Gorges and Minister for Immigration and Multicultural Affairs [2002] AATA 89 (15 February 2002)

Last Updated: 18 February 2002

DECISION AND REASONS FOR DECISION [2002] AATA 89

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1480

GENERAL ADMINISTRATIVE DIVISION )

Re STELLA GORGES

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal The Hon R N J Purvis Q.C., Deputy President

Date 15 February 2002

Place Sydney

Decision The decision under review is affirmed.

[SGD] The Hon R N J Purvis Q.C.

Deputy President

CATCHWORDS

IMMIGRATION - sublass 309 Spouse Visa - character test - past and present criminal or general conduct - false or misleading statements - aided and abetted by brother - not of good character.

Whether discretion should be exercised in visa applicant's favour despite character findings - primary considerations - protection of the Australian community - seriousness and nature of conduct - general deterrence - expectations of the Australian community - other considerations.

Migration Act 1958 - section 501

Ministerial Direction No. 21 - Visa Refusal and Cancellation under section 501 of the

Migration Act 1958

Irving v Minister of State for Immigration, Local Government & Ethnic Affairs (1996) 68 FCR 422

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

REASONS FOR DECISION

The Hon R N J Purvis Q.C., Deputy President

the application

1. This is an application made by Ms Stella Gorges ("Review Applicant") on 14 September 2000, seeking review by the Tribunal of a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Respondent") dated 22 August 2000. By such decision the Respondent refused to grant to Mr Sarkis Kako ("Visa Applicant") a subclass 309 Spouse Visa for permanent entry to Australia.

2. In the reasons for the decision, the subject of this application, it was stated (T2, p13):

"...

Over a period of some 3 years and 5 months the applicant wilfully set out on a course of deliberate deception whereby he knowingly and repeatedly presented false and misleading information to the Department of Immigration and Multicultural Affairs, abused Immigration and other laws and the associated review mechanisms. He did so at no small cost to the Australian taxpayer. Through this abuse Mr Kako was able to work and enjoyed access to Australia's health system.

...

Over the period in question the applicant's aggregate behaviour clearly demonstrates that he has little regard for the truth, Australia's immigration law or its judicial system.

After full consideration of all relevant matters I am satisfied that the applicant is not a person of good character.

Against this finding I have considered that the applicant has a spouse who is an Australian citizen. I further note that it is claimed that the applicant first met the sponsor in 1996 or 1997, the date is unclear from material held and the interview, and married in December 1998.

Mr Kako set out in October 1995 on a deliberate course to enter and remain in Australia irrespective of how much he needed to abuse and mislead Australia's immigration and judicial systems. This abuse should not be rewarded by granting Australian residence and eventually citizenship. It is not unreasonable for the Australian community to expect its prospective migrants to contribute positively to the Australian community. Mr Kako only demonstrated that he was prepared to repeatedly abuse the Australian community's generosity for genuine refugees. These actions far outweigh any possible compassionate factors.

..."

3. The Review Applicant maintains, as stated in her application, that (T1, p7):

"I believe that the Department incorrectly rejected my husband on character. The original on-shore protection and RRT appeal were completed by his then agent."

the issues

4. The issues for determination in this application are:

* whether the Tribunal is satisfied that the Visa Applicant passes the character test provided for by section 501(6)(c)(2) of the Migration Act 1958 ("the Act"); and

* if the Visa Applicant does not pass the character test, whether or not the available discretion should be exercised in his favour.

5. More specifically it is contended on behalf of the Review Applicant, that (Exhibit E):

"23. It is contended by the applicant that the delegate made a number of procedural errors in coming to her [sic] decision. The applicant contends that these errors are such that the delegate failed to take into account relevant considerations and factors in favour on [sic] the applicant.

24. The applicant contends that the delegate failed to provide procedural fairness to him, or was affected by bias in his decision making. This is supported by the failure to provide an opportunity to comment on the adverse views held.

25. The mitigating factors are such which it is contended are relevant to the occurrence of the said offences. ...The following of professional direction from Migration Agent(s) and/or representatives in light of the above are serious matters but in doing so haphazardly, does not, it is contended, make someone of bad character.

26. Mr Sarkis Kivarkis Kako present reputation in the community..."

the hearing

6. At the hearing of this application the Review Applicant was represented by Mr Alec Alexandrou, a migration agent, and the Respondent by Mr Leonard Leerdam, solicitor.

