Kalache and Minister for Immigration and Multicultural and Indige nous Affairs [2003] AATA 999 (3 October 2003)

Last Updated: 17 October 2003

DECISION AND REASONS FOR DECISION [2003] AATA 999

ADMINISTRATIVE APPEALS TRIBUNAL )

) N2003/160

GENERAL ADMINISTRATIVE DIVISION	)
	Re	Silvana Kalache

Applicant

And

Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal

Mr RP Handley, Deputy President

Date 3 October 2003

Place Sydney

Decision

The Tribunal affirms the decision under review.

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

RP Handley

Deputy President

CATCHWORDS

IMMIGRATION - subclass 309 spouse visa - character test - whether the Visa Applicant passes the character test - examination of the Visa Applicant's criminal record - Visa Applicant's criminal record is substantial - Visa Applicant fails the character test - discretion that the Tribunal may apply where the Visa Applicant fails the character test - necessity to balance the expectations and protection of the Australian community against the hardship caused to the Applicant - held the primary considerations outweigh any hardship to the Applicant - decision of the Respondent is affirmed.

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

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

Re Stella Gorges and Minister for Immigration and Multicultural Affairs [2002] AATA 89

REASONS FOR DECISION

3 October 2003

Mr RP Handley, Deputy President

1. This is an application by Silvana Kalache ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Respondent") made on 25 November 2002 to refuse the grant of a subclass 309 spouse visa to the Applicant's spouse, Elie Rafic Chamoun ("the Visa Applicant").

2. At the hearing of this matter, the Applicant represented herself and the Respondent was represented by Greg Peek, Solicitor, of the Australian Government Solicitor's office. The documents before the Tribunal comprised those documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents") together with the documents tendered by the parties at the hearing. Oral evidence was given by the Applicant, her mother Rose Kalache and her sister Georgina Kalache. The Visa Applicant gave evidence by conference telephone from Lebanon.

Background

3. The Applicant, Silvana Kalache was born in Sydney on 6 June 1978 and is aged 25. She is an Australian citizen. Ms Kalache is employed as a Duty Supervisor at the Parramatta Leagues Club.

4. The Visa Applicant, Elie Rafic Chamoun, was born in Zahle, a town in Lebanon, on 10 November 1975 and is aged 27 (T p40). Mr Chamoun resides in Beirut, and has never been to Australia.

5. Ms Kalache first met Mr Chamoun in April 1987 when she went to Lebanon, to visit her relatives who live in Zahle (T p61). At the time, they were both children and spent time playing together (T p54). In May 1996, Ms Kalache returned to Zahle, where she stayed for three months. During this time, Ms Kalache and Mr Chamoun commenced a relationship (T p12). They also discussed the prospect of marriage but decided that they were both still too young (T p61).

6. On 8 January 1997, Mr Chamoun was arrested and charged with possession of cannabis. He was unable to post the required bail and was held in detention pending trial. He alleges that, while in detention, he was tortured and made a confession under duress that he had been involved in trafficking in hashish and cocaine (T p99). On 5 January 1998, in the Criminal Court of Mount Lebanon, Mr Chamoun was convicted and sentenced to three years imprisonment with hard labour for a drug related offence (T pp34 and 94). Mr Chamoun was released from prison in August 2000.

7. Between 1995 and 2001, Ms Kalache and Mr Chamoun maintained their relationship by writing letters, speaking on the telephone and sending video messages (T p61). In about June 2001, Ms Kalache returned to Lebanon and on 1 September 2001, Ms Kalache and Mr Chamoun were married at Ajaltoun, Lebanon (T p42). Ms Kalache returned to Australia three weeks later in order to resume work.

8. On 16 April 2002, Mr Chamoun lodged an application for a subclass 309 spouse visa at the Australian Embassy in Beirut (T p110). He was interviewed by a Principal Migration Officer, Allan Davis, on 25 November 2002 (T p99). On 25 November 2002, Mr Davis, a delegate of the Respondent, decided to refuse the grant of a visa to Mr Chamoun on the ground that he did not pass the character test because of his substantial criminal record (T p99). On 30 January 2003, Ms Kalache lodged an application for a review of this decision with the Tribunal.

