Al Saedi (Migration)

Al Saedi (Migration) [2023] AATA 1458 (3 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Saad Mohan Hatam Al Saeidi
VISA APPLICANT:  Ms Noor Majid Jasim Dulaimi
REPRESENTATIVE:  Mr Kerry Murphy
CASE NUMBER:  2108340
DIBP REFERENCE(S):  BCC2019/2332154
MEMBER:Meena Sripathy
DATE:3 February 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309.213 of Schedule 2 to the Regulations; and
·cl.309.222 of Schedule 2 to the Regulations.

Statement made on 03 February 2023 at 12:28pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – sponsorship limitation – convicted of a relevant offence and has a significant criminal record – convicted of murder of former wife – 15 years imprisonment – whether reasonable to approve the sponsorship – earlier incident of domestic violence – fasl process undertaken and payment of diyya – time spent in Iraqi correctional system – best interests of the sponsor’s children – length and nature of the relationship – visa applicant knowledge of the circumstances of the sponsor’s criminal record – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.20KC, 1.20KD; Schedule 2, cls 309.213, 309.222
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 17 June 2021 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 30 April 2019 on the basis of her relationship with her sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.222 because the sponsorship referred to in cl.309.213 was not approved by the Minister under r.120KC.
The sponsor applied for review of the decision to the Tribunal on 28 June 2021.
On 13 April 2022 the review applicant, through his representative, requested priority processing of the application, which was granted on 21 April 2022. The matter was constituted to the present Tribunal on 21 September 2022.
The review applicant appeared before the Tribunal in person on 17 October 2022 and 14 December 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, the review applicant’s two children and Dr Talib Hashim. The review applicant was represented in relation to the review.
The issue in the present case is whether the visa applicant meets cl.309.222.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
Information in the visa application indicates the visa applicant was born in 1994 and is a Iraqi national. She is sponsored by the review applicant, who is an Australian citizen born in 1974 in Iraq. The parties claim they first met in February 2018 and committed to a long term relationship and married in February 2019 in Baghdad. The present application was lodged on 30 April 2019. The visa applicant has declared no previous relationships. The sponsor declared that he was previously married to Amna Arkan Thamer and sponsored this partner to Australia in 2006. There are two children from this relationship, born in 2007 and 2010 respectively. The sponsor indicates the marriage ended in March 2013 when his wife passed away.
A copy of the death certificate for the sponsor’s first wife was included in documents submitted with the application, indicating that her death was caused by ‘slaughter’.
On 26 February 2020 the Department sent the visa applicant a Request for information including a request for a consent form signed by the sponsor, completion of a Form 80 for the visa applicant and a Police Certificate for the sponsor.
The requested documents were provided in March 2020, with the exception of the Statutory Declaration from the sponsor. In an email dated 18 March 2020, the visa applicant explained that the sponsor was unable to sign the declaration because he has a criminal conviction in Iraq in 2013, that was notified to the Australian embassy in around 2014. The sponsor believes his case was dealt with unfairly due to the political position at the time of his ex-wife’s father, who used his position to interfere with the court. Following an appeal, the sponsor was released from jail in January 2018 after serving 4 years instead of 13 years. The visa applicant indicated that she has strong ties with the sponsor and his children and they are happy to provide any further information. Attached to the email was a copy of the original and English translation of the Court Order dated 10 July 2018 relating to his release under an amnesty order in January 2018.
On 7 April 2020 the Department sent a request to the sponsor asking him to provide a signed statement detailing the offences, convictions, sentence, time served and other relevant details, relevant court documents, and a completed Form 80.
On 20 April 2020 the following documents were submitted to the Department:
·     Statement signed by sponsor outlining the details of his offence, conviction, sentence, time served and other relevant details. In this statement, he declared that “ I have been jailed in Baghdad for 5 years, out of 15 years that has been issued by the criminal court in Baghdad accused of killing my ex-wife “Amna Arkan Thamer” as showed in the attached document 1”;
·     Court document issued by Al Karkh Criminal Court in Iraq, dated 16 September 2014 confirming that the sponsor has been convicted to serve 15 years in jail, in accordance with section 402/1 A of the Iraqi Penal code. It also indicates that “they destroyed the sharp instrument (a spear), mentioned in the confiscation report dated 06 March 2013 relating to the case of Amna Arkan Thamer”, his former spouse;
·     Form 80 where the sponsor declared that he was sent to prison in Iraq for five years;
·      A Letter from Australian Embassy in Baghdad dated 19 June 2013, in which they detail their consular responsibilities and note that they are aware of the sponsor’s arrest in Iraq.
On 16 March 2021 the Department sent to the sponsor an Invitation to Comment letter, inviting his comment on information that has been provided to the Department which demonstrates that he has been convicted for murdering his former partner and has a significant criminal record in relation to this offence. A copy of the court document issued by Al Karkh Criminal Court in Iraq and copy of the decision issued by the Iraqi Ministry of Justice was attached for his information and comment.
The sponsor was invited to comment on why it was reasonable to approve his sponsorship, despite the conviction and significant criminal record, noting the following matters that the Minister, or delegate of the Minister, can have regard to: the length of time since the sponsor completed the sentence (or sentences) for the relevant offence or relevant offences; (b) the best interests of the following people: (i) any children of the sponsor, (ii) any children of the applicant who is seeking to satisfy the primary criteria for the grant of the visa concerned; and (c) the length of the relationship between you and the applicant who is seeking to satisfy the primary criteria for the grant of the visa concerned
On 12 May 2021 the sponsor, through his representative, provided a response to the invitation to comment on the sponsorship approval, with the following supporting documents:
·Statement of visa applicant.