7. The documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence and marked T1 to T43. Written material tendered on behalf of the Review Applicant was also admitted into evidence and marked accordingly, namely:

Exhibit Description Date

A Statement of Ms Stella Gorges, Review Applicant 6 August 2001

B Declaration of Visa Applicant 29 October 2001

C Declaration of Visa Applicant 4 April 2001

D Letter of Mr Alec Alexandrou with six attachments to the Deputy Registrar of the Tribunal 23 April 2001

E Letter of Mr Alex Alexandrou with 13 attachments to the Deputy Registrar of the Tribunal 14 July 2001

8. The Review Applicant, the Visa Applicant and the Visa Applicant's brother, Mr Edward Kako, gave oral evidence on which they were each cross-examined.

relevant legislation and direction

9. The Act provides, with respect to refusal of a visa on character grounds, that pursuant to section 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:

"Section 501 - Refusal or cancellation of visa on character grounds

...

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

...

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

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

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

the person is not of good character; or

..."

10. It is noted by the Tribunal that the words "good character" used in section 501 of the Act have been held to refer to the "enduring moral qualities of a person". The enduring moral qualities of a person necessitate objective assessment and are to be proved as a matter of fact (Irving v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431 - 432).

11. A determination as to whether a person is, or is not, a person of good character is assisted by consideration of the various matters detailed in the Ministerial Direction issued by the Minister pursuant to the provisions of section 499(1)(a) of the Act.

12. The relevant direction under section 499 of the Act is Direction No 21, signed by the Minister and dated 23 August 2001. The Direction provides guidance in making a decision to either refuse or cancel a visa under section 501 of the Act and is to be given due consideration (Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583.

13. The Direction as here particularly relevant provides:

"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...

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...

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)(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 any evidence of rehabilitation and present good conduct.

...

Subparagraph 501(6)(c)(ii) - past and present general 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:

...

(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;

...

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... 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

....

2.5 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:

...

(c) ...providing certain false or misleading information about a marital, de-facto or interdependency relationship...or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;

...

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... are highly relevant to assessing the likelihood of an offence and risk of recidivism...

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

...

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:

...

(b) genuine marriage to, or de-facto or interdependent relationship with, an Australian citizen ...:

in assessing the compassionate claims of the Australian partner ...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)..."

the factual situation

14. The Visa Applicant was born in Syria on 1 July 1966, the Review Applicant in Australia on 19 November 1977.

15. The Visa Applicant entered Australia on 13 January 1996. He had obtained a subclass 676 visitor visa issued in Damascus/Syria on 20 December 1995. It was valid for three months after his arrival. On 27 March 1996 he applied for, and was granted, an extension of his visa to 31 October 1996. On 29 October 1996 he applied for a protection visa, the application and accompanying documentation being lodged on the day prior to the expiry of his extended visa.

16. The Visa Applicant was assisted in the preparation of the written material by Fayez Philippe Hanna of a firm known as AMI Migration Consultants. An interpreter was used in the preparation of the application, translating from the English language into the Arabic language and vice versa. His religion was noted as Assyrian Christian Catholic, his occupation as farmer/mechanic. In his reason for claiming to be a refugee, the same being in English and Arabic, and annexed to his application, and after stating "I had to pay money to get a passport and exit visa as I was detained by Syrian intelligence", he said, amongst other things (T5, pp72-74):

"...

14. I am a member of the "Democratic Assyrian Movement"; ...

15. This organisation has its international activities. However, it is prohibited in Syria and the Syrian government is trying to curtail its activities so the Assyrians would not have any organised entity to speak on their behalf on other matters other than the religious ones.

...

26. ...two policeman came and took me to Hasaka Police Station. I waited there till about noon. I was then was told that the State Security Intelligence want to question me. They refused to let contact any person. I was blindfolded and put in a car. We drove about over an hour and half.

27. The car stopped and I was taken out of it. I was still blindfolded. We entered a room because I heard the door being closed. Then I felt hits and kicks coming from everywhere. I was not prepared for this sudden beating. It was very painful as I did not know from where the hits was coming. More that one person were beating me, some with sticks and some with rubber hoses. I cried and asked them why are you beating me. Nobody answered. In the same time I was thinking about what I heard about the mistreatment of the Syrian Intelligence. My destiny was dark and chances of getting out are nil, and I lost conscious.