Relevant Law and Policy

9. Under s 501(1) of the Migration Act 1958 ("the Act"), the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds are met. The relevant grounds in the current matter are paragraphs (a) and (c), as follows:

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

(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; ...

"Substantial criminal record" is defined in s 501(7) to include a person who "has been sentenced to a term of imprisonment of 12 months or more".

10. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) "does not empower the Minister to give directions that would be inconsistent with this Act or the regulations"..

11. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it "provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501" of the Act. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

12. In the present case, Mr Chamoun does not pass the character test because of his "substantial criminal record", having served a term of imprisonment of three years. As the Full Federal Court said in Minister for Immigration and Multicultural Affairs v SRI (1999) 91 FCR 234 at 244, it is not the role of an administrative tribunal to impugn a sentence imposed by a court. The issue, therefore, is whether the Tribunal should exercise the residual discretion under s 501(1) to decide, nevertheless, not to refuse the grant of a visa.

Evidence

Silvana Kalache (the Applicant)

13. Ms Kalache said her parents migrated to Australia from Lebanon. Her father arrived first and, after five years in Australia, returned to Lebanon to marry, bringing his wife to live in Australia. Ms Kalache, who was born in Australia, is one of four children: Georgina is 28, Fred is 27, Ms Kalache is 25 and Nicole is 22. Both parents and children are Australian citizens. With the exception of Ms Kalache, none of her siblings are married. They are all currently living at home with their parents.

14. Ms Kalache said she has been to Lebanon on a number of occasions:

* In 1987, at the age of nine, her mother took Ms Kalache and her younger sister to Lebanon to see her mother's family who live in Zahle. On that visit, Ms Kalache met Mr Chamoun who was three years older than her.

* In about 1991, aged 12, Ms Kalache went to Lebanon to stay with her grandparents in Zahle. Once again, she met Mr Chamoun.

* In about 1994, aged 16, Ms Kalache visited her mother's family in Zahle. Mr Chamoun was then living in Jounieh and they met up again about three days before Ms Kalache left Lebanon to return to Australia. They began to exchange letters.

* In 1996, aged 18, Ms Kalache again visited Lebanon. After visiting her family in Zahle, Ms Kalache commenced a relationship with Mr Chamoun, living with him for approximately three months in a chalet in Jounieh. Ms Kalache said she told her mother what she was doing. At that time, Mr Chamoun was working in a nightclub as a waiter. About two or three days before Ms Kalache was due to leave Lebanon when she was going to Zahle to say goodbye to her family, Mr Chamoun proposed to her. She told him that she was not ready to marry and asked him to wait. Approximately four months later, Mr Chamoun was arrested on a drugs charge and detained. Ms Kalache was upset because she knew nothing about his use of drugs. Drugs were never mentioned when they were together.

* In 1999, aged 21, Ms Kalache visited her family in Zahle and, while she was there, she visited Mr Chamoun in prison. Through his period of imprisonment, they continued to exchange letters. Ms Kalache said she also found some letters addressed to her which Mr Chamoun had sent care of her grandmother's house in Zahle but which her grandmother had not forwarded to Ms Kalache.

* In about June 2001, aged 23, approximately nine months after Mr Chamoun had been released from prison, Ms Kalache went to Lebanon with her sister Georgina and, on 1 September 2001, Ms Kalache and Mr Chamoun were married. She thought of working in Lebanon but was unable to find anything suitable. Ms Kalache therefore returned to Australia to resume her employment with Burwood RSL Club.

* In April 2002, Ms Kalache went to Lebanon and she and Mr Chamoun lived together in Zahle until June 2002. After Mr Chamoun had dropped her at the airport for her return flight to Australia, he was driving home when he was stopped by the army who checked his registration papers and told him that he had one month within which to register for national service. He did as he was required to do and commenced his national service on 2 August 2002. He will finish this in August 2003.

15. Ms Kalache said Mr Chamoun's mother died when he was aged seven and he was brought up by other family members in Zahle. His father moved to Jounieh which is about one and a half hours drive away. Ms Kalache said she and her husband communicate in English. She knows a little Arabic but would need a phrase book to get by, for example, if she went shopping. Her husband was working as a builder when they were living together in Zahle between April and June 2002 and intends to get back into building after he has completed his national service.

