zanzoul told them what had happened. Next day, when Mr Zanzoul was sitting outside, someone came from behind him and hit him on the left eye. The police came and took photos of his injured eye but he declined to press charges. He was subsequently moved from Stage 1 to Stage 2 of the Detention Centre.

38.      Ms Zanzoul said her husband had the opportunity to escape from Villawood but he did not take it.  He tried everything to get a visa.  Eventually, the Department agreed to release him on the security of a $5,000 bond.  He complied with the conditions of the bridging visa and they all departed for Syria on 27 October 2001.

39.      They went to Mr Zanzoul’s family’s home in Hama.  Ms Zanzoul said they had been told by a Departmental officer at Parramatta that once Mr Zanzoul had lodged a spouse visa application overseas, the application would be given priority and it would only be a week or so before they could all return to Australia.  Ms Zanzoul said that apart from her return visits to Australia, she was there for over two years.  Everything there looked so strange to her and people turned their backs on her because she was not a Muslim.  She did not realise how awful Syria would be.

40.      Ms Zanzoul said her husband’s father had passed away while Mr Zanzoul was in Australia, after they were married.  Living in the family home in Hama were Mr Zanzoul’s mother and sister.  Another sister lives nearby with her children in a house where the sister’s husband has also taken a second wife.  Ms Zanzoul doubts her husband would take a second wife because he wants their family to return to Australia.

41.      Ms Zanzoul said on returning to Syria, her husband renovated the family home which his mother then sold and they moved to another house which he has also renovated.  The new house has three bedrooms.  Mr Zanzoul’s mother and sister have a bedroom each and Mr Zanzoul and their son Joseph are sharing the third smaller bedroom.  Ms Zanzoul said the house feels like a gaol because of the high windows to prevent people seeing in.  Her husband is stressed out being in Hama.

42.      Ms Zanzoul said she has learned to speak Arabic “pretty well” although she does not read or write Arabic.  Children do not go to school until the age of six in Syria so only Yasmine, who is now nearly eight, has been to school there and she, like Muslims, had to wear a headscarf which Ms Zanzoul hated.  Joseph did attend a private school for a short while but has not attended the public school because he is not yet six..  She said the children picked up Arabic very quickly.  She continued to speak English with them and with her husband.

43.      Ms Zanzoul was critical of the medical services in Syria.  In hospital, you have to put on your own bandages.  Her youngest daughter Susan, who is four and a half, has asthma and was given the wrong medication.  Since returning to Australia in December 2003, she has not had a trace of asthma.   Joseph now has a scar on his leg after an accident when tea was spilt on his ankle.  This was partly because people eat on the floor.

44.      Mr Zanzoul said his present situation in Hama is very difficult.  He has not been able to get work.  One of the problems is his lack of tools which are in Australia.  He still has some money from the sale of their house in Australia from which he has been able to pay household bills in Hama.  His wife also receives Social Security payments for herself and the children.  She found it very hard living in Syria after Australia.  They had to pay US$20 per month for Yasmine to go to school.  Joseph is not yet registered for school and cannot go until the age of six.

45.      Mr Zanzoul acknowledged that there might be more work in a city larger than Hama.  His trade is that of a tiler but he also has some experience with plumbing and electrical work, although he did not undertake such work on his houses in Australia.  When renovating his mother’s house recently, he did the tiling and cement rendering.  Mr Zanzoul said if he moved to a larger city to find work, he would have to pay rent, whereas he lives rent free in his family home. 

46.      Mr Zanzoul said he does not know what he will do if he is refused a visa – he would need to discuss this with his wife.  If he does not get a visa, he will try to make the best future for his family wherever they are.   He wants them to be together and thinks his wife will rejoin him in Syria if necessary. 

47.      Ms Zanzoul also said she did not know what to do if her husband is refused a visa.  She preferred Lebanon, where they lived for six months, to Syria, but her husband could not get a job in Lebanon and she does not want to live there.  Ms Zanzoul confirmed that she is entitled to a Greek passport and speaks Greek fluently.  She went to Greece last year, in part to try and see her half-sister – whom she did not in fact see because she was away in the next village – and in part to see if she could obtain a visa for her husband in Greece.  However, to obtain a visa, her husband would have to prove he had a job and a bank account.

48.      Ms Zanzoul said the situation for her and her two children living with her family in Homebush is very difficult.  She cannot live in Australia without the support of her husband.  She cannot even drive a car.  She wants him here and for their family to be together.