28. When I regained my conscious, I found that I am still blindfolded and handcuffed, lying on the floor, and I heard some telling me in a kind voice: "How do you feel". I replied that I did not do anything to deserve such beating. Someone pulled me and made me sit on a wooden chair. He told me that was the way the guards welcome the newcomers, I did not have to worry about this anymore. He told me: "We just want some simple information and if you reply truthfully you will return to your home and family straight away, if not, we our own ways to address that".

29. He told me to tell him about the name of the persons who were with me at the dam. I replied that I did know any of them. I felt heavy slap on my face. The officer repeated the question and I repeated the same answer. I felt another severe slap on my face. I assured him that I was alone. I felt another slap on my face. The officer repeated the question for the third time. However, I did not reply for fear of being hit. He called a soldier and told him to take me to the "Torture chamber" and to bring me the next day.

30. I was taken to another place where I was pushed into a car tyre. The present persons started to hit me until I lost conscious.

31. I knew that my life and the lives of my family and others depend on not telling the Intelligence anything. The same officer interrogated me several times under severe beating and torture. I kept saying that I did not know any person.

32. They kept me in a cell by myself. Each day they took me to the bathroom and remove the handcuffs. Then they push inside and tell me to use the bathroom and not to remove the blindfold because they ware watching me. I stayed there for one week. In the mornings, or what I think it is morning, they bring a loaf of bread and a plastic cup of warm tea. In the evening, they bring a loaf of bread and a bowl of soup.

33. I was released after I signed an undertaken that I will never involved myself in any anti government activity. This document was signed at Hasaka Police Station where they took me there to be released.

34. After my release, my main concern was to get out of this satanic country. I contacted my brother in Australia and get. Some friends arranged for me to get the passport. The same person arranged for the exit visa. I paid US 500 (he insisted on American currency)."

17. The application for a protection visa was refused on 18 June 1997. In the decision record the delegate for the Respondent inter alia stated (T8, pp94 and 96):

"...

3.4.1 I do not accept that the Assyrian Christians are being systematically persecuted as the applicant claimed...

...

4.1 I find that Mr Sarkis Kako is not a person to whom Australia has protection obligations under the Refugees Convention as there is not a real chance of Convention based persecution if he is returned to Syria and that his fear of persecution on return is consequently not well founded.

..."

18. The Visa Applicant applied to the Refugee Review Tribunal for review of the latter decision. In the course of her reasons for decision, the member, after reciting the claims made by the Visa Applicant in the above mentioned annexure to his original application, made mention of oral evidence given at the hearing before that Tribunal by the Visa Applicant, namely (T9, pp103-105):

"...

The applicant was asked at the Tribunal hearing whether he had experienced any problems from the Syrian authorities when he was growing up. The applicant said that there had always been problems because he lived in an Assyrian Christian community among Muslim Syrians. The applicant did not specify particular problems or provide instances of discrimination.

...The applicant was asked why he thought he was mistreated. He said it was because he was Assyrian. The applicant was asked about any other harm he experienced while in the army. The applicant said he had been goaled 3 or 4 times...

The applicant said that the police... came to his home and took him to Hassake prison. He said that a couple of hours later he was blindfolded and driven away in a car by officials who were not the local police but could have been the Security Services or the Intelligence. The applicant said that he was kept in his imprisonment for about 10 days. He said that he was beaten up and interrogated about the Assyrian Democratic Party. The blindfold was not removed for the entire period he was in goal and he did not know where he was.

The applicant said that after 10 days he was taken in a car to the outskirts of a village and then put out of the car and his blindfold removed. He said that he walked into the village where he had some Assyrian friends and they drove him home. The applicant said he couldn't remember when this took place.

The applicant said that he was very frightened by this experience and was resolved to leave Syria...

The applicant said if he goes back to Syria he is afraid he will be put in prison because he ran away. ...The applicant said that he knows of people, fellow members of the Assyrian Democratic Party, who were arrested both while he was there and after he left. He fears he will be arrested because of his membership of the party.

..."

19. In its findings, the Refugee Review Tribunal expressed having "some difficulty with the Applicant's credibility" and noted dissatisfaction with portions of the Visa Applicant's evidence. The decision not to grant a protection visa was affirmed by that Tribunal on 22 April 1998.