·Statutory declaration of sponsor dated 12 May 2021.
·Letter from Yousef Saad (undated).
·Letter from Adam Saad (undated).
·Statutory declaration of Ahmed Al Saedi, brother of sponsor dated 10 May 2021, and scan of Australian citizenship certificate for Ahmed Al Saedi.
·Scan of certificate of registration of business name by sponsor dated 29 March 2010, and Print/scan of current Business registration for Maradona Barber Shop Auburn from ASIC website.
·Clan Reconciliation and Compromise and translation dated 8 July 2015 (Fasel).
·Letter from Victims Services NSW to Mr Al Saedi dated 17 November 2020.
·Scan of letter from DPP NSW re Yousef Saad dated 12 April 2021.
·Letter from real estate agent Starr Partners confirming sale of house 34 Cross St Guildford dated 18 March 2013.
·Letter from Network Conveyancing, Conveyancers for the purchaser of 34 Cross Street Guildford confirming settlement on 18 April 2013.
In the accompanying legal submission, the representative set out the background and circumstances of the death of the sponsor’s first wife and subsequent inception and development of his relationship with the visa applicant. The submission conceded that the offence for which the sponsor was convicted comes within the relevant offences of r. 1.20KC(2)(a).
Detailed submissions were made on the following issues that warranted the exercise of the discretion in r.1.20KC(4): Significant compensation payment to family of victim (fasel process); time spent in Iraqi correctional system; two Australian children of sponsor; Extremely close attachment between Australian children and visa applicant; and concern about assault on eldest child by offender in NSW (DPP letter).
On 16 May 2021 a decision to refusal the sponsorship under 1.20KC(1) was made by the Department. File notes setting out the reasons for the decision refer to the documents provided by the sponsor in response to the invitation to comment, but the decision maker ‘could not ignore the strong indicators of potential violence that the visa applicant may be exposed to should she be granted the visa’. In forming this view the following matters were taken into consideration and given weight: the seriousness of the sponsor’s conviction and admission that he killed his ex wife; the duration of the relationship; and the best interests of the sponsor’s Australian citizen children. Department file records from BCC20192332154 provided to the Tribunal suggest this decision record was not sent to the sponsor. A file note dated 16 June 2021 states “the Department is not required to disclose the reasons for sponsorship refusal, just the outcome.”
On 19 May 2021, the Department sent the visa applicant an invitation to comment letter inviting comment on information that her sponsor’s sponsorship application has been refused approval pursuant to regulation 1.20KC of the Migration Regulations 1994.
On 16 June 2021, the representative responded, noting that reasons for the refusal of the sponsorship application had not been provided to the sponsor. Reference is made to the earlier submission which focussed on the best interests of the two children of the sponsor who are part of the visa applicant and sponsor’s family unit and who are in need of her care and support. A further statement from the visa applicant dated 6 June 2021 indicating her awareness of the circumstances of the death of the sponsor’s first wife and her relationship and attachment with the sponsor’s children. Also provided is an email exchange between the representative and the DPP relating to the sentencing in a matter involving the sponsor’s son as a victim.
The delegate refused the application in a decision made on 17 June 2021, on the basis that the sponsorship was not approved and therefore the visa applicant does not meet cl.309.222.
Evidence before the Tribunal
On 13 April 2022 the review applicant, through his representative provided a submission and request for expedited processing of the review application. Various supporting documents were provided including documents provided earlier to the Department and the following new, or updated, documents:
·Statutory declaration of the visa applicant dated 18 March 2022 (plus a Word version of declaration of visa applicant (provided due to poor quality of scan of declaration).
·Statutory declaration of review applicant dated 11 April 2022.
·Statutory declaration of Ahmed Al Saedi, brother of review applicant dated 8 March 2022.
·Psychological report of Kasim Albaie dated 30 November 2021.
·Email from DPP dated 16 June 2021.
·Evidence relating to review and visa applicant’s visit to Turkey in January to February 2022 including itinerary of travel to Turkey, scans of visas for Turkey for Mrs Dulaimi; photos.
The representative’s submissions were substantially the same as made previously to the Department in May 2021.
Further documents have been submitted from August to October 2022:
·Statutory declaration of the visa applicant dated 27 July 2022.
·Support letter from sponsor’s son’s treating doctor dated 29 September 2022.
·Statutory declaration of the review applicant dated 6 October 2022.
Evidence at hearing 17 October 2022
At the outset of the hearing the Tribunal disclosed the existence of a s375A certificate issued by the Department regarding certain information, gave a copy of the certificate to his representative and invited any submissions. The Tribunal also indicated that, while the certificate prohibits disclosure of the information contained in it to him, it does not consider the information relevant to the issues under consideration in this matter and does not propose to place any weight on it. The representative indicated, not knowing anything about the contents of the information, he has no submissions to make on this.
The applicant gave evidence about his current living and family circumstances, previous marriage and the circumstances of his late wife’s death, and his current relationship with the visa applicant.