16. Ms Kalache said she was employed as a hospitality attendant at Burwood RSL Club until about a year ago. Since August 2002, she has been working as a Duty Supervisor at the Parramatta Leagues Club and is also doing some casual work as a Duty Supervisor at the Haberfield Rowers Club. Ms Kalache said if her husband is not granted a visa, she will go to Lebanon to live with him. She hopes she will be able to find work.

17. Ms Kalache was asked about the letters Mr Chamoun wrote to her while he was in prison in about 1999 (A1). She said some of the letters are in her husband's handwriting but some are in the handwriting of an American friend who helped Mr Chamoun with the composition of the letters. Several of the letters contain messages from this friend. Ms Kalache said although her husband speaks good English, he wanted to make his letters sound as good as possible. Generally, Mr Chamoun would write her about one letter a month while he was in prison but during her visit to Lebanon in 1999 he wrote her about four or five letters a month. Some of the letters were forwarded to her by a nun who collected them from the prison and others by a friend of Mr Chamoun's who worked for Middle Eastern Airlines and collected the letters for forwarding to Ms Kalache. When Mr Chamoun lodged his spouse visa application on 16 April 2002, he provided copies of letters and wedding photographs with the application but they told him that they did not wish to keep these. Mr Chamoun still has the originals with him in Lebanon.

18. Ms Kalache said her husband was arrested because he had a small amount of cannabis in his possession. Mr Chamoun told her that he was arrested because he had some "hashish" on him. While Mr Chamoun was being detained by the police after his arrest, he was beaten and tortured and signed a confession statement under duress. He told her about this before going to the interview with Allan Davies at the Australian Embassy in Beirut. On arriving for the interview, Mr Chamoun saw a letter in Mr Davies' office which he thought was a copy of the confession statement he had signed under duress. Since Mr Davies appeared to have a copy of the statement, Mr Chamoun thought he should stick to the same story so that his account was consistent even if it was not true. Ms Kalache was uncertain as to the exact nature of the offence on which Mr Chamoun was convicted. The record of his conviction has been translated as recording it was a conviction for a crime concerning narcotics (T p34) or drugs (T p94).

19. Ms Kalache was asked about an offer of employment from Tony Sarkis of T & S Plastering dated 26 February 2002 (T p63). She said Mr Sarkis is a relation of hers and a friend and is aware that Mr Chamoun has been imprisoned. Ms Kalache spoke to Mr Sarkis yesterday and she has confirmed with him that his offer of employment for Mr Chamoun is still current.

Elie Rafic Chamoun (the Visa Applicant)

20. Mr Chamoun said he was born in Zahle where he lived until the age of about 14. His mother died when he was aged about seven. When his father remarried, he and his brothers and sisters went to live with his father and stepmother in Jounieh. He went to school until about the age of 15 and then started working in restaurants as a waiter. He had a number of jobs but ended up working for his uncle in the building industry at the age of about 18. He intends to return to this when he has finished his national service in August 2003.

21. Mr Chamoun said he first met his wife when they were children and she was visiting her family in Zahle who were neighbours of his family. He was about 14 and they used to say hello. However, he only really first talked to her when he was 19 by which time he was living in Jounieh but still used to visit his family in Zahle at weekends.

22. Mr Chamoun said he lived with his parents until the age of about 21 when he moved into a chalet where he lived by himself until the time that he was arrested. The chalet belonged to the owner of the chain of restaurants/nightclubs called Colour City where he worked as a maintenance/handyman and casual waiter. He usually worked Monday to Friday as a builder and then on Saturdays and Sundays he worked casually as a waiter.

23. In about 1996/1997, the Lebanese government had a crackdown on drugs and one night the police entered the club where he was working and arrested about five of the employees including himself because, at that time, he had a small amount of cannabis in his possession. He had this for his personal use - he used to smoke some after he finished work.

