IMMIGRATION - spouse visa - refusal on character grounds - where the visa applicant failed to meet the character test - false protection visa application - disregard for Australia's immigration laws - desirability of consistency in tribunal decision-making

Migration Act 1958 - section 5, 234, 417, 499, 501

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

Re Golding and Minister for Immigration and Multicultural Affairs [2000] AATA 956

Re Kiokata and Minister for Immigration and Multicultural Affairs [1999] AATA 1022

Re Ly and Minister for Immigration and Multicultural Affairs [2000] AATA 339

Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234

Re Msumba and Department of Immigration and Multicultural Affairs [2000] AATA 87

Re Ngor (also known as Yeng) and Minister for Immigration and Multicultural Affairs [2000] AATA 353

Re Peljha and Minister for Immigration and Multicultural Affairs [2000] AATA 967

Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 485; (2000) 173 ALR 313

1. (a) This is an application for the review of a decision by a delegate of the Respondent made on 14 March 2000, refusing an application for a spouse visa by Ms Nouhad Hanna Andary ("Ms Andary"), and in respect of whom the Applicant, her husband, was the sponsor.

(b) The Applicant was represented by Mr Ray Turner of Tzovaras Legal, Lawyers, while the Respondent was represented by Mr Nathan Cureton of Blake Dawson Waldron, solicitors.

(c) The Tribunal had before it the T Documents and also the Supplementary T Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 together with Exhibits as follows:

* Exhibit A1 is a brief outline of the evidence of Ms Andary; and

* Exhibit A2 is an even briefer outline of the evidence of the Applicant.

The Supplementary T Documents were not numbered sequentially after the T Documents, and commenced with page 1. Accordingly, and for this reason, page references in these Reasons when preceded by 'T' refer to the T Documents, and page references when preceded by 'ST' refer to the Supplementary T Documents.

(d) In the T Documents (but not the Supplementary T Documents) the party cited as the Respondent was the Department of Immigration and Multicultural Affairs. Since the relevant decision was made by a delegate of the Respondent Minister, he is cited in these Reasons as the Respondent.

(e) Ms Andary gave evidence by telephone link from Lebanon and an interpreter assisted her in the Arabic language. She does perhaps have some knowledge of the English language, which was indicated by the fact that on occasions she answered in English without waiting for the interpreter to translate the question into Arabic.

2. As I did in each of the decisions in Re Golding and Minister for Immigration and Multicultural Affairs [2000] AATA 956 and Re Peljha and Minister for Immigration and Multicultural Affairs [2000] AATA 967 (both handed down recently), I commence by including a number of extracts from the documents.

(a) In Re Peljha, the Respondent included a statement as to the applicable law in his Statement of Facts and Contentions. The parties were agreed that the statement as to the applicable law contained in Re Peljha is accurate; accordingly it is reproduced in these Reasons as follows:

15. Pursuant to subclause 309.225 of the Migration (1994) Regulations an applicant for a Spouse Visa must satisfy public interest criterion 4001 at the time of the decision. That criterion in turn requires an applicant to satisfy the Minister he or she passes the Character test.

16. Section 501(1) of the Act states as follows:

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).

Relevantly, Section 501(6)(c) of the Act states as follows:

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) the person's past and present criminal conduct;

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

17. The question of whether a person is of good character is answered by reference to the ministerial direction on the Character test.

18. Section 499(1) of the Act states as follows:

The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

19. Direction No. 17 of 1999 ("Direction 17") was made pursuant to Section 499 of the Act on 17 June 1999. Direction 17 provides guidance to decision makers, in making decisions to either refuse or to cancel a visa under Section 501 of the Act. Direction 17 is binding on all decision makers, including merits review tribunals such as the AAT.

20. Direction 17 consists of two parts. Part 1 provides directions on the application of the Character test. Non-citizens who are being considered under Section 501 must satisfy the decision maker that they pass the Character test. If a non-citizen does not pass the Character test, decision makers are then to exercise discretion on whether to refuse or to cancel a visa. In doing so, decision makers are to take into account both primary and other consideration. Part 2 provides directions as to what those considerations are, and what weight is to be given to them.

21. Before finding that a non-citizen is not of good character due to their past or present general conduct (Section 501(6)(c)(ii)), Part 1 of Direction 17 requires a decision maker to have regard to the all the relevant factors of the case. This includes evidence of recent good character, but it also specifically includes inter alia the following:

(a) whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights;

(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 by subsection 5(1) of the Act.

22. Under Part 2 of Direction 17, if a non-citizen does not pass the Character test, decision makers must have regard to the following primary considerations when exercising the discretion on whether a non-citizen should be permitted to enter or to remain in Australia:

(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 relationship between a child or children and the person under consideration, the best interests of the child or the children.

23. In relation to the primary consideration of the protection of the Australian community, the following factors are relevant:

(a) the seriousness and the nature of the conduct;

(b) the likelihood that the conduct will be repeated (including any risk recidivism); and

(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).

Relevantly, offences under the Act, including the making of a false or misleading statement in connection with an entry or stay in Australia is considered to be a serious offence. The general deterrence factor also operates to deter others from committing similar offences.

24. In relation to the primary consideration of the expectation of the Australian community, the non-citizen is expected to obey Australia's laws while in Australia.