The applicant confirmed his current address and that he lives there with his two sons. They moved to this address about one month ago, because of an incident that occurred at their previous address. He is self employed and has his own barber shop. He has 2 employees in his business and works 4-5 days a week, from around 9 am to 6 pm. He takes his children to school in the morning before work and picks them up before returning to work for a few hours. He works on the weekends and the boys usually accompany him to the shop on those days. The boys are in years 7 and 9 at the local high school. The applicant has two brothers in Australia, Ahmed lives in Melbourne but he recently went to Boston, USA for a two year work contract. He is an academic with a doctorate in the medical field and works at the university.[1] He travelled there with his wife and two young children. Raad lives in Sydney, close by to the applicant. He is also married and has four children ranging in age from teenagers to early 20’s. He is close to both families. Raad’s family help him to look after his sons, they go there for home cooked meals and sometimes help with school pick ups and drop offs. The visa applicant has no family in Australia other than the review applicant and his sons. In Iraq, the review applicant has only siblings. His mother passed away last year from cancer. His father passed away in 2012. He has four brothers and two sisters, all are married and have their own families, and all live in the same area.
[1] Dr Ahmed Al Saedi - Research Fellow - Harvard University | LinkedIn
The Tribunal asked the review applicant about his first marriage to Amna Arkan Thamer. They were married in an arranged marriage in 2006 in Iraq. He sponsored her to come to Australia and they had two children together, both born in Australia. She was around 20 years old when they married and he was around 32 years old. In 2012 she returned to Iraq with the boys, for a holiday. He joined them some months later in February 2013. The purpose of the trip was a holiday to visit family.
The Tribunal asked the review applicant about the incident on 6 March 2013 when his ex wife died. He said they were at her family’s house, in the kitchen, and became involved in a verbal argument. She grabbed a spoon to hit him and he grabbed an implement to defend himself and hit back at her. The implement he grabbed was a knife and it struck her neck and she fell back and subsequently died from the blow. The review applicant became visibly upset as he described the incident. He said he did not mean to kill her. When he saw the blood he called the police straight away. Her family members including sisters and parents, were present in the house at the time but not in the kitchen where it happened.
After this they settled the matter between the families through a compensation payment. But there were court proceedings also. The review applicant said that it was handled in the family court not the criminal court. He was held at the police station and his children and mother were allowed to visit him twice a week. He confirmed his children lived with his mother and brothers in their family home. He said in accordance with Iraqi culture the children go with the father, and his in laws are fully supportive now and understand that the incident that led to his wife’s death was an accident. He added that they know and support the visa applicant as his wife and mother to the children.
The Tribunal noted his description of the support of his in laws does not appear to be what he stated in him statutory declaration. He said in the beginning they were of course upset by what happened but over time they came to accept it was an accident. When asked how long this took he said it was over a year by the time the fasel was arranged and accepted, but then the court process took its own time. After the fasel was accepted her family agreed to drop the charges and eventually he was released from prison. The Tribunal put to the applicant that the documents he has provided in relation to this matter do not appear to support the process he is describing. The document indicates in September 2014 he was convicted in a criminal court and sentenced to 15 years in jail, and this would suggest that it was too late to ‘drop’ charges. The review applicant repeated that following the settlement of the compensation the family dropped their claims and after this the court continued with its procedures. The Tribunal indicated it would consider his evidence and the documents before it but repeated its concern that there does not appear to be any clear connection between the finalisation of the settlement and his release from prison and invited him to provide any further evidence about this if available.
The Tribunal asked the applicant if he had any issues or criminal proceedings relating to his first wife prior to her death, in Australia. He said they had arguments before also, and her friends here had told her she can call the police and she did this. He had an AVO in relation to this. Later she went to the police and asked them to drop it. The Tribunal asked about the criminal conviction of common assault referred to in the NPC he submitted to the Department. He described an incident when she was wearing a nose ring and when he pushed her it started to bleed and the police came and he went to court over this incident. He said this may have been the incident which resulted in an AVO. He said he is sure that’s the only incident between them in Australia.

The Tribunal put to the review applicant it may have some concerns about accepting his account regarding the incident that led to his first wife’s death, given the inconsistencies with the documentation he provided and his own Statutory Declaration where he describes his father in law’s actions and influence on his treatment very differently. He said that he doesn’t believe he has given contradictory evidence, everything he has said is truthful. His relationship with his in laws is now all resolved. They accept what happened was an accident and they are supportive of him, his sons and the visa applicant now.
The Tribunal asked about the fasel process. He said about 2 years after the incident members of his family and her family started to meet to discuss the matter of compensation. Prior to this, his children were living with his mother and brothers’ families. Relations with his first wife’s family was not good in this period. They used the money from the sale of his house in Australia to pay the compensation. The Tribunal noted that documents he provided indicated the sale occurred in March-April 2013, which was only weeks after the death of his first wife and queried how it would have been arranged so soon. The review applicant then said in fact the house was on the market to be sold some 6 months prior to when it sold in April 2013, well before the incident. The money was transferred to Iraq when all this happened. Soon after the incident they almost had a solution, but then it failed. Ultimately the fasel was agreed to several years later. The Tribunal noted the document he provided indicated a date in 2015. He agreed it would have been then. The Tribunal noted he was not released until 2018. He agreed.
The Tribunal discussed with the review applicant his relationship with the visa applicant. He said the children were living with his mother and two brothers and their families. They each had 2 or 3 children and their wives. The visa applicant was a neighbour and she came to hear about the children and what happened to their mother and wanted to help his mother care for them so she started coming around. She was herself previously married but she divorced after a very short time. The review applicant said he understood her husband was violent and also that he could not have children and these were the reasons she divorced him. The review applicant did not know any other details. He did not know when she married or when she divorced. It was somewhere between 2014 and 2016 that she started spending time at his mother’s house helping the children. She began visiting him at the police station with the children around then. When asked what he understood were her reasons for doing this he said she was lonely and divorced and she approached his family and asked if she could help. The Tribunal noted that his mother had her daughter in laws and the other children there also and given this why would she need help from an outsider. He said they were all busy with their own families and his mother was elderly. The visa applicant lived with her own parents and visited their house.
