Hadchiti and Minister for Immigration and Multicultural Affairs [2002] AATA 65 (4 February 2002)

Last Updated: 6 February 2002

DECISION AND REASONS FOR DECISION [2002] AATA 65

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/987

GENERAL ADMINISTRATIVE DIVISION )

Re Angela Hadchiti

Applicant

And Minister for Immigration and Multicultural Affairs

Respondent

DECISION

Tribunal Justice D F O'Connor, President

Date 4 February 2002

Place Sydney

Decision The decision under review is affirmed.

[SGD] Justice D F O'Connor

President

CATCHWORDS

Immigration - Spouse Visa - character test - past and present conduct - visa applicant engaged in criminal conduct and convicted of a serious drug offence - failure to disclose conviction in visa application - visa applicant behaving in a threatening and intimidating manner against Australian government officials and the applicant - not of good character.

Whether discretion should be exercised in favour of visa applicant despite character finding - primary considerations - protection of the Australian Community - seriousness of conduct - risk of recidivism - general deterrence - expectations of the Australian Community - best interests of the child - other considerations.

Migration Act 1958 - Section 501

Ministerial Direction No 21 - Visa Refusal and Cancellation under S501.

REASONS FOR DECISION

Justice D F O'Connor

1. This is an application made by Angela Hadchiti (hereinafter "the applicant") for review of a decision made on 27 April 2001 to refuse a spouse visa for permanent entry to Australia to Mr Elias Michael Hadchiti (hereinafter the "visa applicant"). The decision was made under section 501 of the Migration Act 1958 (hereinafter "the Act").

Background

2. The visa applicant is a citizen of Lebanon and was born 14 January 1970. He married the applicant on 10 October 1996. They have one child Elissa, born on 27 November 1997. The applicant and Elissa are Australian Citizens.

3. On 22 October 1994 the visa applicant was arrested and charged with the offence of trafficking in narcotics. He was found innocent of this charge. While in prison he was again arrested on further drug charges. On 19 December 1996 the Criminal Court of Mount Lebanon convicted the visa applicant, in absentia, for trafficking in narcotics (the second charge) and he was sentenced to seven years hard labour. On 14 January 1998 the Public Prosecution of Mount Lebanon decreed the cancellation of the conviction as a result of a subsequent amnesty law.

4. The visa applicant applied for a spouse visa in 2001 (based on his marriage to the applicant). This was the second time an application had been made. The visa applicant and the applicant were interviewed on a number of occasions by officers of the Department of Immigration and Multicultural Affairs (hereinafter "DIMA"). The decision was to refuse the visa. It is this decision which is the subject of this review.

Relevant Legislation

5. Section 501 of the Act relevantly states:

"501 (1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

Note: Character test is defined by subsection (6).

(2) The Minister may cancel a visa that has been granted to a person if:

(a) the Minister reasonably suspects that the person does not pass the character test; and

(b) the person does not satisfy the Minister that the person passes the character test".

"Character test

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

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

(b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct, or

(c) having regard to either or both of the following:

(i) the person's past and present criminal conduct;

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

the person is not of good character; or

(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:

(i) engage in criminal conduct in Australia; or

(ii) harass; molest, intimidate or stalk another person in Australia; or

(iii) vilify a segment of the Australian community; or

(iv) incite discord in the Australian community or in a segment of that community; or

(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

Otherwise, the person passes the "character test".

Substantial criminal record

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

(a) the person has been sentenced to death; or

(b) the person has been sentenced to imprisonment for life; or

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

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

(e) the person has been acquitted of an office on the ground of unsoundness of mind or insanity, and as a result the person has been detained from a facility or institution."

"Pardons etc.

(10) For the purposes of the character test, a sentence imposed on a person is to be disregarded if:

(a) the conviction concerned has been quashed or otherwise nullified; or

(b) the person has been pardoned in relation to the conviction concerned.

Conduct amounting to harassment or molestation

(11) For the purpose of the character test, conduct may amount to harassment or molestation of a person even though:

(a) it does not involve violence , or threatened violence, to the person; or

(b) it consists only of damage, or threatened damage, to property belonging to, in the possession of, or used by, the person.