20. The Visa Applicant by himself and the above mentioned migration agent then applied, pursuant to section 417 of the Act, for ministerial intervention, relying upon the same alleged factual situation. The Visa Applicant retained a firm of solicitor's to make representations on his behalf. The earlier allegations were repeated and summarised in a contention that he "has himself experienced persecutory treatment in that country, which makes him fear returning to Syria" (T13, p115). Exercise of the ministerial discretion was declined by the Minister in July 1998.

21. On 14 December 1998 the Visa Applicant and the Review Applicant were married at the Fairfield Local Court.

22. On 16 February 1999 the solicitors acting for the Visa Applicant again wrote to the Minister and, whilst primarily then relying on "compassionate" grounds, maintained the "evidence" previously given by the Visa Applicant to the Respondent and the Refugee Review Tribunal. The Minister declined to take further action. Bridging visas were granted to the Visa Applicant, he finally leaving Australia on 15 June 1999. The present application for a subclass 309 visa was lodged in Beirut/Lebanon on 17 June 1999.

23. The Visa Applicant was interviewed in Damascus by an officer of the Respondent on 14 April 2000. Prior to the interview and in preparation for it, officer's of the Respondent summarised the allegations of the Visa Applicant as (T19, p124):

"...

Mr Kako claims to be a member of the Democratic Assyrian Party.

Mr Kako spoke to foreign delegates about the Dam in the Khabour River. As he spoke to these officials, a police officer noticed this and took his ID and wrote some details.

A week later, two policemen took him to Hasaka Police Station, as the State Security Intelligence Unit wanted to question him, and Mr Kako wasn't allowed to contact anyone.

Apparently Mr Kako was blindfolded and taken away in a car. Afterwards the car stopped and Mr Kako felt hits and kicks come from everywhere. "More than one person were beating me, some with sticks and some with rubber hoses." According to Mr Kako he stated that he lost conscious.

Upon regaining his conscious, Mr Kao [sic] found that he was still blindfolded and handcuffed lying on the floor. He was also interrogated several times - as his kidnappers wanted to know who he was with at the Dam. This interrogation and he being detained lasted about a week.

Mr Kako was released and signed an undertaking that he will never involve himself in any anti-government activity, this document was signed at Hasak [sic] Police Station.

..."

24. Notes made of questions asked and of answers provided by the Visa Applicant at the interview in April 2000 disclosed a litany of untruth supportive of his earlier applications. Inter alia the notes read (T27, p172):

"U/stand what a refugee is? Yes. What is a refugee? No answer.

Is this what you applied for? Yes.

Claims? The lawyer wrote something, he only signed it. What was in the application?

That he was a member of the Assyrian Party. Is this true? No. Where did he get the idea? The lawyer told him what to write. But he can/t write!! The lawyer wrote it for him.

Ever arrested? No

Detained? No

Persecuted? No answer.

Ever have any difficulties with the Syrian Govt? No

What was purpose of the application? I liked the country & wanted to stay.

Read what the lawyer wrote? No.

Know what was in the application? Yes, Angela is Assyrian she read it to him.

Was it true? No.

Result of application? Rejected. Why? Don' know.

Then what? Married

Before then? What?

Did you appeal? Yes.

Why? Lawyer told him to.

Know what was in the appeal? No, the lawyer did it all.

Result? Refused.

Why? Don't know.

Any trouble getting a Syrian passport? No

Any problem getting exit permission? No

Any problems or difficulties since return? No

Why appeal? Lawyer said only way he cld stay.

Said earlier is farmer, 47 says mechanic, why? He worked in Australia as mech with brother. Permission to work? No answer. Know not permitted to work on v/v or v/v extension or BVE? No answer.

Any truth in the claims? No

Was intent to remain in Australia? Yes.

Was intent in applying for v/v to stay in Australia? Yes

Whose idea was to apply for PV? Brother & the lawyer.

Why abuse the PV system to stay when not a refugee? No answer

Marry to stay in Australia? No

Met where? Assyrian club.

When? 1997. Date? Don't know.

Why have civil marriage if both from same confession & neither previously married? No answer.

Her work? Don't know."

25. In his written personal declaration of 4 April 2001, in Arabic (with an English translation) (Exhibit C) tendered at the hearing before the Tribunal, the Visa Applicant stated:

"...

While in Australia in 1997 I hired an immigration agent to prepare and present my case.

All the issues raised in support of my application for protection visa (PV) 1997 were not explained properly to me by the Migration Agent who assisted me at that time. The whole idea and misinformation were supplied by the agent and I reluctantly [another translation: "hesitant about telling these incidents"] recited everything I was told to say as I was told that "it was the only way" to obtain a visa by that issue.