24. Mr Chamoun said after his arrest and detention by the police, he endured a month of daily beatings and police interrogation during which he was accused of profiteering and distributing drugs. He remembers one occasion when he was beaten unconscious and, when he awoke on the floor, someone was urinating on him. He told those who were interrogating him that he would tell them whatever they wanted to know in order to stop the bashings. He therefore made up a story that he was a drug dealer and signed a confession statement setting this out. Mr Chamoun said in a statement dated 25 July 2003 (A2) that "under no circumstances have I ever sold nor profited from drugs".

25. Mr Chamoun said as a result of being beaten on the feet, he was unable to walk properly for about a month. He also had severe pain in the region of his neck and bruises all over his body. He was treated by a first aid officer at the detention centre who, on one occasion, put him on a drip in the small clinic there which had two beds. He remained in the clinic for about 18 hours.

26. After he had made the confession in about the middle of March 1997, Mr Chamoun was taken from the detention centre to Roumieh Prison. The other employees who were arrested at the same time as him at the club were given bail but he was unable to provide the surety required.

27. At his trial, Mr Chamoun said he told the judge of the beatings and bashings which he had received and his lawyer produced medical evidence as to bruises on his body. However, those whom Mr Chamoun named as having been involved in the beatings denied this and the judge, who had heard similar claims before, did not believe him. Also, he was tried with four or so other people and the judge dealt with them altogether. Mr Chamoun was sentenced to three years in prison instead of a possible seven years as a result of his having been strongly defended by his lawyer. Of the other employees from the club, all were convicted. One was given a heavier sentence and the others the same sentence as him.

28. Mr Chamoun said that while he was in prison he used to exercise to keep fit and he read a lot. He used to write to Ms Kalache and she to him. He provided copies of these letters to the Australian Embassy with his visa application in order to prove the genuineness of their relationship.. Generally, Mr Chamoun used to write at least once a month from prison when he had someone to take the letter for him. All letters had to be vetted by the prison authorities. He used to get help with writing his letters in English from a friend who spoke good English. The friend would help him compose the letter and Mr Chamoun would then copy the letter out in his own handwriting. However, he could not recall if all the letters were in his handwriting - some of them might have been in his friend's. Mr Chamoun sent the letters to Ms Kalache in Australia, sometimes via a third person such as a family friend travelling to Australia, who acted as a courier.

29. Mr Chamoun said Ms Kalache came to visit him in prison on one occasion and he told her then that he did not deal in drugs but had just smoked a cannabis cigarette occasionally. He told her how he had confessed to being a drug dealer after the beatings and bashings.

30. After Mr Chamoun was released from prison in August 2000, he resumed working for his uncle as a builder. Mr Chamoun said he had been in love with Ms Kalache since before he was arrested. He first proposed to her when he was about 20 when they went out to dinner one evening. She said she could not give him an answer then because she needed time to think about it. She was then 17. This took place in 1996 when Ms Kalache came to Lebanon with her parents to visit their family. After her parents left to return to Australia, Ms Kalache stayed on and lived with him in the chalet for about three months. He remembers this because she had to be 17 to go into a nightclub.

31. After he was released from prison, Mr Chamoun told Ms Kalache that he needed time to get things together and then they could consider getting married. About six months after his release from prison, he asked her again and she said yes. By this time he had a good job and was making good money. He promised her that he would be a good man. However, he was aware that she would have trouble adjusting to life in Lebanon and in obtaining work, so he told her that he would leave it to her to decide as to where they should live. After they got married, they decided that they should try and move to Australia and so he sold all his tools.

32. Mr Chamoun was asked about his interview with Allan Davies at the Australian Embassy in Beirut on 25 November 2002. When Mr Chamoun entered the room, Mr Davies told him that he knew everything about him and he must tell him the truth and why he was in prison. Mr Chamoun noticed some papers on Mr Davies' desk, which looked like his confession statement obtained under duress at the detention centre in March 1997. He was confused as to what he should say and decided to stick with the story he had made up under interrogation so as to appear consistent. Mr Chamoun acknowledged that this was a mistake and he should have told Mr Davies what happened. He was worried that Mr Davies, like the judge, would not believe him. Mr Chamoun acknowledged that he also told Mr Davies as he had told the detectives, that he has been on his own since the age of 12. He originally told the detectives this to gain sympathy and in the hope of this reducing his sentence.