Definitions

(12) In this section:

"court" includes a court martial or similar tribunal.

"imprisonment" includes any form of punitive detention in a facility or institution.

"sentence" includes any form of determination of the punishment for an offence.

..."

6. The Minister's Direction titled Visa Refusal and Cancellation under section 501 of the Migration Act 1958 (No 21) relevantly states:

"PART 1 - APPLICATION OF THE CHARACTER TEST

The Minister may refuse or cancel a visa if the non-citizen does not satisfy the Character Test

1.1 Non-citizens who are being considered under section 501 must satisfy the decision-maker that they pass the Character Test. If there is reasonable suspicion that a non-citizen does not pass the Character Test, the non-citizen must also provide evidence to satisfy the decision-maker that the non-citizen passes the Character Test.

1.2 If a non-citizen is unable to satisfy the decision-maker that they pass the Character Test, subsection 501(1) provides the authority to refuse to grant a visa and subsection 501(2) provides the authority to cancel a visa that has already been granted.

1.3 There are four grounds against which a non-citizen may be considered to not pass the Character Test under subsection 501(6).

Paragraph 501(6)(a) "substantial criminal record"

1.4 A non-citizen does not pass the Character Test if they have a substantial criminal record. Substantial criminal record is defined in subsection 501(7).

Paragraph 501(6)(b) "association" grounds

1.5 The meaning of "association" for the purposes of the Character Test encompasses a very wide range of relationships including having an "alliance" or a "link" or "connection" with a person, a group or an organised body that is involved in criminal activities. "Association" does not require actual membership of a group or an organised body that is involved in criminal activities. In establishing criminal association, the decision-maker may have regard to the following:

(a) the degree and frequency of association the non-citizen had or has with the individual, group or organisation;

(b) the duration of the association; and

(c) the nature of the association.

1.6 In some cases the information concerning association will be protected from disclosure by section 503A of the Act. In all cases, great care should be taken not to disclose information that might put the life or safety of informants or other persons at risk.

Paragraph 501(6)(c) - not of good character on account of past and present criminal or general conduct

1.7 Under paragraph 501(6)(c), decision-makers are required to make a finding that a non-citizen is "not of good character" on account of the non-citizen's past and present, criminal or general conduct and thereby does not pass the Character Test. In reaching the conclusion that a non-citizen is not of good character, decision- makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct.

* Subparagraph 501(6)(c)(i) - past and present criminal conduct

1.8 In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(i), decision-makers should take into consideration the following:

(a) the nature, severity and frequency of the offence/s;

(b) how long ago the offence/s were committed;

(c) the non-citizen's record since the offence/s were committed, including:

* any evidence of recidivism or continuing association with criminals;

* a pattern of similar offences; and/or

* pattern of continued or blatant disregard/contempt for the law; and

(d) any mitigating circumstances such as may be evident from judges' comments, parole reports and similar documents.

* Subparagraph 501 (6)(c)(ii) -past and present genera/conduct

1.9 In considering whether a non-citizen is not of good character against subparagraph 501 (6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:

(a) whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:

* engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen's moral qualities;

* continual evasion or non-payment of debt;

* continual disregard as to payments of family maintenance;

* involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, "white collar" crime, fraud, breaches of immigration law; or

* involvement in war crimes or crimes against humanity.

(b) 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;

(c) whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen's character or conduct or both;

(d) whether the non-citizen has been removed/deported from Australia or removed/deported from another country; or

(e) whether the non-citizen has been dishonourably discharged from the armed forces of any country or discharged prematurely as the result of disciplinary action in circumstances, or because of conduct, which would be regarded as serious in Australia.

1.10 In addition to the above matters, a non-citizen is, in the absence of any countervailing factors, not of good character under the general conduct provisions if the conduct of the non-citizen has:

(a) resulted in offences that are the subject of charges but are not resolved pending a hearing or trial. Matters to be considered when deciding the weight to be given to unresolved charges could include, (but are not limited to):

* whether there is a pattern of conduct relating to the applicant (eg similar charges in the past, other criminal behaviour); and/or

* the seriousness of the offence with which the applicant has been charged; or

(b) resulted in the non-citizen being acquitted of a criminal offence or where there has been no conviction recorded.