25. In relation to the best interests of the child, this primary consideration comes into effect if the child would be less than 18 years of age when the decision is intended to come into effect. This primary consideration however is not applicable to this case.

26. When considering whether to refuse a visa, other factors, although not primary considerations, may be relevant. These are to be given less weight than primary considerations, but they may include:

(a) the disruption to the non-citizen' s family, business and any other ties to the Australian Community;

(b) the genuine marriage to, de facto or interdependent relationship with an Australian citizen or permanent resident;

(c) the degree of hardship which would be caused to immediate family members lawful resident in Australia;

(d) the 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 mater, any cost or bilateral implications of such a breach;

(g) the nature and seriousness of the offence(s) or alleged offence(s);

(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 or stay in Australia, including any significant compassionate circumstance; and

(k) the fact that the non-citizen has been formally advised in the past by an officer of the Department of Immigration & 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.

27. The decision maker is also required to consider whether there are any international obligations relevant to the non-citizen. Such obligations may arise, for instance, pursuant to the International Convention on Civil & Political Rights, the Convention against Torture and the Refugees Convention.

(b) In accordance with the Respondent's Statement of Facts and Contentions dated 7 November 2000, the relevant Facts (which serve as a chronological survey of relevant events) were stated to be as follows (and page references relate to the T Documents and Supplementary T Documents respectively):

1. The Applicant was born on 25 February 1961 (Tp 91).

2. The Visa Applicant was born on 12 November 1971 (Tp 105).

3. On 9 January 1996, the Visa Applicant initially entered Australia on a visitor visa valid for 3 months. She sought, and was granted, extensions in March and October 1996 (Tp 184).

4. On 24 December 1996, the Visa Applicant lodged a protection visa application (Sp 1).

5. On 17 April 1997, Application for protection visa was rejected by a delegate of the Minister for Immigration and Multicultural Affairs (Sp 29).

6. On 12 May 1997, the Visa Applicant lodged an appeal of this decision with the Refugee Review Tribunal (the "RRT") (Sp 31).

7. On 10 February 1998, the RRT affirmed the decision of the delegate of the Minister to refuse to grant the protection visa (Tp 30).

8. On 12 March 1998, the Visa Applicant sought Ministerial intervention under Section 417 of the Migration Act 1958 ("the Act") (Sp 38).

9. In April or May 1998, the Visa Applicant first met the Applicant (Tp 180).

10. On 22 June 1998, the Ministerial intervention under s417 was declined by the Minister (Sp 40).

11. On 13 August 1998, the Visa Applicant was convicted of larceny in Bankstown Magistrates Court and was fined $300 (Tp 5).

12. On 18 September 1998, the Visa Applicant married the Applicant (Tp 86-87).

13. On 28 October 1998, the Visa Applicant made an application for a spouse visa based on her marriage to the applicant (Tp 44).

14. On 29 October 1998, the Visa Applicant departed Australia (Tp 5).

15. On 20 April 1999, the applicant was interviewed by Department of Immigration and Multicultural Affairs (the "Department") at the post in Beirut, Lebanon (Tp 179).

16. On 15 September 1999, the Visa Applicant lodged a declaration with the Department regarding her conviction for theft (Tp 157).

17. On 26 January 2000, the applicant was gain interviewed by the Department at the post in Beirut, Lebanon (Tp 42).

18. On 14 March 2000, the applicant's application for the spouse visa was rejected by a delegate of the Minister (Tp 4 ).

At the hearing, the Respondent amplified that statement, so as to include a new clause, to be inserted between clauses 15 and 16, and to be numbered 15(a), reading as follows:

On 26 April 1999, the Applicant lodged a second application for a spouse visa.

(c) If only by way of balance, I also reproduce the facts as contained in the Applicant's Statement of Facts and Contentions dated 26 October 2000, and reading as follows:

1. On 9 January 1996 Ms Andary entered Australia on a visitor visa valid for 3 months.

3. In October 1996 the Visitor Visa was again extended.

4. On 20 December 1996 Ms Andary lodged an application for a Protection Visa.

5. On 17 April 1997 the Protection Visa application was refused.

6. On 12 May 1997 Ms Andary lodged an appeal to the Refugee Review Tribunal.

7. On 10 February 1998 the Refugee Review Tribunal affirmed the decision.

8. On 12 March 1998 Ms Andary sought Ministerial Intervention under the Migration Act 1958 s417.

9. On 22 June 1998 the Minister refused to exercise his discretion.

10. On 13 August 1998 Ms Andary was convicted of larceny in the Bankstown Magistrates Court and fined $300.00.

11. On 18 September 1998 Ms Andary married Mr Kamil Maatouk, an Australian citizen.

12. On 29 October 1998 Ms Andary departed Australia.

13. On 28 October 1998 Ms Andary lodged an application to migrate to Australia as the spouse of an Australian citizen.

14. On 14 March 2000 Ms Andary's application was refused.

3. There are other extracts from the relevant documents which can conveniently, and by way of background, be set out in these Reasons:

(a) Ms Andary entered Australia in January 1996. Nearly a year later, and in December 1996 (after twice extending her visitor's visa), she applied for a protection visa; her grounds of application appear at ST6 and ST7 as follows:

I left Lebanon because Samir JaJa went to prison, for my safty (sic), I came to Australia because the Lebanese government Army were catching all the Samir JaJa Melesha (sic) they took me couple of time (sic) for questioning and also they were following me as I was going to work for information. So I was scared because my mates in melation kept them in jail. So I stoped (sic) work and thought to myself to be safe I came to Australia to see my brother and my parents were afaird (sic) for me they told me to leave Lebanon I came and would like to stay until Samir JaJa gets out of jail.