The Tribunal asked where he went when was released. He said he came to live with his mother and siblings and children in 2018 upon his release. The visa applicant did not live with them until after they married in February 2019. He said it was his mother who suggested he marry her, because by then she had made a strong connection to the children and his mother thought she was a good person for him. He agreed and asked her family for permission and they married. They lived together after that until he and the children came to Australia.
The Tribunal discussed with the review applicant the reports of the psychologist he provided, noting that they indicate the boys have reported no significant events in their history. It asked what the boys know about the circumstances of their birth mother’s death. He said they know she died but do not know about his involvement in it. When asked what they understand about his time spent in police custody/prison in Iraq he said they didn’t really realise where he was, they thought he was in a hospital.
Evidence from visa applicant
The visa applicant confirmed she lives in New Baghdad with her in laws, the review applicant’s brothers and their families. She said she has been living with them for quite a long time, previously looking after the children Youseff and Adam.
When asked how she came to be involved with this family, she said she was their neighbour and in their tradition they get involved in each other’s lives. She heard about the ‘accident’ that happened with the review applicant’s former wife and she thought she should go and help the children. When asked what she knows of the incident she said she understood it was an argument between them and then he accidently killed her, but it was not intentional. When asked who told her this, she said his late wife’s family told her. She said she knows the review applicant is an educated person and he would not do anything like that intentionally. He contacted police himself. If he was acting deliberately he would have run away.
When asked when she became involved with the family, she said it was straight away, soon after the incident. She said Youseff was around 5-6 years and Adam was 2-3 years. She was the primary carer for them ever since then. When asked why she undertook this role she said the mother was elderly and the other relatives had their own children.
The Tribunal asked about her own relationship history. She said she was married but separated at that time. When asked to elaborate on her own past relationship she said she doesn’t like to remember that time of her life. Her husband was violent to her and he did not understand her. It only lasted 3 months or so. It was straight after she left this relationship she started looking after the children. The Tribunal asked the visa applicant to explain this a bit more, as it was finding it difficult to understand why, having just left a violent relationship she would get involved with two small children of a man who was involved in the death of his wife. She responded that she loves to help and she loves children. She got to know the review applicant and found him to be a good man and could not imagine him doing this.
The Tribunal noted in her statements she has said that she came to be involved with the family in 2016 but now she is saying 2013. In response she said in 2016 she took ‘official’ responsibility for the children because his mother suffered a partial paralysis/stroke. She was not living with the family, but she was very close by. The visa applicant then said she lived with the family before marriage and was giving them full care. His brothers were busy with their own lives. When asked to clarify where she lived when the review applicant was released from prison she said she lived with his family and with him. He then asked her family for permission to marry and they married. By then the children were attached to her and she was always by their side.
The Tribunal asked what she knows about their knowledge about their birth mother. She said they don’t remember their birth mother because they were so young, but they see her as their mother. The visa applicant said they do not talk with her about their birth mother or ask her about her. The Tribunal asked if she has any knowledge if the review applicant had other domestic violence offences against him in Australia prior to this incident. She said as far as she knows he had a happy family and no problems, as she was told by his former in laws. The Tribunal asked her what she would say if it told her he had a conviction for domestic violence against his former wife here. In response she said that she understands that the former wife was told by others to call the police and that is why that occurred. She then said, she tries not to let her life be affected by these past offences. In the time she has spent with the review applicant she has not seen any violent behaviour. She believes he is a nice and gentle person.
The Tribunal asked what she knows about the lives of the children in Australia. She said she is aware that Yousef has been through very difficult circumstances. He is mentally disturbed, he was sexually assaulted, and assaulted by a man on the street. The Tribunal asked her what relationship do they have with their uncle in Sydney. She said they have a strong relationship and are very close.
The visa applicant said in conclusion that she misses her children very much and wants to live with them. She has a very strong relationship with the children.
Response from review applicant to visa applicant’s evidence
The Tribunal asked the review applicant for his response to the visa applicant’s evidence. He said she was confused by the question about whether she lived with him before marriage. He clarified that they never lived together before marriage. This is not culturally acceptable in Iraq. They only lived together after they married. Regarding her response about his history of conviction in Australia, he told her about this and her response subsequently that someone told the first wife to call the police indicated that she was aware of this.
Evidence from children, Yousef and Adam
Yousef told the Tribunal his life has been very hard since he came to Australia. He has been waiting for his mum to come here. At school everyone has their mother pick them up except for them. She was taking care of them since he was about 10 years old. She lived next door and she would come over and look after them. Since being in Australia he talks to her everyday.
Adam told the Tribunal that he wants his mum to take care of him, to cook for him and care for him. She used to do everything for them in Iraq with his grandmother. She was their neighbour. When his dad went to Turkey earlier this year he promised him that he will bring her back with him but she did not come. He was very upset by that.
The representative requested 2 weeks to provide further information arising from the evidence at the hearing.
On 19 October 2022 the Tribunal sent the applicant an invitation to provide the following information:
·     Documentation relating to the domestic violence conviction for Common Assault,
finalised at Fairfield Local Court on 9 February 2010, such as the Police Fact
Sheet, any witness statements, transcript of local court proceedings, any
Apprehended Domestic Violence Orders made relating to this or any other matter.
·     Further information and documentation relating to case 445/C1/2014 in Al-Kharkh
Criminal Court that culminated in the Judgement dated 16 September 2014, such
as the investigation dossier, case summary, and/or witness statements or other
documentation that sets out facts and circumstances leading to the death of Amna
Arkan Thamer that was presented to the Court.