1.11 General conduct also includes recent good conduct. Any good acts of the non-citizen after reprehensible conduct are indications that the non-citizen's character may have reformed. Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen's character.

However, where the decision-maker is not fully persuaded that the non-citizen has reformed, the discretion to refuse or cancel a visa is enlivened, and evidence of good acts and recent conduct becomes relevant to the exercise of the discretion (see Part 2).

Paragraph 501(6)(d) -"significant risk" of future conduct grounds

1.12 For the purposes of the Character Test, it is not sufficient to find that a non- citizen has engaged in conduct specified in paragraph 501(6)(d) in the past, rather, decision-makers are required to determine whether there is a significant risk that a non-citizen would engage in the specified conduct set out in paragraph 501(6)(d) in the future.

1.13 The "significant risk" criterion will be met if there is evidence which suggests that there is more than a minimal or trivial likelihood that a non-citizen would, if allowed to enter or to remain in Australia, engage in conduct specified in paragraph 501 (6)(d).

* Subparagraph 501(6)(d)(i) - "engaging in criminal conduct in Australia"

1.14 The reference to criminal conduct must be read as requiring there to be a significant risk of the person engaging in conduct for which a criminal conviction could be recorded. Decision-makers must make a finding that there is a significant risk that the non-citizen would engage in conduct which, if proven, would amount to a criminal offence.

* Subparagraph 501(6)(d)(ii) - "harass, molest, intimidate, or stalk another person in Australia"

1.15 For the purposes of section 501(6)(d)(ii), the words "harassment",

"molestation", "intimidation" and "stalking" are to be given their ordinary meaning and should not be narrowly interpreted. However, decision-makers should note that subsection 501(11) defines the scope of conduct amounting to harassment or molestation. A wide variety of conduct and behaviour fall under this category including, (but is not limited to) the following:

(a) conduct that does not breach the terms of an Apprehended Violence Order, or similar order, but nevertheless could be construed as harassment or intimidation;

(b) engaging in conduct recognised as placing children in danger, such as unwelcome and inappropriate approaches, particularly to children; or

(c) any conduct that causes a person to be severely apprehensive, fearful, alarmed or distressed regarding the behaviour or alleged behaviour of the non-citizen, towards a person or in relation to his or her or another person's property.

* Subparagraph 501(6)(d)(iii) - "vilify segment of the community",

* Subparagraph 501(6)(d)(iv) - "incite discord"

1.16 Factors that must be considered in deciding whether or not a non-citizen passes the Character Test on subparagraph 501(6)(d)(iii) "vilify a segment of the community", and (iv) "incite discord" grounds includes, (but is not limited to), evidence that the non-citizen:

(a) holds or advocates extremist views such as a belief in the use of violence as a legitimate means of political expression;

(b) intends to vilify a part of the community;

(c) has a record of behaviour linked to or encouraging disregard for law and order, for example in the course of addressing public rallies;

(d) has engaged or threatens to engage in conduct likely to be incompatible with the smooth operation of a multicultural society, for example advocating that particular ethnic groups should adopt political, social or religious values well outside those generally acceptable in Australian society, and if adopted or practised, might lead to discord within those groups or between those groups and other segments of Australian society;

(e) participates in, or is active in promotion of politically motivated violence or criminal violence and/or being likely to propagate or encourage such action in Australia;

(f) is likely to provoke civil unrest in Australia because of the conjunction of the non-citizen's intended activities and proposed timing of their presence in Australia with those by another person who may hold opposing views;

(g) evidence that the presence in Australia of the non-citizen will result in there being a significant risk that Australia's foreign relations will be prejudiced; or

(h) any other credible material which may be relevant to the exercise of the discretion under subsections 501(1) & (2) or to the determination under Public Interest Criterion 4003 of Schedule 4 of the Migration Regulations.