Consideration of the Law and Findings

49. The first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c), Mr Zanzoul passes the “character test” having regard to his past and present general conduct. The application of the “character test” is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldiev Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:

The concept of “good character” in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that.  It is concerned with whether the Applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry.  The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an Applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…

50. Secondly, the Tribunal must have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, the Visa Applicant, Mr Zanzoul, does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) not to refuse to grant a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.

51. In relation to s 501(6)(c)(ii), the person’s past and present general conduct, paragraph 1.9 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9 (a), 1.9 (b) and 1.9 (c), which direct the decision-maker to consider whether the non-citizen has been involved in activities indicating a contempt or disregard for the law (paragraph 1.9 (a)), or has, in connection with any application for the grant of a visa or any kind of government benefit made a false or misleading statement (paragraph 1.9) (b)), or has ever made a false or misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9 (c)).

52.      Paragraph 1.11 of Direction No 21 states that general conduct also includes recent good conduct which may be an indication that the non-citizen’s character may have reformed.

53.      Before making a decision on whether Mr Zanzoul passes the character test, it is appropriate that the Tribunal set out its findings of fact.  Mr Zanzoul acknowledged that he purchased a false passport which he used for entry into Australia with a visitor visa.  He obtained further visitor visas enabling him to stay until 15 May 1995.  However, he admitted that he worked from about a month after his arrival and the further visitor visas were the first of a series of visas, the aim of which was to enable him to remain in Australia.  On 15 May 1995, a friend of Mr Zanzoul’s lodged a protection visa application on his behalf.  Mr Zanzoul said his friend “probably” forged Mr Zanzoul’s signature.  The friend, who spoke good English, had helped him obtain the two previous visitor visas.  Mr Zanzoul was not initially aware of the nature of the protection visa application, but became aware of this when the friend returned his passport, including a bridging visa, within about a day of the bridging visa being issued.  Mr Zanzoul acknowledged that he was prepared to do anything in order to stay in Australia, and that the claims of feared persecution included in the protection visa application were false.

55.      Mr Zanzoul continued to use the name Stavros stated in his passport in all his applications until January 2000.  This was also the name by which Ms Zanzoul and her parents knew him when they first met and the name he used for his marriage to Ms Zanzoul.  It was only after the marriage that he revealed his true identity to his wife, probably in early 1996 before the birth of their first child.  Ms Zanzoul said when she learned of this, she was not bothered by it.  Indeed, from then on she became complicit in assisting her husband with visa applications in that name.  Their children were also registered at birth in the name of Stavros.

56.      From about late November 1995, after Mr Zanzoul had been notified of the rejection of his protection visa application, until 19 July 1996, Mr Zanzoul was without a valid visa or permission to work.  On 9 July 1996, he applied for a spouse visa on the basis of his marriage to Ms Zanzoul.  Ms Zanzoul confirmed her husband’s evidence that she helped him complete the visa application form and invent false names for supposed family members in Cyprus where, according to his false passport, he had been born in Limassol.  This visa application was also supported by false documentation.

57.      When on 9 September 1998, the Department determined that Mr Zanzoul’s spouse visa application was not a valid application because of his earlier protection visa application, which had not been disclosed in the spouse visa application, Mr Zanzoul applied for a Family (subclass 806) change in circumstance (residence) visa which was also refused.  A review application lodged on 28 April 1999 was found to be out of time.  On 6 August 1999, Mr Zanzoul was granted a bridging visa E having, apparently, been over three months without a valid visa.  Mr Zanzoul did not comply with the requirements of this and a series of later bridging visas E that he depart Australia by a specified date.

58.      On 13 January 2000, Mr Zanzoul’s new solicitors, Parish Patience, lodged a protection visa application on his behalf.  This contained false statements made by Mr Zanzoul.  At the hearing, he acknowledged that he is not and was not a refugee and the claims in the application that he would be “locked up in jail and tortured” if he had to return to Syria were false.  He said he was scared of loosing his wife and children and was prepared to lie to prevent this happening.  After Federal Court proceedings that led to the Department agreeing to an Order, by consent, that the protection visa application was a valid application, Mr Zanzoul then withdrew the application and sought to reinstate the spouse visa application of July 1996.  The Department, however, determined that the spouse visa application was invalid, and notified Parish Patience of this by letter dated 3 November 2000.   Then by letter dated 5 February 2001, Parish Patience notified the Department that Mr Zanzoul had withdrawn his instructions and, consequently, they no longer acted for him.