...

I sincerely apologize for being naïve and saying things without fully understanding them thoroughly."

26. In a further declaration of 20 October 2001, also in Arabic (with an English translation) (Exhibit B), the Visa Applicant stated:

"I, the undersigned, Sarkis Kifarkis Kako, being legally competent, do hereby declare that the lawyer (my attorney) is the person who prepared the documents without explaining their contents to me, and later on and after they were sent to the Department of Immigration I had an idea about the contents of those documents and I knew that what he has written wasn't true and I absolutely don't declare that.

The truth is that he promised me to stay in Australia with my brothers who conduct a good [business] under the provisions of Family Reunion Category; but I was surprised to discover that his promises were false and his intention was to extort me [another translation: "embezzle"]. In witness whereof I set my signature hereunder."

27. In his evidence at the hearing before the Tribunal, the Visa Applicant said that he tried to remain in Australia as he found "its a good place and plenty of work".

as to the character of the visa applicant

28. The Visa Applicant sought before the Tribunal to cast full responsibility for his false statements upon his migration agent and/or his solicitor. He said in his evidence in chief that he was not aware that an application was made for a protection visa on the ground that he was a refugee. He said he had "no idea" what the "solicitor" was doing, and even though he signed the forms including the Arabic annexure, he had "no idea what was written on it". As to the ministerial requests "we had no idea what the solicitor was doing".

29. In the course of his cross-examination the Visa Applicant:

(a) acknowledged that the declaration of 20 October 2001, prepared after the first day of hearing before this Tribunal, was consequent upon his discussing the case and the proposed contents of the statement with his brother, who had already given evidence;

(b) said that the annexure to his protection visa application was read over to him by "the solicitor", even be it he signed the document before it was so read over; and

(c) said he knew the material lodged with the Respondent was false prior to his attending the hearing before the Refugee Review Tribunal.

30. The Tribunal does not accept the Visa Applicant or his brother as witnesses of truth. They colluded in preparation of the declaration of 20 October 2001. They colluded in preparation of the false allegations contained in the annexure to the protection visa application and were aware of its contents before it was lodged. The Visa Applicant maintained the falsities through the Refugee Review Tribunal review process and the ministerial intervention applications. The declarations of April 2001 and October 2001 exhibit a continuance of the conduct of the Applicant in making false statements in a migration context.

31. The Visa Applicant over the whole of the time he lived in Australia, except perhaps for the first six months, and in his relations with the Respondent, engaged in a litany of falsehoods with the clear intent of misleading the authorities charged with maintaining the migration law. He now seeks to cast blame on his migration agent and his lawyer. They may have been implicated but there is only the Visa Applicant's evidence, and that of his brother, to this effect. They carry little weight. At all times the Visa Applicant knew what was being alleged and did not, until the interview in April 2000, seek to withdraw or reveal the falsities. The responsibility is his and so are the consequences.

32. "Character statements" from 18 persons were tendered at the hearing (Exhibits D and E), five of such statements being in the form of:

"I hereby confirm, that I have known Mr Sarkis Kako for a period of over __ years and have found him to be of good character, honest and trustworthy.

Mr Sarkis Kako has been a very understanding acquaintance, caring and always reliable, with a very strong personality.

I therefore, fully support his current application to migrate to Australia, and wish him all the best in all his endeavours."

33. The remaining 13 statements were in the form of:

"I hereby confirm, that I have known Mr Sarkis Kako for a period of over __ years and have found him to be of good character, honest and trustworthy.

I am aware of Mr Kako's past immigration history and truly believe he would not act in such a manner again. His past actions are fundamentally out of his normal character.

I attest and unequivocally believe and have faith in his good character and convey that he has remorse over his past actions and will not do anything like this again. I am certain he is now very apologetic and seeks an opportunity to right the wrongdoings of his recent past in this matter.

It is with this personal statement and commitment that on his behalf I seek whatever opportunity that may be given to him to rejoin his wife and commence his life with her in a manner that may respond positively and make amends for this past action.

I therefore, fully support whatever may be sought of him to recompense and reinstate faith in his person by the authorities to enable him to rejoin his wife and make Australia their permanent homes."

