Al-Masri (Migration)

[2018] AATA 2721

Al-Masri (Migration) [2018] AATA 2721 (9 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amir Mohammad Al-Masri

CASE NUMBER:  1730478

DIBP REFERENCE(S):  BCC2017/3656016

MEMBER:Michael Cooke

DATE:9 July 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 09 July 2018 at 11:10am

CATCHWORDS

Migration – Cancellation – Bridging A (Class WA) – Subclass 010 (Bridging A) – Risk to safety and good order of the community – Convicted and jailed for a serious indictable offence – Blames another un-named accomplice for the crime – Compassionate reasons – Father of a young daughter – Decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s116

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 November 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 010 (Bridging A) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e) on the basis that the applicant who is incarcerated was a threat to the health, safety and good order of the Australian community or a segment of the Australian community. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 22 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Sandy Kourouche, who is the applicant's wife and his brother Salameh al-Masri. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The Hearing

6. The Tribunal asked the applicant whether he had gone to trial. He said he had done so. It asked him whether he was convicted. He answered yes. The Tribunal asked him whether he had been sentenced. He said he awaited sentencing which was due to happen in September 2018.

7. The Tribunal then read out details of the criminal activity for which the applicant was charged and informed that he was later convicted. The details are found in the Notice of Intention to Consider Cancellation and the delegate’s decision which was submitted to the Tribunal. Both are to be found on the Tribunal file.

   Information provided by the NSW police alleges that on 1 September 2017, between 6:30am and 7am you climbed through a closed unlocked side window of a private residential address in Tempe. After entering the property you used a roll of blue painters tape in your possession to restrain the victim inside the property. In doing this you approached the victim from behind and placed your hand across her mouth. The victim felt immediately in fear and tried to fight you off. You wrestled with the victim to the ground and punched her to the face causing her nose to bleed profusely. You then attempted to tie the victim's hands and feet together.

   During the struggle you used an Ethernet cable to tie the victim's hands together and kicked the victim in her stomach and the side of her body several times as she was screaming: -The-victim has lost consciousness at this time due to the pain inflicted. You then ransacked the premises. At about 7:10am the victim has regained consciousness and observed you exit the house via the front door.

8. The applicant’s wife then presented a personal statement from the applicant which was written in Arabic and which was interpreted into English with the assistance of the Arabic interpreter. The applicant said he loved his wife and Australia. He found everything a bit difficult after he arrived and met people who took drugs and told him that he could make money. He went to their house because they always had drugs and money.  He did not know what they were doing when they went inside the house. They (the criminal associates presumably) then leant on him to commit the crime as he did not have money and he did not really know what they were doing. When they told him he told them he did not want to do this. They started yelling at each other and threatened him and his family. He had not done anything like this in his life. He was never in jail or a police problem and he was under the influence of drugs and did not know what to do.

9. The applicant was asked to comment on the information in the criminal charges. In rebuttal he denied that it was he who had performed the assault on the victim for which he was charged. He said he did not do it. He said he was high on ‘ice’ at the time and had an accomplice - who was the person responsible for the actual serious assault. He did not know what he had done until the police showed up at his house and arrested him. He had been found out through fingerprints because the accomplice had been wearing gloves and he did not wear any gloves. He was remorseful for his actions and had never meant to get involved in such an offence. He was a drug addict. In his drug-addled state he feared that if he did not participate in the home invasion ‘they” (presumably criminal elements) would have harmed his wife and daughter. He felt compelled to participate. He apologized to the victim and anyone that was hurt. He did not know the woman involved. He stated he had been unemployed as he had been working and studying English and then was learning the concrete business - part-time. Unfortunately the people he encountered were a bad lot and he had fallen in with them and this had led to him becoming a drug addict.

10. He insisted he had no prior criminal history in Jordan. The Tribunal noted that his submitted Jordanian Penal Certificate on the Tribunal file confirmed this claim. He commented on his father’s death and said he was drug-addled and did not know why he committed the crime and had been threatened by his Jordan-based family. They blamed him for inducing his father’s heart attack death through the shock at his jailing.

11. He did not know whether the Government would deport him and he wanted a second chance to stay in Australia with his wife and child. He would lead a proper life - not like before - in the future and do no wrong. His wife had seen him go to prison and it is hard for her to look after her daughter and son with MS. He was attached to them and did not want to lose them or anything bad to happen to them. He begged the Australian Government to forgive him for what he had done and it would not happen again. Please do not send him back to Jordan and give him another chance. He informed that he needed crutches as he had a problem with his leg. He feared he had contracted an infection which had not yet been treated by the prison authorities.