1.17 When considering a non-citizen against subparagraph 501(6)(d)(iii) "vilify a segment of the community", and (iv) "incite discord", the decision-maker should bear in mind that subparagraphs 501(6)(d)(iii) and (iv) are not intended to provide a

charter for denying entry or continued stay to non-citizens merely on the ground that they hold and are likely to express unpopular opinions, even if these opinions may attract strong expressions of disagreement and condemnation from some elements of the Australian community. It is therefore incumbent on the decision-maker to balance the operation of these subparagraphs against Australia's well-established tradition of free expression.

PART 2- EXERCISING THE DISCRETION

2.1 If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

Weight of considerations

2.2 The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. The primary considerations are set out at paragraphs 2.3 - 2.16 and other considerations are set out at paragraphs 2.17 - 2.24. 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.

PRIMARY CONSIDERATIONS

2.3 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.

Protection of the Australian Community

2.4 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. The Government is especially mindful to take reasonable steps to protect the safety of the more vulnerable members of the community, such as children and young people who are especially at risk. This is of particular importance when the offences in question are in relation to drugs and crimes of violence.

2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen 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).

a. The seriousness and nature of the conduct

2.6 It is the Government's view that the following are examples of offences, which are considered by the Government to be very serious:

(a) the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs:

* persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia's young people;

* the Government views non-citizens who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders. It is important both as a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk, be viewed as completely unacceptable to the community; and

* offences involving illicit drugs of dependency or addiction, such as heroin, are also of particular concern to the Government and the community;

(b) organised criminal activity resulting in a conviction in Australia or elsewhere;

(c) serious crimes against the Migration Act 1958, including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more for bringing non-citizens into Australia in contravention of the Act; or to harbour unlawful non- citizens; arranging a contrived marriage, de facto relationship or interdependency to obtain permanent residence; or providing certain false or misleading information about a marital, de facto or interdependency relationship, applying or nominating for permanent residence on the basis of a contrived marriage, de facto relationship or interdependency relationship; or using or possessing a visa granted to another person; or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;

(d) sexual assaults are particularly repugnant to the Australian community, especially sexual assaults involving children regardless of whether there was overt violence or the threat of violence;

(e) armed robbery (including robbery involving the use of imitation weapons), home invasion;

(f) murder, manslaughter, assault or any other form of violence against persons;

(g) terrorist activity;

(h) kidnapping;

(i) blackmail

(j) extortion;

(k) arson;

(I) serious theft (including "white collar" crimes):

* such crimes are of concern because of the amounts of money involved and/or the disruption caused to individuals, business and Government;

(m) crimes against children:

* due to their vulnerability as victims and potential victims, crimes against children take on a special significance, especially crimes involving inducing children to take illicit drugs, sexual assaults on children, child prostitution, violence to children, kidnapping and crimes taking advantage of children;

(n) any other crimes involving violence or the threat of violence:

* such crimes are of special concern to the welfare and safety of the Australian community; and

(o) ancillary offences in respect to any of the above offences, including:

* convictions for attempting to commit any of the above offences;

* .convictions for conspiracy to commit any of the above offences; and

* convictions for being an accessory before or after the fact in any of the above

offences.

2.7 It is the Government's view that the sentence imposed for a crime is an indication also of the seriousness of the offender's conduct against the community. Decision-makers should have due regard to the Government's view in this respect, including:

(a) the extent of the person's criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence; and

(b) the repugnance of the crime:

* crimes involving violence or fraud against defenceless persons (such as children, the elderly, the disabled and the incapacitated) are especially repugnant to the whole community.

2.8 When exercising discretion, decision-makers must also take the following factors into account as relevant considerations:

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

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

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

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

(d) the non-citizen has been pardoned:

* Note in some jurisdictions "pardons" may only have the status of spent convictions legislation in Australia.