59.      On 7 February 2001, Mr Zanzoul was located by Departmental officers and detained in Villawood.  He made a number of applications for bridging visas and an application for Ministerial intervention, all of which were refused.  His then solicitors also sought to reactivate Mr Zanzoul’s 1998 application for a Family (subclass 806) change in circumstances (residence) visa, but this was also unsuccessful.  Finally, on about 23 October 2001, following a decision of the MRT, the Department issued Mr Zanzoul with a bridging visa E and he was released, on the security of a $5,000 bond, to enable him to depart Australia with his family on 27 October 2001.

60.      Thus, contrary to Mr Zanzoul’s initial assertion at the beginning of his cross-examination that he had not done anything else wrong except enter Australia with a false passport, and that he had not told lies in his visa applications, his immigration history is of visitor visa applications, protection visa applications and spouse and Family change in circumstance (residence) visa applications containing false statements and false information, and a series of bridging visas E with which he did not comply.  He was also at various times in Australia without a valid visa and at various times worked without permission.  The Tribunal notes that Mr Zanzoul maintained the deception as to his identity even to his wife prior to their marriage and told her and her family that he was a Greek Cypriot.

61.      This is a most serious case of immigration misconduct and abuse of Australia’s migration system.  It is clear that Mr Zanzoul was prepared to use whatever means available to him to stay in Australia and consistently and repeatedly lied and manipulated the system to achieve that end.  In doing so, he showed a contempt for Australian law.  The Tribunal therefore determines that Mr Zanzoul does not pass the character test by reason of his past and present general conduct.

62. Having determined that Mr Zanzoul does not pass the character test by reason of his past and present general conduct, the Tribunal must then consider the exercise of the residual discretion under s 501(1) to decide whether not to refuse the grant of a visa to Mr Zanzoul. In so doing, the Tribunal must have regard to Direction No 21 as a guide to the exercise of its discretion.

63.      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.

Paragraph 2.4 explains:

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.

64. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraph (c), serious crimes against the Act. Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.

65. Turning to the first of the primary considerations, the protection of the Australian community, as the Tribunal has already stated, Mr Zanzoul has committed serious crimes against the Act. He used a bogus identity, acted fraudulently, made false statements and declarations, used bogus documents, remained in Australia unlawfully and worked without permission, and failed to comply with conditions to which his bridging visas were subject. Essentially, as he acknowledged, he has been prepared to abuse the system to his advantage. Whilst he expressed his remorse in giving evidence, there is no evidence of recent good conduct and every likelihood that he will repeat such misconduct if he perceives it to be for his benefit.

66.      In the Tribunal’s view, in a case of such serious immigration misconduct, considerable weight should be given to the deterrent effect of refusing a visa application.  Indeed, with reference to the second primary consideration, the expectations of the Australian community, as paragraph 2.12 of Direction No 21 states, the Australian community expects non-citizens to obey Australian laws while in Australia and would expect that a visa would be refused in circumstances where a person has committed serious immigration misconduct and shown contempt for Australian law.

67.      The third primary consideration is the Best Interests of the Child.  The Tribunal notes the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa, and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the children understood as a primary consideration”.

68.      The Tribunal finds that Mr and Ms Zanzoul have three children, Yasmine, aged seven, Joseph, aged five, and Susan, aged four and a half.   Yasmine and Susan are presently in Australia with their mother and Joseph is in Syria with Mr Zanzoul.    All three were born in Australia and are Australian citizens.  However, they have lived for more than two years in Syria from late October 2001, and Ms Zanzoul’s evidence suggests that the children have adapted to life in Syria having learned to speak Arabic.  Yasmine went to school in Syria from the age of six, although she wore a headscarf to which Ms Zanzoul strongly objects. Yasmine and Susan are now attending Homebush Public School, opposite Ms Zanzoul’s parents’ home.  Although Joseph has attended a special school for a short period, like all children in Syria he will not be permitted to enrol in a public school until the age of six. 

69.      Ms Zanzoul states that health and medical services in Syria are inferior to those in Australia.  While there is no evidence of this, the Tribunal accepts that it is likely that both health and medical services and education are inferior since Syria is a relatively poor country.  The cramped housing conditions currently experienced by Ms Zanzoul’s family in Syria are more a reflection of choosing to share a room in Mr Zanzoul’s mother’s house and of Mr Zanzoul not having a job than of the general housing situation.  It seems likely that if Mr Zanzoul could secure employment, they could rent a house and this would solve many of their immediate problems.  Similarly, it is obviously very difficult for Ms Zanzoul sharing a room with Yasmine and Susan in her parents’ house in Homebush, particularly because of her autistic brother who requires the full-time care and supervision of Ms Zanzoul’s mother.