·     Confirmation of the charge for which the applicant was ultimately convicted and
sentenced in relation to the death of his first wife (the Member notes that the
Amnesty document submitted by the applicant refers in paragraph 1 to Article
406/1/1 Penal Law which appears to be a reference to a charge of Murder - wilful
killing1 – and seeks clarification of whether this was the charge against him that led
to the conviction and sentence)
·     Any information or documentation to evidence a connection between the
finalisation of the fasel compensation process with the applicant’s release from
prison under the General Amnesty Law No 27.
·     Any other information the applicant wishes to provide to support his character,
including any statements from a non-related third party who is aware of his criminal offence history in Iraq.
Between 21-23 November 2022, following a request for an extension of time, the Tribunal received the following documents in response to its invitation:
·Cover letter and submission from the representative, dated 18 November 2022 (discussed further below).
·Statutory Declaration of the applicant dated 21 November 2022 providing further information about the 2010 court process, conviction and AVO relating to the incident involving his former wife in Australia; the death of his first wife in Iraq in 2013, his engagement and marriage to the visa applicant and circumstances in Australia with his sons.
·Photos of engagement and religious wedding of applicant and visa applicant on 11 October 2018 in Baghdad.
·National Police Certificate in the applicant’s name dated 4 November 2022, citing one disclosable court outcome from 9 February 2010 as at 20 October 2022, as recorded on the earlier NPC.
·NSW Police Facts Sheet relating to the two offences, assault occasioning actual bodily harm and common assault relating to an incident on 28 January 2009 involving the applicant and his former wife. Significant parts of the document are redacted.
·Translation and original of a document entitled M/Tribal peace and compromise, dated 6 October 2017 relating to tribal conciliation and reconciliation processes involving the father of the victim and the Al Hamid clan and the payment of clan wergild (blood money)
·Statement of Riyadh Mohan Hatem Al Saedi, brother of the applicant who lives in Baghdad Iraq and was in Baghdad at the time of the incident that led to the death of the applicant’s former wife in 2013 and was involved in the proceedings that followed.
·Article by Melisande Genat, Tribal Justice and State Law in Iraq, International Journal of Middle East Studies (2021), 53, 507–511
·Letter from Ali Yassin Jaber dated 11 November 2022, a long term friend of the applicant of 12-13 years, who attests to knowledge of his conviction in 2010 against his former wife, and the circumstances of her death caused by the applicant subsequently. Mr Jaber refers to his knowledge of the visa applicant and her relationship with the children and their need for her in Australia. Copy of Mr Jaber’s identification is attached (Australian drivers licence)
·Letter from Dr. Talib Hashim dated 15 November 2022, friend of the applicant since 2011, through his brother Ahmed with whom he studied in Baghdad and describing his knowledge of relevant events and his opinion o the applicant’s character.
·Letter dated 23 November 2022 from representative confirming that no further documents relating to points 2 and 3 of the invitation are available to the applicant from the Iraqi courts, despite enquiries made. The representative submits,
The Court was satisfied that the respective families had reconciled and compensation was paid and the Court could release of Mr Al Saeidi through an ‘amnesty’. It is unlikely that the court would release Mr Al Saeidi without the consent of the victim’s family and tribal leaders. There is nothing to suggest that Mr Al Saeidi or his family would have the capability of influencing the court independent of the reconciliation and compensation process being completed.
It is submitted that the conclusion posited in this and previous submissions is a reasonable analysis, despite it not being possible to document this. We are dealing with Iraq, a country still recovering from years of political turmoil and warfare, not Australia where such processes would be highly documented.
Further hearing 14 December 2022
Evidence from Dr Talib Hashim
The Tribunal took oral evidence from Dr Hashim. He confirmed that he knew the applicant since 2011, having met him through his brother Ahmad. He was invited to the applicant’s house during Ramadan and recalls observing that they had a nice house and they provided nice hospitality. After that he mostly saw the applicant on his own in Auburn to cut his hair.
The witness said he was told about the issues in the relationship between the applicant and his former wife, by the brother Ahmad. He suggested the issues arose probably due to differences in their lives and culture in Australia. The witness said after he returned form overseas, he heard about what happened in Iraq and the death of Saad’s wife at his hands, from an Iraqi in the community. After Saad returned to Australia he invited him to dinner and he asked him what happened and he gave him his account. The witness recounted what the applicant had told him.
The witness understood from Ahmad that the applicant and his former wife were together when she went to Iraq that last time.
When asked why he believes the applicant’s account of this incident, the witness said that he had got to know him and spent a good amount of time with him and had observed his attitude to him and to others and this was not in his character, what he knew of him. Asked if he sees the applicant now, he said he saw him during Ramadan at his brother’s place. The witness was aware the applicant had not told his children of his role in the death of their mother. He considers him a good man, he wants to create a warm environment for his children. He has introduced his new wife through the family and the witness understands she is ready to come and to care for his children.
Evidence from applicant
The Tribunal put to the applicant it continues to have concerns about the circumstances of the death of his former wife and the earlier incident of domestic violence perpetrated by him against her in Australia, particularly given that it does not have before it any version of these events that is not his version. In particular it is concerned that he has been unable to provide any documents from the Iraqi court process. In response the applicant stated that he has provided the document which supports that the ‘diyya’ money was paid to bring to an end the prosecution as this was the tribal way to stop the conflict between the families. His father in law accepted the diyya to end the court process and this was the end of the legal process and that is why he was released.