I am afraid to go back because of Lebanese force. I'm scared too much because they will kill me by the Lebanese Government Army. I'm in fear.

(b) The application for a protection visa was declined; clause 5.4 of the Protection Visa Decision Record sets out the reasons; those reasons (ST28 and ST29) read as follows:

5.4.1 The applicant claims that she left Lebanon because Samir Geagea went to gaol and the authorities were arresting members of his militia. The applicant was questioned and followed because of her role of obtaining information for the militia. She claims she is still wanted as friends of hers from the militia informed on her once they were arrested.

The applicant claims that she fears that she will be killed by the Lebanese government army if she returns to Lebanon.

I do not accept the applicant's claims to be plausible given the minimal role that she had within the LF militia. Given this and the country information for Lebanon I do not accept that the applicant would be of interest to the authorities in Lebanon. The applicant did not have any high profile role within the militia other than as a CB radio operator and in collecting information, between 1987 and 1990. The applicant has said in her application that she was employed elsewhere after that time and unemployed for a period after this. It would appear that she lived at the same address for most of her life in Lebanon and completed her education.

The LF was dissolved by the Lebanese government in March 1994 for its alleged involvement in capital crimes. At that time its party leader Geagea was detained for questioning in regard to various crimes (he was later gaoled).

Recent information says that Lebanese authorities are only pursuing former LF members who are wanted in connection with serious offences such as murders or bombings. They are not pursuing the rank-and-file. This indicates that the applicant would be of little or no interest to the authorities given her limited involvement with this militia.

DFAT states that no single class of citizens can be said to be suffering systematic discrimination on grounds of race, religion, political opinion or membership of social group, for example, the LF may be banned but ordinary citizens expressing support for the LF are not singled out for adverse treatment.

The applicant has stated in her application that she was able to depart Lebanon legally. Information we have is that the Lebanese authorities would certainly have prevented the issue of a passport to any wanted individual whose crime was linked to their membership of the LF. The fact that someone could obtain a passport from a Lebanese mission abroad can be said to mean that they are not being sought by the authorities.

Current information from Lebanon also states that the general situation there is stable and it is safe for citizens to return to the country. In fact many Australian-Lebanese are returning there permanently.

I conclude that the applicant's claims are not well-founded.

(c) Ms Andary then appealed to the Refugee Review Tribunal ("RRT") and again failed; the Findings and Reasons of the RRT (ST35 and ST36) read as follows:

As the applicant has not availed herself of the opportunity to attend an oral hearing, the Tribunal has before it only the information contained in the written material from which to make a determination.

The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is "well-founded " or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MlEA v Guo & Anor (1997) 144 ALR 567 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA, unreported, Federal Court, Foster J, 24 April 1997, at 25), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MlEA [1985] FCA 47; (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier [1989] FCA 518; (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MlEA [1994] FCA 1253; (1994) 124 ALR 265, at 278.

The applicant's claims are lacking in detail. She claims to have been taken for questioning on a couple of occasions but does not say when, for how long, or with what result. She has provided no details of how she was treated or what official action, if any, was taken against her. She claims that her friends told the authorities that she was a LF spy but give no details about this, such as how she knows about it or what happened as a consequence of it. Her claims of being in danger from and being wanted by the authorities but being able to obtain a passport and leave the country legally are inconsistent with the independent country information. She claims to have operated as a spy by gathering information obtained from a CB radio. I find this implausible.

I am unable, on the evidence before me, to assess the nature and extent of any harm the applicant suffered in the past or might suffer in the future. Her claims amount to no more than a series of unsupported assertions.

The applicant has been put on notice by the Tribunal that it is unable to make a favourable decision on the information before it but has not provided any further information in support of her claims despite ample opportunity to do so. Nor has she given the Tribunal the opportunity to explore aspects of her claims with her. A number of relevant questions are therefore left unanswered. I am not satisfied, on the evidence before me, that the applicant has a well-founded fear of persecution within the meaning of the Convention.

It is to be noted that Ms Andary chose did not give evidence before the RRT.

(d) An application to the Respondent Minister under section 417 of the Migration Act 1958 ("the Act") also failed. Ms Andary departed Australia in October 1998, having married the Applicant in September 1998.

(e) There were two applications for a spouse visa, one dated 28 October 1998 and the other dated 26 April 1999. In respect of each of these applications, the Applicant answered question 70, which enquires as to convictions, and to which she replied that she had none. That answer was not true; the Applicant had been convicted of larceny in the Bankstown Magistrates Court on 13 August 1998 and fined $300.

(f) On 20 April 1999, Ms Andary was interviewed by a person named Nadine; the record of that interview appears at T116 to T118; Nadine noted, at the top of T117, that:

although PA might have misused the migration system but still she is genuine in her relationship with the sponsor. Therefore I am ready to proceed with approval on this case once we receive the above papers...

I have just accessed the file to remove the a/n MAL when I noted that the AFP clearance indicates that the a/n has a conviction at [B]ankstown Court on 130898 for larceny & was fined $300.