2.9 In relation to non-citizens who do not pass the Character Test due to convictions resulting from unsoundness of mind or insanity, the degree of recovery must be taken into consideration. If the non-citizen continues to rely on medication to control their condition, the non-citizen cannot be defined as having fully recovered. Moreover, the likely consequences of a non-citizen deliberately or accidentally not taking their medication must be considered.

b. likelihood that the conduct may be repeated (including any risk of

recidivism)

2.10 It is the Government's view that the person's previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism. In particular, the following factors will be relevant to the assessment:

(a) a non-citizen commits a further offence after having been warned previously about the risk of refusal or cancellation;

(b) a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of that past behaviour. In cases where there is a gap or gaps between convictions, the inference may be open that the non-citizen has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed; and

(c) the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.

c. general deterrence -the likelihood that visa refusal or visa - cancellation would prevent (or inhibit the commission of) like offences by other persons

2.11 General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways:

(a) the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and

(b) the visa refusal or cancellation in respect of a non-citizen who has been involved in a criminal scheme or schemes may discourage or prevent another person or persons from engaging in similar schemes.

Expectations of the Australian community

2.12 The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. Decision-makers should have due regard to the Government's view in this respect.

The best interests of the child

2.13 This consideration only applies if the child is or would be less than 18 years of age at the time when the decision is intended to come into effect. The best interests of any children aged 18 years or more is not a primary consideration but may be considered with other considerations under paragraph 2.17.

2.14 Where there are two or more relevant children, it should not be assumed that the interests of each child will coincide, and it may be that the best interests of one child may indicate the non-citizen parent should not be refused a visa or removed from Australia, but that the best interests of another child may point towards visa refusal or cancellation.

2.15 In general terms, the child's best interest will be served if the child remains with its parents. Countervailing considerations, which may point to the child's best interests being served by separation from the non-citizen, include, but are not limited to:

(a) any evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; or

(b) any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

2.16 When considering the best interests of the child, decision-makers should have regard to the following:

(a) the nature of the relationship between the child and the non-citizen;

(b) the duration of the relationship including the number and length of any separations and reason/s for the separation; the hypothetical prospect for developing a better/stronger relationship in future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct;

(c) the age of the child;

(d) whether the child is an Australian citizen or permanent resident;

(e) the likely effect that any separation from the non-citizen would have on the child;

(f) the impact of the non-citizen's prior conduct on the child;

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

(h) the circumstances of the probable receiving country, including the educational

facilities and the standard of the health support system of the country to which the child may have to go, or return to, should the non-citizen not be permitted to enter or remain in Australia;

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

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

OTHER CONSIDERATIONS

2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations. These other considerations may include:

(a) the extent of disruption to the non-citizen's family, business and other ties to the Australian community;

* Article 23.1 of the International Covenant on Civil and Political Rights (ICCPR) provides that:

"The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State."

Article 17.1 provides that:

"No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation".

(b) genuine marriage to, or de facto or interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen:

* in assessing the compassionate claims of the Australian partner (Australian citizen, resident or eligible New Zealand citizen), decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship;

(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;

(d) family composition of the non-citizen's family, both in Australia and overseas;

(e) the likelihood of the non-citizen seeking to evade any outstanding legal matter or on-going liability;

(f) the likelihood of the non-citizen breaching any conditions attached to the outstanding legal or on-going matter, any cost or bilateral implications of such a breach (eg extradition);

(g) the nature and seriousness of the offence(s) or alleged offence(s) (in the context of seeking to evade an outstanding legal matter);

(h) any evidence of rehabilitation and any recent good conduct;

(i) whether the application is for a temporary visa or permanent visa;

(j) the purpose and intended duration of the entry to or stay in Australia,

including any significant compassionate circumstances; and

(k) the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions at section 200/201 of the Act or the visa refusal and cancellation provisions at section 501.

OTHER INTERNATIONAL OBLIGATIONS

2.18 Where relevant, decision-makers are required to consider the international obligations contained in this section.

2.19 The International Convention on Civil and Political Rights (ICCPR) has an implicit non-refoulement obligation where as a necessary or foreseeable consequence of their removal or deportation from Australia, the person would face a real risk of violation of his or her rights under Article 6 (right to life), or Article 7 (freedom from torture and cruel, inhuman or degrading treatment or punishment) of the ICCPR, or face the death penalty, no matter whether lawfully imposed (Second Optional Protocol to the ICCPR).