The Tribunal asked the applicant if he had a lawyer through the legal process he underwent in Iraq. He said he did but he cannot recall his name. The lawyer would also change every week. He said if he had any documents he would provide it, but he doesn’t have any. When asked if he tried to ask the lawyers who represented him about this, he said he has. His brother Riyadh explained to him there are thousands of cases that go in and out of the courts. He repeated he does not have any specific documents.
The Tribunal asked the applicant what he was charged with. He said it was unintentional killing, family killing. The Tribunal put to him why then the judgement he provided refers to Articles 402 and 406 which, according to information before the Tribunal refer to intentional acts, rather than article 410 or 411 which relate to unintentional acts. In response the applicant stated that document was prepared by the judge and in Iraq the courts can be influenced and there was pressure put on the court by his wife’s father, who is a person of some influence in Iraq, and this is also why he was sentenced for 15 years.
The applicant confirmed to the Tribunal he has no statement of facts or witness statements relating to the matter and if he did he would have provided it. He wants this case to end and to look after his family.
In response to the Tribunal’s query about how he pleaded in the case, guilty or not guilty, he said he pleaded not guilty but was found guilty. He stated that he called the police at the time and if his act was intentional he would not have done this. He could not recall if any witnesses were called during the legal process.
The Tribunal put to the applicant that at the last hearing he indicated that the relationship with his former wife’s father was now good, yet he has been unable to make him available to give evidence to the Tribunal and asked why. The applicant said that after the tribal settlement and payment of money to his ex father in law he said that he did not want anything to do with him anymore. He indicated that he would only see the children. The applicant said he hoped that he could be available to assist but he is a difficult man to contact. He added that he believed it would be difficult for him to talk about this matter again. He has moved on and has remarried now and is taking care of his family.

The Tribunal asked the applicant whether his brother Raad was in Iraq at the time of the incident. He confirmed that he was in Iraq, but not in the house where the incident occurred. He supported the applicant through the court process but subsequently returned to Australia. The applicant mentioned that Raad is currently in Iraq and if the Tribunal wants to speak to him he can. When asked why this brother did not previously provide a letter of support, the applicant said it did not occur to him but he is able to obtain this if necessary. He added that he is his eldest brother and his wife helps his children.
The Tribunal put to the applicant that the circumstances of the 2010 domestic violence incident, together with the return to Iraq by his former wife with their children several months earlier than him, and her subsequent death in her family home lead the Tribunal to have some concerns about his relationship with her and whether it is prepared to accept his account of these incidents. In response the applicant stated that there was more than three and a half years between these incidents. He reiterated that he is a good person from a good family. What happened was an accident. He has relations with the community and has a business. His wife, the visa applicant is a good woman ad she is happy with him. That incident was a big lesson to him. He understands he was wrong. But he needs to start a new page with his family and his children.
The representative made the following submissions arising from the evidence. He explained they chose to obtain statements from the applicant’s brothers Riyadh and Ahmed and not Raad only because they believed they were the best witnesses and Raad’s statement would say the same thing. Regarding the domestic violence incident and subsequent death in Iraq, the representative emphasised the lapse in time between these events was significant. He also repeated that the redactions in the local court documents regarding the 2010 incident was made by the Court. Due to the passage of time since then, he is unable to obtain any other records of this matter as lawyers would not keep records more than 7 years.
On 27 January 2023 the Tribunal received a submission from the representative and the following further documents:
·Statutory declaration of Mr Saad al Saeidi dated 23 January 2023
·Statement from Raad Al-Saedi
·Letter from Dr Hany Abdala dated 19 January 2023
·Prescription for Master Adam Saad dated 19 January 2023
·Statement of Accused and translation from New Baghdad Investigation Court, dated 6 March 2013
·Witness Statement of Zeinab Arkan Thamer Al-Tarboush (sister of the victim) from New Baghdad Investigation Court dated 6 March 2013
·Summary and translation of lawsuit 445/G1/2014 from New Baghdad Investigation Court dated 15 January 2023 .
In their submissions, the representative explains the three documents recently obtained by family members of the applicant from the court in Baghdad that confirm several points previously made by the applicant: that he made a statement soon after the death of his first wife to the police stating the death was accidental; and that the court confirmed that the release from prison of the applicant followed the tribal settlement. The applicant confirms his remorse and acceptance of responsibility for what happened in Baghdad in March 2013 and for the assault in 2011, which is also confirmed in other statements from non family members and friends. The statement from the applicant’s brother Raad Al Saedi confirms his knowledge of the events and his involvement in getting documents from the Baghdad court in December 2022 and January 2023. The representative submits that further evidence from Dr Abdala is submitted in support of the discretionary factor of the best interests of the children, adding new information about the ongoing stress of the applicant’s youngest child. The submission confirms that no other documents are available from the Fairfield Court in relation to the earlier incident and repeats the applicant’s evidence to the Tribunal on the process that took place.
In summary, the representative concedes the matter is complex and difficult, but the best interests of the children would be met by approval of the sponsorship and refers to the evidence submitted about the close relationship and dependency between the children and the visa applicant.
Are the sponsorship requirements met?
Clause 309.213 requires that the visa applicant is sponsored by the review applicant, where such person has turned 18; or where they have not, by the review applicant’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in r.1.03 of the Regulations).
The Tribunal finds the visa applicant is sponsored by her spouse, the review applicant. A sponsorship Form 40SP signed by him and dated 8 May 2019 is on the Department file. Both the visa applicant and sponsor/review applicant are over 18 years of age at time of application. Therefore cl. 309.213 is met.