I further note that on the Form 47 executed by the a/n on 281099 at Q 70 she answered "No" to the first dot point . . "have you ever. . . been convicted of a crime or offence in any country [including any conviction which is now removed from official records".

Clearly this is a matter which must be investigated.

There was no evidence before the Tribunal as to the capacity of Nadine or her power to grant the visa for which Ms Andary had applied. Nadine's statement at the top of T117 may mean that she intended, because she was satisfied as to the genuineness of the marriage relationship, to process the application further; it does not follow and it may not be likely that Nadine had the power in these circumstances (and leaving aside the larceny conviction) to approve the grant of the spouse visa for which Ms Andary had applied.

(g) T157 is a Statutory Declaration in English (and where the Arabic version is also included at T159-T160) by Ms Andary dated 15 September 1999 in relation to the larceny conviction, and which reads as follows:

I was at the supermarket to purchase some stuff, and my little nephew was with me. I left him watching the toys and other things while I went on buying the stuff I needed. When I finished, I paid at the counter, called my nephew to leave, and saw him holding things I couldn't recall exactly. I went to him and hit him. I took the things from him and headed to put them back at their place when the owner saw me. He begun talking to me, but I didn't understand what he was saying, for I didn't speak English, and nobody there spoke Arabic. I spoke to him in Arabic, but he didn't understand me. I wanted to exonerate myself, but he accused me of larceny. He didn't understand me telling him that it was my 3-year old little nephew who took the things, and that he didn't realise what he was doing. The owner called the police who began investigating with me. How could I defend myself? I didn't even know how to express myself. I told them to take all what they wanted and discharge me, for I was afraid that my brother knew about what happened with me and with his son. He would kill me. I didn't want anybody to know about what happened. This is why I saved myself and paid the amount they requested to free myself of the charge.

(h) ST41 to ST58 is the transcript of an interview of Ms Andary by Mr T Hoenig in Beirut on 26 January 2000; the contents of pages ST48 to ST52 read as follows:

MR HOENIG: What was his purpose in taking her there?

THE INTERPRETER: He was renewing his visa and she wanted to stay there, so they went together.

THE INTERPRETER: Men, she doesn't know who they are.

MR HOENIG: And how did - how was the application filled in?

MR HOENIG: Who provided the information to be put on the paper?

THE INTERPRETER: Tony, because Tony knows how to do it. He has done it before, and she doesn't know what it is all about, he was just helping her.

MR HOENIG: Does she know what was being recorded on the paper?

THE INTERPRETER: Doesn't know English, no, doesn't know.

MR HOENIG: So she signed the paper which she didn't know what it contained?

THE INTERPRETER: She knows that her cousin is not going to fool her or trick her. She knows they were applying for refugee status and what are they going to write.

MR HOENIG: She doesn't know what claims were being made, is that right?

THE INTERPRETER: No, it's about refugee -she was in war and she was fighting in war.

THE INTERPRETER: No she did - she did the impossible to stay there. She did all this just to stay there.

THE INTERPRETER: After they filled this paper they went back home.

THE INTERPRETER: After six months they gave her a paper saying you can appeal, and she thinks she was accepted. And that's how she can renew her visa.

MR HOENIG: After six months they gave her a paper

MR HOENIG: Did she not understand that that had meant the application was refused?

THE INTERPRETER: Yes, but she still renewed her visa. They accepted her to renew. She said they accepted -I renewed my visa.

MR HOENIG: So she understood that the -that being offered the appeal meant that the application was being refused?

THE INTERPRETER: --- a working visa on the passport.

MR HOENIG: That's not the question. The question I asked here was, did she understand that because she'd been given an appeal right, that meant the application had been refused. Did she understand her application had been refused?

THE INTERPRETER: They don't understand. They give her a right to appeal and then she - they would accept it again.

MR HOENIG: And so did she go to fill in -to an office to fill in the appeal papers?

THE INTERPRETER: Yes, but she cannot remember which office.

THE INTERPRETER: Doesn't know, cannot remember. It's not the same office. Not the same office she went to. And every time she renewed her visa it was at a different office.

THE INTERPRETER: Just this man. He was in charge of the office.

MR HOENIG: So her cousin Tony was not there this time?

THE INTERPRETER: The first time she went with Tony. After that she went even with friends or with someone else. She didn't ---

THE INTERPRETER: This time she had Tony Saad with her.

THE INTERPRETER: He's from Lebanon originally. He's from Mazraid Tufah but he is living in Australia now.

MR HOENIG: Yes, but what was his purpose in accompanying her?

THE INTERPRETER: 'Cause he knows English and he can talk to them.

THE INTERPRETER: Friends. She went with him to Immigration too and Immigration renewed her visa and extended her visa.

MR HOENIG: Who provided the information to be put into the appeal? Sorry , if she answer; the question could you translate it, please? I asked who provided the information. She said Anah, which means me.

MR HOENIG: So can you translate what she said, please?

MR HOENIG: She said she provided the information.

MR HOENIG: Okay. What information did she provide?

THE INTERPRETER: He asked her do you feel like staying in Australia. She said yes. I can't remember what the information was, she's telling me. Three years: ago, she can't remember all the information.

MR HOENIG: So, but there had to be information in that appeal that deals with her claims, not just that she wanted to stay in Australia. What claims were made to be put into the appeal?

