Alam and Minister for Immigration and Border Protection (Migration)
[2017] AATA 1233
•9 August 2017
Alam and Minister for Immigration and Border Protection (Migration) [2017] AATA 1233 (9 August 2017)
Division:GENERAL DIVISION
File Number: 2017/3134
Re:Faisal K H Alam
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Miss E A Shanahan, Member
Date:9 August 2017
Place:Melbourne
The Tribunal sets aside the decision under review and in substitution decides that the applicant should not be refused a Skilled – nominated (subclass 190) visa under s 501(1) of the Migration Act 1958 (Cth).
..........................[sgd]..............................................
Miss E A Shanahan, Member
MIGRATION – refusal to grant Skilled-nominated (subclass 190) visa – failed character test – sentenced to 24 month’s imprisonment – appeal to Court of Appeal, Supreme Court of Victoria – released after 4 months and 10 days – impersonating immigration official – financial gain – pecuniary penalty – released on Community Correction Order for 3 years – ten years’ residence in Australia – study and full-time work before and after offending – dependent wife and child – child has congenital abnormalities requiring complex surgical correction – decision set aside
LEGISLATION
Migration Act 1958 (Cth); ss 36, 499, 500, 501
CASES
Alam v The Queen [2015] VSCA 48
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
Goundar v Minister for Immigration and Border Protection [2016] FCA 1203
Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999
SECONDARY MATERIALS
Ministerial Declaration No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Scott Morrison MP, Minister for Immigration and Border Protection)
REASONS FOR DECISION
Miss E A Shanahan, Member
9 August 2017
Mr Alam first came to Australia from Bangladesh on a Student (subclass 572) visa in 2007 and studied Accountancy. In December 2012, he applied for and was granted a Skilled (subclass 485) visa. He had returned to Bangladesh for one month in late December 2008 and married Diljahan Afrose, a lawyer. His wife came to Australia in 2010 and their son Rayyan was born on 21 March 2012. Both the wife and child are now on bridging visas having previously been listed as dependants on Mr Alam’s subclass 485 visa.
On 31 May 2013, Mr Alam applied for a Skilled – nominated (subclass 190) visa. On 9 May 2017 a delegate of the Minister refused the application under s 501(1) of the Migration Act 1958 (Cth) (the Act), having found that Mr Alam did not pass the character test and that the discretion to refuse to grant the visa should be exercised. Mr Alam did not meet the character test as he had, on 13 November 2014, been sentenced by Judge Cannon in the County Court to a term of imprisonment of two years for two offences with a pecuniary penalty of $87,167.74, representing monies he had fraudulently obtained from citizens in and of Bangladesh.
On 22 May 2017 Mr Alam lodged an application for review of this decision by the Administrative Appeals Tribunal under s 500(1)(b) of the Act. Mr Alam was represented at the hearing by Mr Guy Gilbert of counsel instructed by Ms Catherine Farrell, a solicitor from Clothier Anderson Immigration Lawyers. Mr Adam Cunynghame, a solicitor from Sparke Helmore appeared for the Minister. The Minister lodged a set of paginated G-Documents and the applicant provided a number of written statements to support oral evidence. Documents received under summons from the County Court of Victoria were also accepted into evidence. A full list of the tendered documents is appended to this decision.
Oral evidence was given at the hearing by Mr Alam, his wife Diljahan Afrose, a co-worker and his manager – Maluge Dias and Michael Simpson respectively, and Dr Patrick Newton, forensic psychologist. Mr Habib Ur Rehman a friend of Mr Alam, Mr Alam’s father, Fazlur Rahman and his sister, Selina Akter, gave evidence by telephone, the latter two from Bangladesh. An interpreter in the Bengali language, Mr Mohammad Haque, provided assistance when required.
BACKGROUND TO THE APPLICATION
In 2011, Mr Alam was contacted by a relative regarding a debt owed to her husband by Saiful Islam. Mr Islam is said to be based in Singapore and had undertaken to arrange a Canadian immigration visa for this individual. A fee had been paid but no visa was forthcoming. Mr Alam telephoned Mr Islam who agreed to refund the money if Mr Alam provided a receipt purporting to be from the Australian Immigration Department. Mr Alam complied with this request following which it is claimed Mr Islam informed him that he had committed an offence and would be reported to Australian authorities if he did not perform further similar activities. Over a period of 16 months Mr Alam provided three receipts and two letters purporting to be official documents from the Department and made seven phone calls over two days to individuals in Bangladesh identifying himself as a Departmental Officer on five occasions. Mr Alam received payments totalling $87,167.74 from Mr Islam. These moneys were paid into a Prime Bank account in Dhaka, Bangladesh by Mr Islam. The bank account was in the names of Mr Alam and his father-in-law as joint signatories.
These activities form the basis of the charges brought against Mr Alam on 21 May 2014 after extensive investigations and three police interviews. The Australian High Commissioner in Singapore reportedly made enquiries relating to Mr Islam who refused to provide information.