2.20 The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) has an explicit prohibition against refoulement "where there are substantial grounds for believing (the person) would be in danger of being subject to torture".

2.21 the prohibition of refoulement under the CAT and ICCPR is absolute: there is no balancing of other factors if refusal or cancellation would amount to refoulement under the CAT or ICCPR.

2.22. In cases where issues of protection pursuant to the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention) are raised, they must be given consideration in the decision making process.

2.23. If Article 33(1) of the Refugees Convention does not apply to the non-citizen, there is no obligation on Australia to provide the non-citizen with protection under the Refugees Convention. If Article 33(1) applies, then there will need to be consideration whether the non-citizen can claim the benefit of Article 33(1).

2.24 Notwithstanding international obligations, the power to refuse or cancel must inherently remain a fundamental exercise of Australian sovereignty. The responsibility to determine who should be allowed to enter or to remain in Australia in the interests of the Australian community ultimately lies within the discretion of the responsible Minister.

Date of effect of Direction

2.25 This direction is to take effect from the date of signature.

Dated this 23^rd day of August 2001..."

Relevant Evidence

7. In addition to the T-Documents, I have before me case notes made in connection with the visa application including notes of the interviews with the applicant and visa applicant (Exhibit R1). Some of these notes were made by the primary decision-maker. I also have before me the following documents:

* a number of written statements and letters from the visa applicant (Exhibits A2 and A3);

* statements by both the applicant and her father (A5); and

* a number of reports concerning the welfare of Elissa Hadchiti and the applicant (A6).

8. The applicant, the visa applicant, the applicant's father and Mr Davis, (the decision-maker) all gave evidence in the oral proceedings and were cross-examined.

9. I have had regard to all of this material in making this decision.

Issues

10. The applicant asks the Tribunal to exercise the power conferred by section 501 of the Act (see above) to find that the visa applicant is a person of good character or/alternatively if the visa applicant is found not to be a person of good character, to exercise the available discretion in his favour in spite of that finding.

Evidence

11. A great deal of the crucial evidence in this matter is contested by the parties. The respondent, in submitting that a finding that the visa applicant is not of good character is justified, relies on evidence that:

(i) the visa applicant was convicted of a serious drug-related crime which has by virtue of an amnesty, been removed from the record;

(ii) the visa applicant acted in a threatening manner at the Australian Embassy on at least two occasions while being interviewed in relation to the application;

(iii) during one of these interviews the visa applicant threatened to kill his wife if the visa was not granted and thereafter she returned to Australia;

(iv) the visa applicant filled out his 2001 application in a misleading manner by failing to disclose the drug conviction; and

(v) the visa applicant lied to the tribunal about some of these matters.

12. This evidence is denied by the visa applicant who is, on most matters of fact, supported by the applicant.

13. The applicant in her oral evidence challenged the truth of findings of fact made by the primary decision-maker on the following issues. She denied that her husband behaved in a threatening way towards anyone, including herself at the Embassy. She denied that her husband had moved to the same side of the desk as the Embassy Officer in a threatening manner, while shouting and acting emotionally. She denied (or could not recall) that the Chief Migration Officer was ever present at the meetings. She asserted that in 2001, the application form was filled out correctly according to her belief at the time. She described her husband's behaviour at the Embassy as a result of being upset and emotional but stated it was not intimidating.

14. The visa applicant supported her evidence on all these matters except that he agreed that the Chief Migration Officer had been present at one meeting. He gave, in the course of his oral evidence, many evasive answers. In particular, in relation to the filling out of the visa application form, he appeared to be more concerned with whether answering "yes" or "no" to a repeated question would be "good for his case", rather than relying on his recollection to tell the truth. Further, when questioned about his arrest, he explained prior inconsistent versions of this event by claiming he "wasn't asked" about a number of matters relating to his case. This explanation was, at best, unconvincing.