THE INTERPRETER: They know - they know what they're putting. They have experience. They know what they're doing. I asked who, she said Tony Saad.

MR HOENIG: Is she saying: that she doesn't know what claims were put into that appeal?

MR HOENIG: So she signed a document, she didn't know the contents, of which -what were the contents of it?

THE INTERPRETER: She knows what she's doing. If - if her friend did not tell her what was in it, she wouldn't have signed it, but she knew she going to renew her visa.

MR HOENIG: Did she understand that she was using the refugee protection system merely to stay in Australia and understand that that's not the purpose of it?

(a) She has been educated at both primary and high school level; although at the beginning of her evidence she described herself as a school student, she said subsequently that she is not working and that she lives at home with her parents. T52 indicates that Ms Andary was employed as a dressmaker from 1989 to 1991 and as a cashier from 1993 to 1995.

(b) Ms Andary admitted that her application for a protection visa was based on false grounds. She gave evidence as to the fact that she received assistance in respect of that and subsequent applications from various friends.

(c) In respect of the larceny conviction she said at the relevant time she was in the shop with her "cousin". Her "cousin" was outside the shop and, because her "cousin" was so young (two and a half years old), she went outside the shop to fetch him. She was carrying the goods when she was accused of stealing them. She said that they took away her watch and bottle of perfume and "were very hard on me". She then went on to say "she accused herself" because she did not want her brother, the father of her "cousin" (in fact her nephew) to know about the incident.

(d) When interviewed at the Australian Embassy, she was asked to write down what happened. She said "I wrote down exactly what I am telling you". She said also that "the man was nervous" and that she told him that "I took these things and please forgive me" and then "I accused myself".

(e) In respect of her Statutory Declaration, the version in Arabic was, at Mr Turner's request, put to her; she said that her nephew was in the supermarket with her and she left him looking at toys. She also said that she now remembered that when she went to fetch him he had goods in his hand; the goods in her own possession were her own and not stolen. She repeated that the nephew was only two and a half and she did not want anything to happen to him and that is why she "accused herself".

5. The larceny conviction and the surrounding circumstances were dealt with during the hearing at considerable length. In this regard:

(a) Mr Cureton contended that Ms Andary had given different versions as to what had happened. He suggested that there were three, being the version that placed her nephew outside the store (given in her oral evidence), the version given in her Statutory Declaration, and yet another version given in the interview in January 2000 at ST57, and which reads as follows:

MR HOENIG: What was she convicted of? What - well, why was she convicted?

THE INTERPRETEER: She saw someone, another person taking something and she got out, like no one caught her. That's what she's trying to explain. So she felt like oh she could do it and she doesn't know what happened to her at that moment, why she did something like this, but she felt it was easy to do it and she just did it. She doesn't know what happened. Every time she remembers this thing she feels very bad and she's never done something like this, but she doesn't know what happened at that moment, so she got the courage to do it.

INTERPRETER: She can't remember exactly, but can remember is maybe it's perfume, bottle of perfume and another small thing - another thing, not another small thing.

INTERPRETER: When she was taking them, they saw her.

MR HOENIG: In her statutory declaration of the 15th of September she said her three year old nephew did it.

(b) So far as the Tribunal is concerned, the fact is that Ms Andary was convicted of larceny and fined $300. The Tribunal is precluded from going behind that conviction: Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234 at 244-245 (per Branson, Lindgren and Emmett JJ). That said, the Tribunal considers that the version, which placed her nephew outside the store on his own when he was only two and a half years of age, is inherently unlikely. Nor could Ms Andary rationally think that the authorities would take action against a child of this age. Although she may well have felt concerned about her brother's reaction, and what he might have seen as neglect on her part, the Tribunal notes that her brother did not give evidence at the hearing.

(c) The larceny conviction (in reality, a conviction for shoplifting) would not, regarded on its own, be very serious. Certainly the sentence indicates this as the court imposed a fine of only $300. It does perhaps take on a more serious connotation in the light of Ms Andary's general conduct and in particular the false statements contained in the two spouse visa applications, and her applications in relation to the protection visa.

6. The oral evidence of the Applicant was comparatively brief:

(a) He came to Australia in October 1991. He received the Newstart Allowance from 10 April 1995 until 7 June 1999 (T151-T152). He now works as a house painter; he does so as a subcontractor which means that sometimes he has work (and then does not draw any social security) and sometimes does not. His father is also a house painter and the Applicant worked with his father in Lebanon as a house painter and handyman.

(b) The Applicant is thirty-nine years old, although he appears to be much younger; while in Lebanon he served in the Lebanese military forces for three years. He has close family in Australia (and also the United Kingdom); his uncles and aunts and cousins are all in Lebanon.

(c) Although (per the T Documents) he has phoned his wife regularly, he has not, despite a separation of more than two years, visited her there.

(d) When asked whether he would return to Lebanon to be with his wife if this application failed, he was unsure as to his answer. However, he did subsequently indicate that he would not wish to leave Australia.