12. The applicant’s wife also begged the Tribunal to not cancel his visa because she had a young daughter and her youngest son by her previous husband had been discovered at age 20 (from a recent diagnosis) to suffer from Multiple Sclerosis (MS). She needs the applicant’s assistance and his daughter missed him.

13. His brother said that he had been wrongly treated by their Jordan-based family and it was not fair that they blamed him for his father’s death from a heart attack caused by the applicant’s jailing. He had taken his father’s remains back to Jordan and he observed that the family had been antagonistic towards him. For instance when he was due to leave (mysteriously) he could not find his passport causing him to miss his flight and which he later found. He also begged the Tribunal to allow his brother to stay in Australia as he was starting a new business and would involve his brother in that endeavour.

14. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(e). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

15. The applicant was (according to oral evidence) convicted of the below criminal offence and is presently in jail awaiting sentencing. According to the Notice of Intention to Consider Cancellation he was arraigned for the offence of aggravated break and enter commit serious indictable offence – deprive liberty- SL (strictly indictable). The applicant’s former representatives were going to respond to the Notice of Intention to Consider Cancellation but withdrew their services so no formal response been received from him. The applicant’s wife has responded to the Notice by way of a submission in which she recapitulates a potted history of the applicant’s behaviour since his arrival, the death of his father, her husband’s claimed anger and anxiety depression over his father’s death, the claimed threats via texting to the applicant and his family if they returned to Jordan, her son’s Multiple Sclerosis diagnosis and its effect on his well-being and her daughter’s longing to be with her father  and the general emotional toll caused by the distance of the applicant from his family (T1, ff. 65-66).

16. The Tribunal has read out (in the hearing) details of the commission of the offence and asked the applicant to comment on the fact that he had been found guilty (according to him) of a very serious crime. The applicant for his part denies being the principal perpetrator of the outlined crime. He blamed another (un-named) accomplice for the crime and claimed his being there was due to his drug-addled mental state on the day and fear of potential harm to himself and his family if he did not so-operate in the crime. However, there is no suggestion in the charges (see para.4 summary above) that the applicant was accompanied by another individual on the pertinent day. Rather it appears that he committed the crime unaided. Therefore, the Tribunal gives his demurral/rebuttal of his guilt no weight as a mitigating factor in considering the setting aside of the visa cancellation. The Tribunal is further satisfied when his rebuttal is weighed against the full gamut of his criminal activity on that occasion - that he is not a witness of truth and has poor credibility

17. The Tribunal has considered the applicant’s oral evidence and that of his supporters in the hearing. It has further considered his personal statement that was interpreted to the Tribunal and place into the hearing record. The Tribunal has concluded (despite all the claims and arguments presented by him and his supporters in oral evidence and in response to the s.119 invitation) that ‘the presence of the applicant in Australia is or may be or would or might be a risk to the health, safety or good order of the Australian community or a segment of the Australian community’.

18. Therefore, the Tribunal finds that a ground for cancellation in s.116(1)(e)(i) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

19. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

    ·the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

20. The visa applicant came to Australia to be the spouse of an Australian citizen. The applicant has insisted he has a compelling need to remain in Australia due to his Australian–born daughter’s presence.

    ·the extent of compliance with visa conditions

21. There is no evidence that the applicant has not abided by visa conditions.

    ·degree of hardship that may be caused (financial, psychological, emotional or other hardship)

22. The applicant and his wife and brother have argued that they would suffer hardship as a result of a decision to cancel the applicant’s visa. His wife has a very young child to care for and the applicant argues she would not be able to do so by herself. She has also the added burden of her (recently diagnosed with MS) youngest son. The applicant’s brother has suggested in the hearing he has his only family to care for and would not be able to assist the applicant’s wife. He has raised the spectre of family retaliation against the applicant if he were to return to Jordan based on claimed Internet (untranslated) text message threats (T1, ff.77-82).The Tribunal agrees that both the applicant and his wife and child would suffer significant emotional hardship in a visa cancellation through his absence in their lives. The tribunal gives this claim significant weight. The applicant was not earning a wage so the Tribunal doubts that financial hardship is a mitigating factor and gives it little weight.  The tribunal is not satisfied that these mitigating claims alone are a basis to set aside the cancellation.

    ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

23. The circumstances in which the ground of cancellation arose were that the applicant was involved in a very serious crime called ‘aggravated break and enter commit serious indictable offence – deprive liberty- strictly indictable’. Such a serious offence (for which he was convicted but had not been sentenced at time of hearing) has a substantial penalty attached being at minimum 5 years incarceration and maximum of life in jail. The applicant claims that his behaviour took place in a drug-addled state suggesting the possibility of it being ‘beyond his control’.  The Tribunal has considered the evidence presented of the applicant’s behaviour on the day of the crime and there is no evidence that he was on drugs on that occasion other than his say so. The applicant has been found to be an unreliable witness by the Tribunal so the Tribunal gives no weight to this (‘beyond his control’) claim as a mitigating basis for setting aside the decision.

    ·past and present behaviour of the visa holder towards the Department

24. There is no evidence that applicant has any adverse history with the Department. He did fail (despite being given considerable latitude by the Department) to submit a Jordanian Police Clearance. This lack of information formed the basis for the refusal of his Subclass 100 visa. He has subsequently submitted a Jordanian Police Clearance document to the Tribunal – which is not adverse to him.

    ·whether there would be consequential cancellations under s.140

25. There would not be consequential cancellations under s.140.

    ·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

26. The applicant is presently in criminal detention and will remain so indefinitely until completion of his (yet to be decided) sentence. He would then be subject to immigration detention. He would be prevented from making a valid visa application without the Minister’s intervention.

    ·whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

27. When considering whether Australia's international protection obligations would or may be breached if the applicant's visa is cancelled, the Tribunal notes the applicant has engaged in illicit drug use (and he concedes he is a drug addict). He has been charged and convicted of various offences (including for violence). Therefore, his character would be considered should he, for instance, subsequently seek protection in Australia. The applicant's material protection claims follow.

28. First, the applicant (and his spouse and his brother) have claimed the applicant has been threatened with retaliation by being targeted for harm by his Jordan-based family. The basis for this is that he is blamed for the sudden death in Australia of his father from a heart attack when he visited the country and saw his son (the applicant) gaoled. The Jordan-based family members (it is claimed) insist the shock of the applicant's incarceration caused the father's heart attack and subsequent death. It is claimed they wish to retaliate as the father was only a person in his late 50s.

29. The applicant's wife has submitted (untranslated from Arabic) copies of (claimed) threatening text messages in the hearing (T1, ff.77-82). Some English language annotations were also placed on the documents by way of explanation. However, based on the information presently before it, the Tribunal finds the claims to be speculative and short on detail. Furthermore, the applicant will not be released for at least 5 years in which time the basis for any real chance of harm may have been eliminated by the effluxion of time.

30. The Tribunal is not satisfied on the evidence that the applicant faces a real chance or risk of serious or significant harm from his family. In any event if he did (which the Tribunal does not accept) the Tribunal believes , when the country information is considered, that the applicant could safely and reasonably relocate within Jordan(1).Putting aside claims for protection, the Tribunal is not convinced that the family will be motivated to cause harm of any degree to the applicant.

31. Second, regarding double jeopardy and, therefore, whether Jordanian nationals are re-prosecuted under Jordanian law for criminal convictions already served and finalised in a foreign country (2); no information was found about re-prosecutions under Jordanian law in relation to crimes where there has been a conviction and a sentence served in a foreign country. Further, regarding any information about whether Jordanian criminal returnees (who hold either finalised or outstanding charges relating to crimes committed in a foreign country) are subject to adverse treatment upon return to Jordan, no information was found about the treatment of criminal returnees to Jordan (3).

32. Third, the applicant is an admitted drug addict. However, and even assuming he continues with that practise should he return to Jordan, the country information considered by the Tribunal indicated that rehabilitation services for same are fairly readily available (1). It, therefore, appears he would not suffer serious or significant harm for this reason in Jordan.

33. That being said, if the applicant subsequently chose to lodge a Protection visa in Australia, and even if he were found to have a real chance of suffering serious or significant harm in Jordan, the Protection visa may be denied to him based on character grounds. Assuming this to be correct, the Tribunal understands this outcome needs to be taken into account when considering whether to cancel his visa.