34. It is of note that the Visa Applicant did not, either in his written documentation or his oral evidence, convey "remorse over his past actions" or appear "very apologetic". Whilst the 13 persons stated that they were "aware of Mr Kako's past immigration history" none of them stated what that "immigration history" in fact was. There was not any evidence as to any of the persons being aware of the falsities perpetrated by the Visa Applicant.

35. The "character statements" at there highest are subjective assessments of the Visa Applicant. But as earlier expressed in these reasons, the Visa Applicant's character is to be determined as a matter of fact based on his conduct. It is to be an objective assessment. There was not any evidence, apart from the above mentioned statements, as to the Visa Applicant being:

* honest and trustworthy;

* caring and reliable;

* remorseful "over his past actions" or apologetic.

Nor was there any evidence of the extent to which the 13 persons were aware of the "past immigration history" of the Visa Applicant.

36. As has been said by the Tribunal on a number of occasions, the effective administration of the Act and Regulations is dependent on the Respondent being provided with truthful and correct information by Applicants desirous of obtaining entry to Australia. Those who practice deceit and perpetuate falsehoods are not deserving of favourable consideration. Those who encourage or participate in such improper conduct are to realise that the same can be of a criminal nature and they may well be found to have aided or abetted the same and be accordingly liable.

37. Objectively the Visa Applicant is, on account of his conduct both past and recent as detailed in these reasons, not of good character.

hardship to the review applicant

38. No issue was raised as to the genuineness or otherwise of the relationship between the Visa Applicant and his wife, the Review Applicant. She was aware at the time of the marriage that her husband-to-be would have to leave Australia. She says that she did not ask him as to why he had to leave, "I did not want to know" she said. "I only knew he was not accepted as an Australian citizen". "I wanted to get married. He promised he would be back".

39. There was no question, she said, as to her "going to live with him in Syria". She only became aware of the refugee application after marriage. She never asked him why he sought to be classified as a refugee.

40. The Review Applicant said she wants to be with her husband. She speaks to him once a week by telephone. She has travelled to Syria to spend time with him. However, she does not want to leave Australia and would not leave this country to live in Syria on a permanent basis. She is presently living with her parents in a house that they recently purchased.

family disposition

41. Apart from the Review Applicant, the Visa Applicant has relatives living in Australia, namely two brothers and their families. In Syria the Visa Applicant has his mother, a brother and two sisters.

42. Mr Edward Kako, a brother of the Visa Applicant living in Australia, and an Australian citizen, was sponsored by his first wife to migrate to Australia. They married in 1985 and where divorced four years later. There are three children of that marriage. Mr Kako has re-married and sponsored his present wife to migrate to Australia having known her in Syria.

43. Mr Kako knew the migration agent who assisted his brother, the Visa Applicant, through his business contacts. He is a mechanic by trade. About $2000 was paid for the assistance. They had "a couple of meetings". Mr Edward Kako was aware that his brother was claiming to be a refugee, this being the only way "to get him to stay here permanently". It was he who "told" the Visa Applicant to appeal to the Refugee Review Tribunal. He knew he said in his evidence that the claims supportive of the refugee application were not true but "the application had already been filed". He did not, he said, advise his brother to withdraw the application or not to appeal. At that time "I was prepared to do what was possible to have him stay with us".

44. In the course of his cross-examination Mr Kako declined to say whether or not his brother had told him that he had been ill treated, beaten or tortured. An adverse inference is open to the Tribunal. The Tribunal finds that Mr Edward Kako was aware of or believed that the allegations so made by his brother were false.

45. The Tribunal is satisfied, on the basis of the evidence before it, that Mr Edward Kako was a participant in the preparation and lodging of the false refugee application and in maintaining the pretence through the review procedures. At no time did he attempt to discourage his brother from maintaining the falsities. It may be, if he had done so and his brother had recanted, that the discreditable conduct of the Visa Applicant could have been seen by the Respondent and this Tribunal in a more favourable light. But that is not to be the case.

46. There was not any helpful evidence as to the family circumstances of the other brother living in Australia.

relevant discretionary considerations

47. As earlier mentioned in these reasons, the Tribunal is to have regard to Direction 21 of the Minister and to a number of primary considerations and other factors. The protection of the Australian community and members of it is a primary consideration. In this regard the Tribunal notes the seriousness and nature of the conduct in which the Visa Applicant engaged. The Tribunal has earlier indicated the view that it takes of endeavours to mislead the migration authority and its officers. There is no reason to believe that the Visa Applicant would not again engage in the manufacture of false information. The Visa Applicant sought to put blame on the migration agent and/or "the solicitor" for structuring the falsities. There is not any credible and acceptable evidence to this effect. As earlier stated, the Tribunal does not accept the evidence of the Visa Applicant or his brother. However, refusal of the grant of a visa to the Visa Applicant will send a clear message to those advising prospective applicants that the truthful presentation of material is not only desirable but also necessary and essential. The false and misleading statements made by the Visa Applicant are serious and could constitute the commission of an offence under the Act.