7. Mr Turner raised a number of arguments and contentions which can, as a matter of convenience, be gathered together under this paragraph 7:

(a) Mr Turner contended that Direction 17 (referred to in clause 19 of the Law as set out in paragraph 2(a) of these Reasons), while binding on the Tribunal, is nevertheless couched (in various places) in language which is properly to be regarded as permissive rather than peremptory; moreover the provisions of Direction 17 are not the only relevant factors. Mr Cureton contended in reply that, insofar as Direction 17 is couched in permissive language, this is merely indicative of the fact that the Tribunal is vested with a weighting power; that is as to the weight to be attributed to the various primary and secondary considerations. The Tribunal considers that, as set out in clause 19 (in paragraph 2(a) of these Reasons), Direction 17 is binding on the Tribunal and Mr Cureton's contentions as to Direction 17 are correct.

(b) Mr Turner referred at length to Article 23 of the International Convenent on Civil and Political Rights ("ICCPR"), clauses 1, 2 and 3 of which are quoted as follows:

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

2. The right of men and women of marriageable age to marry and to founder the family should be recognised.

3. No marriage should be entered into without the free and full consent of the intending spouses.

Mr Cureton drew the attention of the Tribunal to the recent Federal Court judgment of Mathews J in Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 485; (2000) 173 ALR 313, and in which she stated (at 329):

. . . the ICCPR has not been incorporated into Australian domestic law. It was ratified by Australia on 13 November 1980 and is contained in a schedule to the Human Rights and Equal Opportunity Act 1986 (Cth). However, as the High Court confirmed in Dietrich v R [1992] HCA 57; (1992) 177 CLR 292; 109 ALR 385 it was not thereby incorporated into domestic law. As Mason CJ and McHugh J said (at CLR 305; ALR 391):

Ratification of the ICCPR as an executive act has no legal effect on domestic law; the rights and obligations contained in the ICCPR are not incorporated into Australian law unless and until specific legislation is passed implementing the provisions. No such legislation has been passed. [footnotes omitted]

This position was upheld as recently as February of this year by the Full Court of this court: Minogue v Williams [2000] FCA 125.

However, even if it were binding on me, the Tribunal does not consider that Article 23 can be interpreted so as to mean that an Australian citizen has an inviolable right to have his or her spouse live with him or her. That this cannot be so is demonstrated quite simply by posing the example of a spouse being sentenced to a term of imprisonment and, in consequence of which the other spouse is deprived of his or her company.

(c) The Tribunal agrees with Mr Turner's contentions that the fourth dot point of clause 1.9(a) of Direction 17, which reads:

Involvement in activities such as organised crime, terrorism, drug-related activities, political extremism, extortion, "white-collar" crime, fraud, and breaches of Immigration law

must be qualified by the opening words of clause 1.9(a) which relate to:

Activities indicating contempt, or disregard, for the law or for human rights

This said, there can be no doubt that Ms Andary's conduct in relation to breaches of the Act falls within clause 1.9(a) of Direction 17 and also clause 1.9(b). It is possible (having regard to the Statutory Declaration) that it also falls within 1.9(c) of Direction 17, but it is unnecessary for the Tribunal to make a finding as to whether or not clause 1.9(c) of Direction 17 is also relevant.

(d) Mr Turner contended that if the breaches by Ms Andary of the Act were as serious as the Respondent contends, there would have been prosecutions of her for offences under section 234 of the Act (and where the prescribed penalty is ten years imprisonment or 1000 penalty points, or both). This argument must fail; in the first instance, the seriousness or otherwise of an offence is not measured by the question of whether or not there has been a prosecution. But even more to the point is the fact that the Respondent knew that the refugee claims were false only after Ms Andary had returned to Lebanon; the prior proceedings indicated simply a denial by the Respondent and the RRT that her claims constituted persecution within the convention. The RRT appears to have had doubts as to the claims themselves, but doubts are very far from equivalent to certainty that the claims are false. Failure to reflect the conviction in the spouse visa application forms was also known to the Respondent only after Ms Andary had returned to Lebanon. It is hardly conceivable that the Respondent would in these circumstances have considered an application to have Ms Andary extradited; not only would the trouble and expense have been vastly out of proportion, but the Respondent would clearly not have wished to have brought Ms Andary back to Australia for the purpose of prosecution.

Mr Turner subsequently argued that in fact the untruthful nature of her claims was disclosed by Ms Andary herself and that she deserved credit for that disclosure.

(e) Mr Turner argued at some length that while Ms Andary was convicted of larceny, her Statutory Declaration could not be categorised as false and misleading because it might perhaps have contained the truthful version of the event in question. I have previously noted that there are some inherent improbabilities in the Statutory Declaration version, and I have doubts as to whether it was truthful. However, although Ms Andary's failure to disclose the conviction in her spouse visa applications would appear to have constituted a breach of section 234 of the Act, it is nonetheless possible (although not probable) that for the reasons advanced by Mr Turner, her Statutory Declaration did not.

8. (a) Mr Turner was of course aware of the fact that there have, over the past year or so, been a considerable number of "similar fact situation" cases. I refer in this regard to paragraph 12(b) of my decision in Re Golding which is repeated in this decision as follows:

(b) Although each case of this nature turns on its own facts it is relevant in my view to have regard to decisions and in particular recent decisions of this Tribunal which involve similar fact situations. A search has revealed a large number of just such cases, and which indicate a common problem or theme. That pattern or theme includes most of the following factors:

* a female applicant from the Philippines who enters Australia on a visitor's visa;

* soon after arrival an application is made for a protection visa based on whole or in part on false grounds;

* when that application fails there is an application to the RRT, followed, when that application is in turn unsuccessful, by a section 417 application to the Respondent;

* there is often work in Australia in breach of visas and a lengthy stay in Australia (and towards the end of it a marriage in Australia), before a return to the Philippines.