34. The applicant’s has a conviction for serious crime and admits he is a drug addict. The Tribunal has found him to be an unreliable witness due to his continued insistence that he was not involved in the assault. The facts speak otherwise and have led to a conviction for the crime and incarceration. Together this finding has satisfied the Tribunal that - as a primary consideration and despite being the father of a young Australian citizen - his remaining in Australia is not in the best interests of his child and family. If the applicant left Australia, he would not be able to visit his child, but he could contact her and her mother by telephone or digital means. She, in turn, might choose to visit him in Jordan. The Tribunal is satisfied - despite her mother’s insistent claims - that separation from the applicant would have a negligible impact on the very young child. The Tribunal is satisfied on balance that it would be in the best interests of his child and family in general if the applicant were removed from Australia - in view of his violent criminal behaviour and history of addiction to the drug ‘ice’.

    ·if it’s a permanent visa, whether the former visa holder has formed strong family, business or other ties in Australia

1. The applicant has formed strong family ties in Australia. He has an Australian citizen daughter wife and brother. He has step-sons from his wife’s first marriage one of whom lives with his mother. The Tribunal gives this factor significant weight.

   ·any other relevant matters.

2. The applicant’s wife has four children from her previous marriage. Her former spouse is 70 years old (she informs). She has custody of the youngest child who is 20 years old and he has been diagnosed with Multiple Sclerosis. She is also the mother of a three year old daughter with the applicant. She insists that there are strong compassionate reasons for setting aside the cancellation. The Tribunal has given her claims significant weight.

   Findings

3. The applicant came to Australia after marrying an older woman who had a grown family of four. She then had a fifth child (daughter) with the applicant. The applicant has a brother in Australia who appears from his oral evidence to be a successful person. The applicant made a decision to come to a new country with a different language. He would have logically anticipated that it would require reorientation and a period of acclimatisation. His wife has submitted (in mitigation of his behaviour) that dislocation issues and employment difficulties led to a shortage of money and a quarrelsome marriage. She admits that rather than start his life anew with his new family (even if it were hard scrabble) the applicant chose instead to seek the company of delinquents.  Rather than grasp this wonderful opportunity with both hands and struggle on - he involved himself with the Sydney criminal milieu.

4. As a result he became a self-admitted serious drug addict (‘ice’). The fact that he was the father of a young child. He also had a loving wife and brother and a sick step-son to look after as well.  All of this seems to have been of little consequence. Having chosen a delinquent life he was eventually charged and convicted of a crime of the highest degree of seriousness (strictly indictable). He demonstrated by this heinous crime a total lack of consideration for his victim’s long-term physical and mental health. Such behaviour is totally outside of Australian community standards.

5. The applicant and his family have presented a case for the applicant’s cancellation to be set aside. This had been primarily based on compassionate reasons regarding his family’s need to have him remain in Australia as a father of an Australian citizen and as a husband and brother.  He has indicated his remorse at his crime and made a promise in oral evidence not to repeat such criminal behaviour if the cancellation were to be set aside.

6. The fact is, however, that the applicant has committed and been convicted of a vicious crime for which he will be spending a considerable period of time in jail. He has also fatally prejudiced (in the event of cancellation) any possible future grant of permanent residence to himself and hurt his family vicariously. He has presented an alternative crime re-enactment scenario in the hearing and blamed an unnamed perpetrator for the crime along with the impact of his own drug addiction. The Tribunal finds his claims implausible when weighed against the evidence presented by the Police investigation for which has subsequently been convicted and jailed. The Tribunal gives his alternative scenario no weight.

7. The Tribunal has considered the applicant's claims relating to him being remorseful about past conduct and that he believed he would reform and never engage in crime again. He believes he should be given a 'second chance'. He has raised family and compassionate considerations for overturning the delegate's decision. All of this has been considered by the Tribunal. As noted above, the Tribunal also accepts the applicant may not be granted a Protection visa in Australia on character grounds (though he still would not be re-fouled in breach of Article 33 of the Refugees Convention).

8. Despite all the evidence and submissions (presented by him or on his behalf and accepted by the Tribunal), the Tribunal finds that when his criminal history is weighed against his claims, greater weight should be given to the fact that 'the presence of the applicant in Australia is or may be or would or might be a risk to the health, safety or good order of the Australian community or a segment of the Australian community'.

9. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

10. The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

    Michael Cooke
    Senior Member

    
    

    (1)  Searches were undertaken using CISNET, Factiva and UNHCR Refworld databases and general internet searches. Searches included local and international news media, major human rights reports, major foreign government reports and peer-reviewed journals. 

    (2)  'Regional Report on the Near East', Council of the European Union, Austrian Parliament, 13 April 2015, p.6,

    (3)  CISEC96CF110218; and 'The Last Chapter in The Life of a Drug Addict', Arab Reporters for Investigative Journalism, 3 March 2007, CXE90FC0120439