33. Mr Chamoun said he did not feel comfortable with Mr Davies. During the interview, which was conducted using an interpreter, Mr Davies made notes as to what was said and Mr Chamoun said he thought Mr Davies' record of interview was accurate. It is true that when he was young he did try to sell corn from a cart but the police stopped him because he was not allowed to do this on a main street. After the interview with Mr Davies, when he told his wife what had happened, she said he should have told the truth.

34. In his statement (A2), Mr Chamoun said he wants to start a new life with his wife in Australia and has a responsibility as a husband to love and support her. They hope to start a family and Australia has more opportunities for education and employment and for a happy and prosperous future.

Rose Kalache

35. Mrs Kalache provided a written statement dated 22 July 2003 (A4). She is a Registered Care Giver with Ashfield Family Day Care. Mrs Kalache said she finds it very hard to see her daughter suffering. Her daughter works hard and has a good job and Mrs Kalache is very proud of her. Mrs Kalache has met Mr Chamoun because her family came from Zahle and were neighbours of Mr Chamoun's family. She has known him since he was about five. His mother died when he was aged 7 and he and his brothers and sisters were often left to fend for themselves. Mr Chamoun's father remarried about two years after his first wife died and moved to Jounieh with the children. However, the children did not get on well with their stepmother and often spent time with their grandparents in Zahle. Mrs Kalache said Mr Chamoun had a tough time growing up and she believes him to be a good man.

36. Mrs Kalache said that she is aware that Mr Chamoun was caught in possession of hashish for his own use. She checked on what had happened through Mr Chamoun's family, from his grandmother and his father, and they confirmed Mr Chamoun's account. She also asked her uncle, who is a general in the Lebanese army, about the penalties for the possession of drugs. He explained to her that even the possession of hashish can give rise to a two year prison sentence. Penalties are much harsher than in Australia.

37. In her statement, Mrs Kalache said Mr Chamoun is a hardworking man who wants to be with his wife and part of the Australian community. She has always known him to be "caring, affectionate and respectful towards myself and towards the people of the community".. She said she is confident that he will make a good citizen, he is guaranteed employment with a building firm, and it is paramount that he and her daughter are together so that they can start their life together as a husband and wife.

Georgina Kalache

38. Ms Kalache provided a statement dated 22 July 2003 (A5). She said she has known Mr Chamoun for five years and was with her sister when she went to Lebanon two years ago and was matron of honour at her wedding. Ms Kalache said she also visited Mr Chamoun in prison on her earlier trip to Lebanon and said he seemed to be a good man - honest and kind hearted. She got to know him better two years ago and is aware that he and her sister wish to start a family together.

39. Ms Kalache said she is aware that Mr Chamoun was arrested when in possession of a small amount of hashish and knows that he was sent to gaol for dealing in drugs.

40. Ms Kalache said both her family and Mr Chamoun's are very supportive of the relationship which she said is one of true love and mutual support. She said Mr Chamoun is working hard to provide a future for him and his wife. He is of a generous and friendly nature and has been offered a position with a building firm in Australia.

Submissions

Respondent

41. Mr Peek, for the Respondent, noted Mr Chamoun's evidence that he lied to Mr Davies in his interview at the Australian Embassy in Beirut on 25 November 2002 when he claimed to have been on his own from the age of 12 and as to how he subsequently became involved in drug trafficking. Mr Chamoun now states this was the substance of his confession while in detention which was obtained under duress. Mr Peek submitted that the Tribunal should prefer Mr Chamoun's original claims to have been involved in drug trafficking given his evidence that the claim that the confession was obtained under duress was rejected by the trial judge. It is implausible for Mr Chamoun to argue that he was too scared to reveal the truth to Mr Davis, given that his claim of duress had previously been made to the trial judge.