I indicated at the hearing that I intended to refer to similar fact situation decisions, even if they were not cited at the hearing. Accordingly I refer by way of a few examples only to the decisions of Deputy President McMahon in Re Dumbrell and Minister for Immigration and Multicultural Affairs [2000] AATA 443, Re Haines and Minister for Immigration and Multicultural Affairs [2000] AATA 575, Re Turini and Minister for Immigration and Multicultural Affairs [2000] AATA 731 and Re Esguerra and Minister for Immigration and Multicultural Affairs [2000] AATA 554; and of Deputy President Chappell in Re Gawronsk_i (supra) and_ Re May and Minister for Immigration and Multicultural Affairs [2000] AATA 480. In all of these cases the Applicant was unsuccessful. As Brennan J said in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634, consistency in decision making is desirable (at 636, 639 and 643). I note in any event that I agree with all of these decisions.

(b) Of course each case turns on its own facts. In this particular case, Ms Andary did not work in Australia in breach of the Act; on the other hand she was found guilty of larceny. In addition, of course (although this is not material) Ms Andary is from Lebanon and not the Philippines.

(c) Mr Turner referred to two decisions in which the Applicant succeeded despite breaches of the Act. He referred in this context to the decision of Deputy President Forgie in Re Ly and Minister for Immigration and Multicultural Affairs [2000] AATA 339 and that of Deputy President Forrest in Re Ngor (also known as Yeng) and Minister for Immigration and Multicultural Affairs [2000] AATA 353. In my view each of these decisions are clearly distinguishable; in Re Ngor Deputy President Forrest took account of the best interests of the Applicant's son Cheoung and also the fact that the Applicant had demonstrated a commitment to Australia. Similarly Deputy President Forgie in Re Ly took into account the fact that the Applicant was an expectant mother and also her relationship with Mr Tau's daughter Carol.

(d) Mr Turner dealt with the question of general deterrence also at some length. He said that although there have been a considerable number of these "similar fact situation" cases, the Respondent has not produced any evidence as to show that refusals of visas have resulted in any diminution in the number of these cases; he contended also that that it is likely that evidence of this nature could be made available. Mr Cureton in turn noted this aspect had not been raised by the Applicant in his Statement of Facts and Contentions.

The Tribunal has, on reflection, grave doubts as to whether there is or could be concrete evidence as to this aspect. This would require evidence as to visa applications which would not or might not have been made if the applicants were aware at the time of the applications that subsequent refugee applications would not succeed, or evidence of applications which were not made because the applicants became aware of the fact that refugee applications are likely to fail. When one considers the matter with these aspects in mind, one can readily see that Mr Turner's argument cannot be tenable. This aspect can perhaps be expressed with more force in the negative. If visa applicants received visas notwithstanding the fact they had repeatedly contravened the Act, other visa applicants would receive entirely the wrong message, and arguably would be likely to and would be encouraged to embark on conduct of a similar nature. These "similar fact situation" cases do result in considerable expense to Australia. It may be that certain Australian embassies could do more to make applicants aware of the fact that false refugee applications are not likely to succeed.

(e) Mr Turner also contended that the language used by the interpreter at ST57 gave rise to doubt as to its validity. He pointed out that the language differed from the language of the oral evidence of Ms Andary. The fact that different interpreters may use differing English when interpreting cannot, in the view of the Tribunal and in the absence of evidence to the contrary, give rise to an inference that either translation is inaccurate and there is no such evidence.

9. What then does the Australian public expect? In Re Msumba and Department of Immigration and Multicultural Affairs [2000] AATA 87 Deputy President McMahon said, at paragraph 39 (and I agree with his decision in this regard):

It is also the duty of the Tribunal to consider general deterrence so that the likelihood of a visa refusal would prevent or inhibit the commission of like offences by other persons. Mr Msumba has been in this country for almost six years, after arriving on a three-month visa. The series of applications in which he has been concerned, and the series of false statements which he has made on his own admission, point to a pattern of fraudulently exploiting the system. He should not be rewarded for this conduct. The expectations of the Australian community are also said to be a primary consideration. These expectations would include a refusal of a visa application where a non-citizen has breached Australian laws while in Australia.

10. Ms Andary was a party to various acts of deception having received assistance from a number of sources. Mr Cureton referred me to paragraphs 72 and 73 of the decision of Deputy President Chappell in Re Kiokata and Minister for Immigration and Multicultural Affairs [1999] AATA 1022; those paragraphs read as follows:

72. On this issue Mr Cureton, in his written submissions, had contended that Mr Kiokata had sought to indicate that he was unaware of the untrue statements made in his various applications, as well as the obligations he had failed to satisfy because of his over reliance on other people and language difficulties. Mr Cureton contended that Mr Kiokata was aware of his obligations and was aware of the false information supplied to the Department. Alternatively, if the Tribunal were to accept that Mr Kiokata was unaware of some of the untrue information and his obligations he should still be held responsible in the light of the comments made by McDonald DP in Luong v Minister for Immigration and Multicultural Affairs. In that decision McDonald DP had said:

It is not a satisfactory answer for a visa applicant to tell the Tribunal that he trusted Mr Nguyen to answer the questions accurately. If, as in this case, an applicant seeks to rely on a friend, migration agent or any other person to assist in the completion of the form, then the visa applicant must take responsibility if the form is not accurately completed.