15. In relation to matters of family welfare (including the welfare of the couple's child), the applicant said that she and the child were healthier and happier living in Australia. They have been here, on this occasion, since August 2001 and are living with the applicant's parents. The visa applicant said he had bought a house for them in Lebanon but agreed that his wife had problems living there, even though his daughter was born in Lebanon and had spent most of her life there interspersed with visits to Australia.

16. Mr Davis, the decision-maker, gave evidence which contradicted the applicant and visa applicant's evidence on a number of critical points. He said:

(i) that dealing with this application had taken an unusually long period of time, He based this assessment on his extensive experience as a Case Officer;

(ii) that, although he is a very experienced officer in such matters, he has never before, or since, needed to have additional people be present at interviews to control the situation and prevent intimidating behaviour towards himself and others;

(iii) he confirmed his notes and decision notes which described intimidating and threatening behaviour by the visa applicant. He agreed that the visa applicant was upset and emotional. He described him as being "out of control"; and

(iv) that the death threats against the visa applicant's wife were made by the visa applicant in the presence of, and were heard by, the Chief Migration officer on that occasion.

17. The representative for the applicant, Mr Chahoud, submitted that the Tribunal should accept his clients' version of the evidence and the events at the Embassy in particular. He submitted that the visa applicant suggested in evidence that he was treated unfairly at the Embassy and that is why he was justifiably upset and emotional. This explains his behaviour and it should not be concluded, as a result, that his character is not good. The applicant also submited that none of the threats (if they occurred) were carried out and it "only happened" (in relation to the threats to kill his wife) on "one occasion".

18. I have preferred, where the accounts of the visa applicant's behaviour are inconsistent or contradictory, the version of these events given and cross-examined, by the original decision-maker. There was no basis put in evidence, or submission made, as to why Mr Davis should, without foundation, accuse the visa applicant of threatening behaviour. I accept his evidence and so find that:

(i) this application had been an unusually difficult one to process. It had taken a greater amount of time than usual;

(ii) Mr Davis had been intimidated by the behaviour of the visa applicant;

(iii) Mr Davis had heard the visa applicant threaten to kill his wife (the applicant); and

(iv) the visa applicant "lost control" and had to be escorted from the Embassy by the security staff.

Is the visa applicant of good character?

19. The respondent argued that the answer of this question should be "no" relying on four submissions:

(i) the visa applicant has engaged in criminal conduct based on the fact that, in 1996, the visa applicant had been convicted of a serious drug offence with a sentence of seven years. This conviction, the subject of a general amnesty, was made in absentia;

(ii) the visa applicant failed to disclose the above conviction and the circumstances in which it occurred in his 2001 application for a visa;

(iii) the visa applicant's behaviour on a number of occasions at the Embassy was highly unusual for those making applications and was unacceptable; and

(iv) the visa applicant has not in these proceedings, told the truth about many relevant events.

20. In response to these submissions, the applicant argued that:

(i) the visa applicant's conviction in 1996 was politically motivated and is now the subject of an amnesty. He is, by reason of that fact, not able to "prove" his innocence in the Lebanese Courts and it should thus be disregarded in these proceedings. He submitted that when arrested he was "framed" and he was never subpoenaed to give evidence at the proceedings where he was convicted in absentia. This fact is not challenged by the respondent (however the respondent challenges the version of events as to his arrest given by the visa applicant);

(ii) the visa applicant's failure to disclose the conviction and the circumstances surrounding it, in the 2001 application, was because he and the applicant "believed" that, at that time, he had no convictions (relying on the amnesty). Therefore they did not intend to mislead the Australian authorities;

(iii) the visa applicant's behaviour at the Embassy was provoked by the behaviour of the Embassy staff and was understandable in the circumstances. He relies on his own and the applicant's evidence to deny threatening her or Embassy staff in any way; and

(iv) the visa applicant and the applicant's evidence is truthful and should be preferred to that of Mr Davis.

21. Having considered these submissions and the written material before me I have concluded and so find the visa applicant is not a person of good character. Of itself, the conviction in 1996, having regard to the circumstances, particularly the amnesty and the circumstances in Lebanon at the time, might not have been sufficient to make such a finding. However, the view I have taken of the other matters, cumulatively, has satisfied me that the finding should be made. The failure to disclose the conviction on the application form has not, in my view, been satisfactorily explained by the applicants. I do not accept their evidence as bona fide in relation to this matter. It was a serious breach and not justified.