42. With regard to the exercise of the s 501(1) discretion, Mr Peek submitted that the seriousness of Mr Chamoun's conviction outweighs any other considerations in favour of the grant of a visa. Paragraph 2.4 of Direction No 21 emphasises the Government's concern with protecting the community against those who have committed drug offences, and paragraph 2.6 states the Government's view that offences involving trafficking, commercial dealing or selling illicit drugs are considered very serious. Mr Chamoun confessed to being involved in the trafficking and sale of hashish and cocaine for financial gain for at least five years. Mr Chamoun was sentenced to three years imprisonment and the Respondent doubts that a lesser sentence would be imposed in Australia.

43. Mr Peek submitted that the Australian community would expect that a visa would not be granted to a person convicted of such an offence. He acknowledged that there are other relevant considerations, in particular, the relationship between Mr Chamoun and Ms Kalache. However, Ms Kalache was aware of Mr Chamoun's convictions at the time of their marriage and should have realised that this would cause difficulties for him in obtaining a visa to come to Australia.

44. Mr Peek noted that Mr Chamoun has never been to Australia and has no ties with the Australian community other than those with Ms Kalache. While Mr Peek acknowledged that Ms Kalache would face difficulties living in Lebanon, nevertheless, she has spent significant periods there in the past. In conclusion, he submitted that the protection and expectations of the Australian community outweigh these other considerations.

Applicant

45. Ms Kalache said she was shocked and disappointed when she read Mr Davies' account of his interview with Mr Chamoun at the Australian Embassy in Beirut on 25 November 2002. Ms Kalache said Mr Chamoun had never been involved in trafficking drugs. He used to smoke "pot" and got caught with some in his possession. If he had been convicted of drug trafficking in Lebanon, he would probably have been sentenced to between 15 and 17 years imprisonment.

46. Ms Kalache said Mr Chamoun has now been out of prison for over three years. He has undertaken and completed his national service and is now working on a farm. She is sure that, given her family's attitude to drugs, he will never smoke pot again. She contended that he is of good character and has rehabilitated.

47. Ms Kalache said, prior to his arrest, she was not aware that Mr Chamoun smoked cannabis. She met Mr Chamoun when she was young and fell in love. She will not divorce him if he is not permitted to come to Australia. However, her family and friends are in Australia, she loves her job and is moving up in her career. She wants to have children but does not want to bring up children in Lebanon - she wants them to have the freedom she experienced growing up in Australia. Ms Kalache said she is scared by her predicament and asks for her situation to be viewed compassionately.

Consideration of the Law and Findings

48. As stated above, there is no dispute that Mr Chamoun does not pass the "character test" by reason of s 501(6)(a) of the Act, because he has a "substantial criminal record", defined in subsection (7) as including a person who has been sentenced to a term of imprisonment of 12 months or more. Mr Chamoun was convicted of a drug related offence for which he was sentenced to three years imprisonment (T p96).

49. The issue for the Tribunal, therefore, is whether to exercise the residual discretion under s 501(1) to decide, nevertheless, not to refuse the grant of a visa. In so doing, the Tribunal must have regard to Direction No 21 as a guide to the exercise of its discretion.

50. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

Paragraph 2.3 sets out the primary considerations:

In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a) the protection of the Australian community, and members of the community;

(b) the expectations of the Australian community; and

(c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

Paragraph 2.4 explains:

The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community

51. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraph (a), drug-related crime, and in subparagraph (c), serious crimes against the Act, including making a false or misleading statement in connection with entry or stay in Australia.

52. Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence - the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.

53. Turning to the first of the primary considerations, the protection of the Australian community, there is no dispute that on 5 January 1998 Mr Chamoun was convicted of a drug related crime and sentenced to three years imprisonment with hard labour. Despite Ms Kalache's best endeavours to obtain more specific information as to the drug related crime of which Mr Chamoun was convicted, the further information she obtained has not been of any real assistance. She provided what appears to be a summary of two Articles, being Articles 125 and 127 of the Lebanese Narcotics Law, Law No 673, dated 6 January 1998, prepared by Lawyer Nassifteeny on 16 September 2003. Article 125 prohibits the trafficking and cultivation of drugs and carries a maximum prison sentence of "life penal servitude". Article 127 prohibits the possession of small quantities of drugs for personal consumption and carries a term of imprisonment "for three months to three years".