73. Having considered the submissions made by both of the parties, as well as considering the decisions in Irving, Bui and Luong_, the Tribunal can find nothing inconsistent in the statement made in the latter case by McDonald DP with the earlier comments and approach taken in_ Irving and Bui respectively. The Tribunal is in full concurrence with the view expressed by McDonald DP that a person cannot avoid his or her obligations to answer questions accurately and truthfully in immigration applications by merely asserting that reliance was placed upon someone else to provide this information and it is they who should be held solely responsible for any deficiencies. There are obviously varying degrees of inaccuracy and untruthfulness in the information that may appear in particular applications, but where an applicant simply signs a blank form and then leaves it to someone like a migration agent, lawyer or friend to fill in the details this would seem on the face of it to amount to reckless conduct. It is also conduct which would fit within the definition of being knowingly involved in the making of any subsequent false or misleading statement contained in such an application, even though it was not completed in person by the applicant. To hold otherwise would be to render largely purposeless much of the processing of immigration applications.

11. Turning now to Direction 17 (and in this paragraph 11 references to clauses should be construed as references to clauses in Direction 17):

(a) Clauses 1.9(a) (dot point 4) and 1.9(b) are clearly relevant. If proved in a court of law (and see in this context clause 2.6(c)) the relevant actions could result in convictions under the Act and substantial penalties.

(b) As regards to clause 1.11 there was no evidence whatsoever of recent good conduct; indeed the period which has lapsed since the second of the two spouse visa applications is short.

The Tribunal notes that Mrs Golding's offences against the Act did not occur once or sporadically. On the contrary they occurred repeatedly throughout the whole of her stay in Australia, a period of approximately two years, and demonstrate a wilful disregard of her statutory obligations. The penalties which could be imposed are such that I am obliged, in accordance with Direction 17, to treat them as serious offences. Even assuming that her confessions at the Australian embassy can be considered to be evidence of recent good character (which is debatable) it does not have the effect that Mrs Golding passes the character test.

(d) It is perhaps relevant to note that Mr Turner confined his closing submissions (exclusive of his closing submissions in reply) to an argument that Ms Andary did not fail the character test. He was aware of the fact that, as set out previously, in many decisions of this Tribunal in "similar fact situation" cases (excluding cases where children were involved), applications of this nature have gone against the applicants. Mr Turner asked the Tribunal to find in a manner different to those decisions and in effect to "strike out anew". As I said in both Re Golding and Re Peljha, I agree with those other decisions and in any event Brennan J (in his former capacity as President of this Tribunal) said in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634 that consistency in decision making is desirable. In all the circumstances, the Tribunal finds that Ms Andary fails the character test.

12. This brings me to the discretion contained in part 2 of Direction 17.

(a) The starting point is of course to consider the primary considerations referred to in clause 2.3. Clause 2.3(c) is not relevant; as regards 2.3(b), I consider that in all the circumstances the expectations of the Australian community would be that having regarding to the manner in which she has treated the Act, Ms Andary should not be rewarded with a visa; I refer in this context to paragraph 39 of the decision by Deputy President McMahon in Re Msumba, and which is previously set out in paragraph 9 of these Reasons.

(b) Clause 2.3(a) must be considered in conjunction with clause 2.5 of Direction 17. In this respect the conduct was unquestionably serious; Direction 17 (and see in this context in particular clause 2.6(c) of Direction 17) has the effect that this must be so. Leaving aside the larceny conviction which, having regard to the sentence imposed, cannot be treated on its own as being very serious, the likelihood of recidivism in relation to the Act is probably remote. Specifically as regards clause 2.5(c) I have dealt previously in paragraph 8(d) of these Reasons with the question of general deterrence.

13. There is, as I have said, no evidence of recent good conduct. I am however entitled and indeed obliged to take into account the marriage between the Applicant and Ms Andary and the harm and distress which continued separation will undoubtedly cause to both of them. That said, the Applicant knew of Ms Andary's position before he married her. The Applicant may not wish to return to Lebanon; however it is relevant to note that he has family there, he has worked in Lebanon in his trade as a house painter, and could no doubt be at home once again in Lebanon. I accept, though, that to return to Lebanon is not what he wants.

14. Mr Turner referred repeatedly to the fact that to refuse the application would amount to punishment of the Applicant who is entitled to have Ms Andary with him as his wife. As he put it, Ms Andary may well have offended but the Applicant did not, and to deny her presence to him as his wife would be unfair. The contention cannot be justified; the Applicant knew what Ms Andary had done, and he married her with knowledge of the fact that she might not be permitted to return to Australia. Mr Turner pointed to the fact that the marriage took place soon after the couple met; I fail to see how the duration of their courtship can be relevant in this context.

15. In summary, Ms Andary must fail the character test. As to the discretion, the negative factors are not by any means outweighed by the fact that she is married to the Applicant.

16. Accordingly the decision under review is affirmed.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Block

Signed: ...........[Marcus Ryan].......................................

Solicitor for the Applicant Ray Turner C/- Tzovaras Legal

Solicitor for the Respondent Nathan Cureton C/- Blake Dawson Waldron Solicitors