22. The behaviour of the visa applicant at the Embassy on two occasions is not, in my view, excused by the fact that he was in any way justifiably emotional or even "out of control". People of good character do not intimidate public officials and make death threats against their family. The denial of these matters at the hearing has compounded the problem. Both applicants swore to tell the truth in the proceedings. On material matters, in my view, they did not. This behaviour, in relation to the visa applicant, confirms the character finding I have made.

Should discretion be exercised in favour of the application in spite of this finding?

23. Direction 21 (repeated above) which applied to this decision requires the Tribunal to have regard, at first instance, to three primary considerations:

(i) the protection of the Australian Community;

(ii) the expectations of the Australian Community; and

(iii) the best interests of the child.

24. While submitting that the drug charge could, in terms of the direction, be considered serious, the applicant pointed out to the circumstances surrounding it, to the absence of any criminal behaviour since 1994, and the amnesty, to submit that it is "very remote" that the visa applicant will pose any danger to the Australian Community by drug trafficking.

25. It was further submitted that the behaviour at the interviews was not serious because no alleged threats were carried out.

26. The respondent submitted that the visa applicant's conduct was serious and there is an unacceptable risk that his behaviour will re-occur. Further, the need for general deterrence to discourage such behaviour would be served by refusing the visa.

27. The Australian community would, the applicant submitted, be intolerant of the unfairness of the visa applicant's trial and conviction. The respondent however said the conduct of the visa applicant in the course of his application would lead the Australian Community to expect that the visa applicant not be allowed to enter Australia.

28. Both parties submitted that it will be in the best interests of the child if the visa is granted. The applicant submitted that in the event the visa is not granted the child will be deprived of the right to know and be cared for by both parents. This submission is dependent on the applicant remaining in Australia with the child. When asked about this at the hearing the applicant said:

"Q - You are not going back to Lebanon?

A - No, I said, not in the immediate future, I won't be, no".

Q - But you may go back to Lebanon?

A - It is something I must consider as a mother. I have my husband overseas and it is something I have to consider for Elissa because she can't be brought up without a father".

29. The evidence is that the visa applicant has recently purchased a house for his family in Lebanon. If the applicant decides to reunite the family in Lebanon this will be available to her. She has not ruled out a decision to return to Lebanon.

30. While accepting that the child is flourishing in Australia without the support of her father, it would, in my view, be preferable, as the mother of the child concluded, that her father be part of her upbringing. The refusal of the visa does not however preclude such a result.

31. The other evidence I have taken into account, as a secondary consideration, is considerable. I accept that the applicant, born in Australia, would prefer to live here with her family. She does, however, as the cousin of her husband, have an extensive family in Lebanon. She has part time work in Australia. Her health has improved, as has that of her child. I do not consider that there is no substantiated risk of unsuitable conduct by the visa applicant if granted the visa. As recently as the hearing of this matter the visa applicant has exhibited such conduct. The fact that he has not, to date, carried out threats is not, in my view, evidence of absence of risk that such behaviour will be repeated.

32. While educated, I do not agree that the visa applicant has exhibited, in his dealings with officers of the Australian government, the qualities of a person of good character. I have accepted the evidence of Mr Davis that the visa applicant's behaviour was not in accord with that of other visa applicants.

33. Having considered these matters and giving appropriate weight to the primary considerations required by the direction, I do not consider that the discretion, not to refuse to issue this visa in spite of the bad character findings, should be exercised. The primary consideration of the welfare of the child, does not, in my view, outweigh the countervailing considerations.

34. The decision under review is affirmed.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Justice D F O'Connor, President

Signed: .....................................................................................

Associate

Date of Hearing 23 and 24 January 2002

Date of Decision 4 February 2002

Counsel for the Applicant Michael Chahoud

Solicitor for the Applicant Walid Kalouche

Solicitor for the Respondent Nathan Cureton