54. Ms Kalache states Lawyer Nassifteeny is the lawyer who represented Mr Chamoun in the trial leading up to his sentence on 5 January 1998. The difficulty with his summary, outlined above, is, of course, that Law No 673 is dated 16 January 1998, after the date of Mr Chamoun's conviction. Moreover, the two articles summarised do not throw any light on the specific crime of which Mr Chamoun was convicted. The summary of the verdict of the Criminal Court of Mount Lebanon (T pp 34 and 51) refers only to the "kind of crime" as "drugs" and the specific legal article being "Third article - second clause of Hashish Law" (further translation provided by Ms Kalache).

55. The Tribunal accepts that different countries have different attitudes to the punishment of drug related offences but is unable to make any further deduction from the evidence before it. Nevertheless, in terms of the guidance provided by Direction No 21, the Tribunal concludes that the offence of which Mr Chamoun was convicted should be considered serious given the sentence of three years imprisonment imposed by the court. The Tribunal notes that since his release from prison, Mr Chamoun has completed his national service and is now working.

56. There is no evidence before the Tribunal to support a likelihood of repetition of this offence, but the Tribunal notes that Mr Chamoun lied to Mr Davies in his interview at the Australian Embassy on 25 November 2002. This in itself is regarded as a serious crime against the Act. Mr Chamoun has sought to explain that he was scared and thought Mr Davis had a copy of Mr Chamoun's confession statement, obtained under duress. He therefore thought he should be consistent with the confession in the account he gave Mr Davies.

57. The Tribunal has emphasised that 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 perpetrate falsehoods are not deserving of favourable consideration (Re Stella Gorges and Minister for Immigration and Multicultural Affairs [2002] AATA 89 at para 36).

58. The Tribunal also recognises that refusing the grant of a visa in such circumstances may have a deterrent effect on others who may be contemplating similar misconduct.

59. With regard to the second of the primary considerations, the expectations of the Australian community, in the Tribunal's view, the community would expect that a person convicted of a drug related crime, who has served a three year prison sentence, and who has also lied in the course of an interview with a migration officer, should not be granted a visa.

60. The third primary consideration, the Best Interests of the Child, is not relevant to this matter. The Tribunal notes that Ms Kalache and Mr Chamoun were expecting a child, but unfortunately Ms Kalache suffered a miscarriage.

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

62. The Tribunal finds that the relationship between Ms Kalache and Mr Chamoun is a genuine one. All Ms Kalache's immediate family are in Australia, where she was born and educated and which she regards as her home. She has a job she enjoys and is pursuing a career. For her to move to Lebanon would be difficult and disruptive. She has only limited Arabic language skills, is uncomfortable with some of the cultural constraints and would probably have difficulty finding work. She states that she wants her children to be brought up in Australia. The Tribunal finds that if Mr Chamoun is denied a visa, there will be hardship to Ms Kalache. Nevertheless, she has spent a number of longish periods in Lebanon and has family there.

63. The Tribunal notes Ms Kalache was aware of her husband's conviction at the time of her marriage but that their relationship predates his arrest.

64. Mr Chamoun is a Lebanese citizen and has never been to Australia. All his family are in Lebanon. The Tribunal notes the evidence of the Applicant's mother, Rose Kalache, and her sister, Georgina Kalache, as to Mr Chamoun's good character. There are also two references in the T Documents attesting to Mr Chamoun's good character from a past employer, Tarek Mallo (T p58), and from a nun and teacher at the school where Mr Chamoun boarded for four years from the age of 15, Joan Vieve (T p59).

65. In the Tribunal's view, the primary considerations of the protection and expectations of the Australian community currently outweigh the other relevant considerations, and the decision under review must be affirmed. However, a different view might be taken if it could be proved as the Applicant contends, that Mr Chamoun was convicted merely of possession of cannabis for his personal use, and if there were further evidence of rehabilitation and good conduct.

I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President

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

Associate

Date/s of Hearing 28 July 2003 and 24 September 2003

Date of Decision 3 October 2003

Representative for the Applicant Self represented

Representative for the Respondent Mr G Peek, Solicitor