At the time of decision, this sponsorship must have been approved and still be in force. For visa applications made on or after 18 November 2016 the sponsor must also have consented for the Department to disclose to each sponsored applicant any conviction for a relevant offence, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned with the effect that he or she is taken never to have been convicted of the offence: cl.309.222.
Approval of sponsorship is subject to limitations contained in r.1.20J (limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship) , r.1.20KA (limit on the period before which certain Parent visa holders can sponsor another person for a Partner visa ), r.1.20KB (relating to sponsors charged with, or convicted of, certain offences where the visa application was made on or after 27 March 2010) and r.1.20KC (relating to sponsors convicted of a relevant offence who have a significant criminal record where the visa application was made on or after 18 November 2016) of the Regulations.
In the present case, the sponsorship limitation provision in r.1.20KC is relevant. This regulation provides that the minister must refuse to approve the sponsorship of a sponsor of a subclass 309 visa applicant if the sponsor has been convicted of a relevant offence or relevant offences and has a significant criminal record in relation to the offences. Relevant offences are defined in subparagraph (2) to include violence against a person, including assault and sexual assault and the threat of violence. Significant criminal record is defined in r.1.20KD and includes a sentence to a term of imprisonment of 12 months or more.
Subregulation 1.20KC(4) provides that the Minister may decide to approve the sponsorship if the Minister considers it reasonable to do so, having regard to matters including the following (without limitation): (a) the length of time since the sponsor completed the sentence (or sentences) for the relevant offence or relevant offences; (b) the best interest of the following: (i) any children of the sponsor; (ii) any children of the applicant who is seeking to satisfy the primary criteria for the grant of the visa concerned; (c) the length of the relationship between the sponsor and the applicant who is seeking to satisfy the primary criteria for the grant of the visa concerned.
Does r.1.20KC apply in this case?
On the evidence of the judgement issued by Al Karkh Criminal Court on 16 September 2014 in Baghdad, Iraq, the Tribunal finds that the review applicant was charged and convicted for the offence of murder of his former wife under Article 406 of the Iraqi Penal Code and sentenced to 15 years imprisonment. It therefore finds that he has been convicted of relevant offences as described in r.1.20KC(2) and has a significant criminal record as that term is defined in r.1.20KD.
Therefore r.1.20KC is applicable to this application. This is not contested by the review applicant.
Is it reasonable to approve the sponsorship?
The remaining, and critical, issue is whether the Tribunal considers it reasonable to approve the sponsorship, notwithstanding this conviction and this record, having regard to the matters referred to in r.1.20KC(4) and any other relevant matters arising on the material.
The Tribunal has given this careful consideration. The review applicant was convicted for murder of his former wife, and this is the significant criminal record upon which r.1.20KC is invoked. The purpose and rationale of this regulation is primarily protection of visa applicants against family violence.[2] The amendment was introduced to allow the Minister (or Tribunal on review) to refuse to approve sponsors of applicants for Partner visas if the sponsor has a significant criminal record in relation to relevant offences, though it provides for approval despite such a record where it is reasonable to do so having regard to particular matters.
[2] See for example, Migration Policy and Operation Documents [Div1.4B/reg1.20KC and 1.20KD] Div1.4B – Reg1.20KC and 1.20KD – Sponsorship Assessment for Partner visas (immi.gov.au)
The Tribunal considers that the offence and conviction against the review applicant in this matter could not be more serious in the context of the protective purpose of this regulation. There is additionally a record of an earlier domestic violence conviction in respect of the same victim. The Tribunal also observes that in his oral testimony and written statements of his account of the incident which led to the death of his former wife, the review applicant seemed to minimise the apparent violence of his actions. He repeatedly referred to it as ‘an accident’ and that he did not act with intent but this is contradicted by the judgement against him relating to a charge under Article 406 of the Iraqi Penal Code which relates to ‘intentional killing’ and the significant sentence imposed of 15 years imprisonment. It is also somewhat incongruous with his own description of the incident, being that he hit her with a knife to her neck. Similarly his account of the earlier domestic violence incident in 2010, that he pushed or touched her nose which had a nose ring and it bled is arguably incongruous with the criminal conviction recorded against him for common assault in the context of a domestic violence matter. Although the Tribunal sought to obtain other information or evidence about these incidents, in the end there was no information put before it that provides a version of events relating to either these incidents from a source independent of the review applicant, his family and close associates. The heavily redacted 2010 NSW Police Statement of Facts provided to the Tribunal heightened rather than alleviated its concerns, in the absence of any other material.
Therefore on the evidence, the Tribunal considers the past convictions against the review applicant for common assault and murder of his former wife are very strong reasons not to approve the sponsorship in this Partner visa application.
However, against this, the Tribunal has considered other matters arising in this case, including those in r.1.20KC(4) and the totality of the evidence and submissions before it. Ultimately, it has reached the conclusion that, notwithstanding the review applicant’s significant criminal record, it is reasonable in this case to approve the sponsorship. The Tribunal’s reasons for this conclusion follow.
Through his representative the review applicant made submissions on the following matters warranting the exercise of the discretion to approve sponsorship:
·payment of compensation to the family of the victim and resolution of the matter through the Iraqi tribal fasel process;
·his time spent in Iraqi correctional system; and
·the best interests of the two Australian children of sponsor, including their very close attachment with the visa applicant and mental health concerns relating to both children, particularly arising from their recent experiences as victims of crime themselves.