70.      Specifically, in relation to medical services, Ms Zanzoul states that Susan suffered asthma in Syria which has quickly been resolved on returning to Australia.  There is no other evidence to support this nor her claim of inappropriate treatment. 

71.      The impression gained by the Tribunal is that Mr Zanzoul is awaiting the result of his visa application and these proceedings before taking active steps to try and secure employment in Syria and improve his family’s situation.  By all accounts, he is a skilled tiler and able to undertake other building work such as cement rendering.  The evidence suggests that Mr Zanzoul has not properly tested the employment situation in Syria beyond the vicinity of his parental home in Hama.

72.      Ms Zanzoul’s evidence is that Mr Zanzoul loves his family and that they both want to settle down as a family and secure their future.  The Tribunal is not satisfied that this cannot happen in Syria.  If the effort is made and Mr Zanzoul secures employment, it seems likely that many of the family’s immediate problems would be resolved. 

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

74.      The Tribunal finds that Mr Zanzoul’s mother and siblings all live in Syria.  His only relative in Australia is an uncle with whom he stayed on first arriving in Australia.  Ms Zanzoul’s family live in Sydney, although her sister and family now live in Goulburn.   Ms Zanzoul and her two daughters are currently staying at the family home in Homebush under difficult conditions, in particular because of Ms Zanzoul’s autistic brother for whom their mother cares on a full-time basis.  Ms Zanzoul’s evidence suggests that there has been some friction between her and her parents, older brother and sister as a result of Mr Zanzoul’s conduct in lying to them and saying he was a Cypriot.  Ms Zanzoul also claims that, as Christians, they are prejudiced against Muslims.

75.      Mr Zanzoul’s detention and forced departure had the effect of closing what appears to have been his successful tiling business.   Ms Zanzoul says her husband’s van and tools are in storage in the hope that he can return to Australia.  The closure of the business also resulted in their having to sell their house because they were unable to maintain the required payments in respect of the housing loan.  Thus, there is no doubt that these events have caused significant hardship to the family.  However, this was brought about by Mr Zanzoul’s immigration misconduct in which, from about early 1996, Ms Zanzoul was complicit.  She was aware of her husband’s true identity from that time and assisted him in making the July 1996 spouse visa application, including inventing names for supposed Cypriot family members for the purpose of persuading the Department of the genuineness of her husband’s background.  In part at least, she must shoulder some responsibility for what subsequently occurred.

76.      Ms Zanzoul has spent over two years living in Syria and gave evidence that she hated it.  However, she states that she is reasonably fluent in Arabic although she cannot read or write in Arabic.  In the Tribunal’s view, the problem seems in part to have been that she did not have her own home, although the Tribunal accepts that conditions in Syria are probably significantly inferior to those in Australia.  As noted, the family situation is likely to improve if Mr Zanzoul can find employment.

77.      The Tribunal has found making an appropriate decision in this case to be very difficult. While the protection and expectations of the Australian community unequivocally favour Mr Zanzoul’s exclusion from Australia, the children’s best interests must be given careful consideration.  

78.      On balance, the Tribunal considers that, for the children, the most important factor is the maintenance of the family unit.  While conditions in Syria may not be as favourable as those in Australia, the family’s experience of the past two years suggests that the family unit can function effectively in Syria.  Clearly, part of the problem seems to have been that Mr Zanzoul has been “in limbo” pending the outcome of the visa application process, sustaining the hope that he would be able to return to Australia.  He obviously has skills, and a decision having finally been made, it is then open to him to take steps to try and secure the future of his family.

79. The Tribunal determines that in this case the protection and expectations of the Australian community outweigh the best interests of the children and the other considerations. Mr Zanzoul’s immigration misconduct is so serious that he should not be permitted to re-enter Australia and the discretion in s 501(1) of the Act should not be exercised in his favour. The Tribunal therefore affirms the decision under review.

I certify that the 79 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President

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

Date/s of Hearing  3 and 4 February 2004
Date of Decision  20 February 2004
Representative for the Applicant               Mr A Hemmad, Migration Agent
Representative for the Respondent          Ms E Warner, Solicitor