48. It is the expectations of the Australian community that people in the position of the Visa Applicant should obey the laws of this country whilst they are residing here. It is not an expectation that those who do not obey the laws should then be allowed to enter the country, let alone enter the country with the intent of permanent residence. The breaches by the Visa Applicant were not isolated, they occurred over most of the period he was in this country. He continued his falsity even up to the time of the hearing.

49. Consideration is to be given to other factors. The Visa Applicant has the above mentioned relatives living in Australia but apart from his having worked for, and with, his brother whilst he was in Australia, there is no evidence of his having any significant tie with the country other than with his wife. Mention has already been made of the circumstances in which the Review Applicant and the Visa Applicant met and of the marriage taking place at a time when the Review Applicant was well aware of the Visa Applicant's migration status. Hardship will be experienced by the Review Applicant if her husband is not permitted to enter Australia. She has said that she would not live permanently in Syria. This is a factor, which is to be taken into consideration. Any emotional hardship that the Visa Applicant will suffer must, as was submitted on behalf of the Respondent, be discounted heavily by the fact that he entered into the marriage with full knowledge that he had exhausted his attempts to remain in Australia. The Review Applicant also entered into the marriage with knowledge of her husband's migration status.

50. Mention has previously been made of the constitution of the Visa Applicant's family in Syria.

51. The Respondent submitted that the Australian community could legitimately expect that the Visa Applicant should not be allowed to enter Australia because he has deliberately engaged in a course of conduct of abusing the migration laws during the period of his residency. The concerns of the Australian community warrant a strong deterrent message being sent to any non-citizens contemplating engaging in such immigration malpractice. Abuse of the migration law does not warrant a perpetrator becoming a resident of this country. The Tribunal adopts these submissions made on behalf of the Respondent.

submissions and decision

52. As earlier indicated in these reasons, the representative for the Review Applicant raised a number of matters said to be "at issue" in these proceedings. However, whether the delegate made procedural errors or not is irrelevant to a final determination of this matter by this Tribunal. The Tribunal is required to consider the matter de novo, placing itself in the shoes of the Minister or his delegate. Whether or not procedural errors were made by the delegate, and the Tribunal does not find any such errors to have been made, is of no moment. The Tribunal receives relevant material and on the basis of that material is required to make the correct or preferable decision.

53. Likewise, an absence of procedural fairness or the presence of bias, neither of which are found by the Tribunal to have been established, would be of no moment. The Tribunal is to make its own findings and reach its own decision in the matter.

54. The Tribunal does not accept what were described as "mitigating facts" being the part played by the migration agent and a solicitor as nullifying the consequences of the Visa Applicant's conduct. Even be it, which has not been established, that the Visa Applicant did follow the direction of the migration agent and/or a solicitor, it is the Visa Applicant who made the false representations. It is the Visa Applicant who acted in breach of the Act. It is the conduct of the Visa Applicant which reflects adversely upon his character. It was said that the Visa Applicant is well reputed "in the community". The weight to be given to the various "character statements" has already been dealt with in these reasons.

55. The Tribunal is satisfied that the Visa Applicant is not of good character on account of his past and more recent conduct. The primary considerations and other factors that are required to be considered by the Tribunal are, other than for the position of the Review Applicant, ones which are determined adverse to the Visa Applicant. There was and is an absence of remorse or sorrow on the part of the Visa Applicant for his wrongful behaviour. His only remorse is in coming to Australia, meeting his wife and not being able to live with her in Australia on a permanent basis.

56. The Tribunal is satisfied that it should not exercise its discretion in favour of the Visa Applicant, this on account of the various matters earlier dealt with in these reasons.

57. Accordingly the decision under review is affirmed.

I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis Q.C., Deputy President

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

Associate

Dates of Hearing 20 September 2001 and 16 January 2002

Date of Decision 15 February 2002

Representative for the Applicant Mr Alec Alexandrou

Solicitor for the Respondent Mr Leonard Leerdam