Fasl process undertaken and payment of diyya
The Tribunal accepts on the evidence before it that after his conviction for the murder of his former wife the review applicant arranged a settlement of compensation payment (diyya) to the father and family of the victim under a process known as fasl. Detailed submissions and supporting material about this, including documentation, Statutory Declarations and country information, was before the Tribunal. It was submitted that it was completion of this process which led to his release from prison in Iraq in 2018 under an Amnesty after completing 5 years of the original 15 year sentence. The Tribunal accepts that the review applicant, through his family members, engaged in this process with the victim’s family; that a sum of money was paid as compensation or diyya, and that subsequently he was released under an Amnesty in 2018. It also accepts that his early release from his sentence was connected to the resolution of the issues between the relevant families in accordance with tribal justice processes. However, while the Tribunal accepts that this occurred and may have resolved the criminal process relating to the offence in Iraq, for the purposes of consideration of approval of the sponsorship in the present context, it does not consider the payment of financial compensation to the family of the victim to be a significant factor in favour of approval of the sponsorship for the purposes of a partner visa applicant for the sponsor’s new partner, considering the subject this regulation is seeking to protect is the visa applicant. The final resolution of the criminal offence by payment of compensation from a tribal justice perspective does not alleviate or lessen the gravity of the crime committed.
Time spent in Iraqi correctional system and time since the offence
The Tribunal accepts the review applicant served a custodial term of 5 years in Iraq for the offence, and while substantially less than the full term of 15 years, it is not an insignificant period, particularly in the circumstances of having children who were only 3 and 5 years old at the time. The Tribunal accepts the review applicant served a significant punishment for the crime committed.
On the other hand, only 5 years has passed since the review applicant completed the sentence (or sentences) for the relevant offence or relevant offences, which is not that long. The Tribunal gives some weight to this in his consideration of the discretion to approve.
Best interests of the minor children
The primary submission put forward by the review applicant and his representative for approval of the sponsorship is that it is in the best interests of his minor children for the sponsorship to be approved. This submission relies on the vulnerability of the two children given their age, mental health and particular circumstances of the elder child having been the victim himself of serious criminal offences in Australia and more recently both children experienced a robbery at their home which lead them to move houses, and the strong connection and attachments between the visa applicant and the children formed since they were very young in Iraq and their need for her maternal care and support.
The Tribunal has carefully considered all of the evidence before it in support of these submissions. It accepts that the review applicant’s children were very young when their mother was killed in March 2013. They stayed in Iraq with family members while he was in custody. Although there was some discrepancy in the evidence about the precise year the visa applicant came to be involved with the children, the Tribunal accepts the evidence supports that she was providing care to the children in Iraq from at least 2016 until they departed in 2019 and they formed a strong bond with her in that time. They are now 15 and 12 years respectively. Evidence is before the Tribunal about their current circumstances, including state of their mental health, and the unfortunate experiences they have had, including the eldest child being a victim of serious assaults, that were the subject of criminal proceedings, and a recent robbery at their home which led the family to move. The Tribunal accepts that the children have experienced significant traumas in their lives and suffer ongoing mental health issues as a result. Given all this, it is not surprising that they are in need of nurturing parental care and support and the Tribunal accepts that they have a strong and close bond with the visa applicant formed over many years and from a young age; that they see her as their mother and have a strong desire and need for her maternal care at this time.
The Tribunal accepts that the best interests of the children of the review applicant/sponsor in this case is a very strong and overwhelming factor in favour of approval of sponsorship.
Length of the relationship between the sponsor and the visa applicant
The review and visa applicant have been married (religiously) since 2018. They last spent time together in January 2022. However, as accepted above, the visa applicant had already formed a significant bond with the review applicant’s children for several years by this time and in that context, particularly having regard to the young age of the children and nature of their bond with her, the Tribunal is prepared to find the length and nature of the relationship in this case to be a significant factor in favour of approval of the sponsorship.
Other matters arising from the material: visa applicant knowledge of the circumstances of the sponsor’s criminal record and belief in the review applicant
According to her oral evidence, the visa applicant was present in Iraq in the same local area at the time of the incident for which the review applicant was convicted and knew the circumstances. She claims she willingly and voluntarily became involved in caring for the two young children in those circumstances. She subsequently come to know the review applicant personally and they have spent time living together in Iraq and on more recently on a month long holiday and she has not seen any indication of an adverse nature of his character. The Tribunal finds that the visa applicant’s knowledge of the context and her own assessment of the review applicant, having lived with him for albeit short periods so far, favours approval of the sponsorship. Without undermining the importance of the purpose of the regulation being to protect the visa applicant from become a victim themselves, the Tribunal is cognisant not to deny the visa applicant some agency in the matter of her own security, and from this perspective it considers her views on the matter a significant factor for consideration and supportive of approval of the sponsorship.
Finally, the Tribunal acknowledges, as pointed out by the review applicant himself, he would not have been precluded from re partnering with someone in Australia should he had decided to do this. He explained that a significant part of his decision to marry the visa applicant was her bond and care for his children while he was in prison in Iraq.
Not approving the sponsorship, and therefore refusing the visa on this basis, would have the effect of punishing the visa applicant and an adverse impact on the review applicant’s children and this would be a perverse outcome considering the underlying rationale of this Regulation.
For all of the above reasons, the Tribunal concludes that it is reasonable in this case to approve the sponsorship, despite the review applicant’s significant criminal record. The sponsorship is therefore approved.
Accordingly, the Tribunal finds the requirements of cl.309.213 and cl.309.222 are met.

Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.
DECISION
The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309.213 of Schedule 2 to the Regulations; and
·cl.309.222 of Schedule 2 to the Regulations
Meena Sripathy
Member

[2023] AATA 1458

3 February 2023

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