The Prosecution Case before the County Court stated that, in September 2012, four Bangladeshi construction workers had approached the Australian Department of Immigration and Citizenship in Singapore seeking advice as to when their Australian visa applications would be approved. As no applications had been lodged, investigations were commenced which eventually led to a search warrant being exercised at Mr Alam’s home in Victoria. Following a series of three interviews, charges were laid against Mr Alam, these being supported by evidence of fraud. Mr Alam admitted to deleting emails he had sent to Mr Islam using an account devised for the fraudulent purpose. A large volume of data identifying those citizen’s defrauded was retrieved as was evidence of international funds transfers to Mr Alam amounting to $87,167.74. Email correspondence with Mr Islam was downloaded from Mr Alam’s computer, in particular the provision by Mr Islam of questions and answers to be given to the victims in response to enquiries.
On 13 November 2014, Judge Cannon of the County Court of Victoria handed down her reasons for sentence in which she rejected Mr Alam’s assertion that he always intended to repay the $87,167.74 to the victimized individuals as being fanciful. The Judge also rejected Mr Alam’s statement that he had, in November 2012, personally repaid $6000 to four victims of the scam when he visited Bangladesh. In addition, the Judge rejected Mr Alam’s evidence that his initial involvement was to recoup his brother-in-law’s money. Judge Cannon was not satisfied that Mr Islam had effectively blackmailed him into continuing the fraudulent scheme. She concluded that Mr Alam was an active and willing participant in this fraudulent enterprise.
In Mr Alam’s favour, Judge Cannon referred to his early guilty plea, his refunding of what she said was $42,000 to the victims, the absence of prior convictions, Mr Alam’s excellent work history, his son’s congenital abnormalities and need for further surgery and the report of the forensic psychologist Mr Coffey that the risk of re-offending was low. While asked to factor in the effect of a jail sentence on the possibility of Mr Alam being deported, Judge Cannon declined to do so on the basis that this possibility was speculative, although productive of anxiety in Mr Alam.
On Charge 1, relating to the making of a false Commonwealth document, Mr Alam was sentenced to imprisonment for 12 months and for Charge 2 of falsely representing to be a Commonwealth public official he was sentenced to 2 years imprisonment. A pecuniary penalty of $87.167.74 payable to the Commonwealth was also made. This produced a total effective sentence of 2 years, but the Judge ordered that Mr Alam be released after serving ten months’ imprisonment upon the provision of a security by recognisance in the sum of $2000 to comply with two conditions, being: 1) that Mr Alam be of good behaviour for a period of five years; and 2) that Mr Alam pay the pecuniary penalty order in full by 30 June 2015.
Mr Alam appealed this decision to the Court of Appeal of the Supreme Court of Victoria (Court of Appeal) on the basis that the sentence was manifestly excessive. On 24 March 2015, the Court of Appeal allowed the appeal, setting aside the County Court decision of 13 November 2014. In lieu, the Court of Appeal sentenced Mr Alam on Charge 1 to 12 month’s imprisonment to be released after serving four months (that day) subject to a security of $2000 with a good behaviour requirement of three years and on Charge 2 the sentence made by the Court of Appeal was a community correction order (CCO) of three years duration with the condition that he perform 300 hours community work over the three years.
It was not denied that between 2011 and 2014 Mr Alam had accrued considerable debt. His credit card debt in 2011 was $16,000 and was said to be $45,000 by 2014. No records have been produced to the Tribunal verifying these debts but Mr Alam agrees his level of debt rose not only as a result of tuition fees but predominantly as a result of his wife’s ante-natal, natal and post-natal care and his son’s treatment for the correction of congenital hand defects. The family did not have access to Medicare cover and were required to pay for private treatment in hospital. As part of his studies, Mr Alam had been required to sit and pass the English Language Testing (IELTS). He sat these tests 33 times at a fee of $330 each time before qualifying.
In 2012, Mr Alam completed the professional year of his accounting degree but could not afford to pay the certification fee. Since 2007 (including the 2011-2014 period where Mr Alam accrued considerable debt) he remitted at least $500 to Bangladesh to support his parents and siblings as his father’s fishing business had failed, although he continued to work as a property lawyer. Mr Alam’s mother had also suffered two cerebro-vascular accidents (strokes) and by 2013 was wheel-chair bound.
Mr Alam’s wife, Ms Afrose, had worked as a Government employed lawyer in Bangladesh, having been admitted to practice on 27 September 2008. After her arrival in Australia she commenced and completed in March 2011 a Diploma of Human Resources Management from Holmesglen Institute of TAFE and in September 2011 obtained a Certificate III in Children’s Services. She then worked part-time as a child-care attendant. Since Mr Alam’s detention at the Melbourne Immigration Transit Centre (MITC) in May 2017, she has worked full-time. It has always been Ms Afrose’s intention to re-qualify as a lawyer in Victoria and her Diploma results, replete with honours, suggest she would cope with a University degree despite her other commitments.
While studying as a full-time student from 2007 onwards, Mr Alam also worked for up to 50 hours per week rising to site manager at a Woolworth’s Petrol Station. Since his release from Fulham Prison, he has again been employed by Liquorland and a Woolworth’s Petrol Station in Koo Wee Rup. He was selected in a group of 18 from Victoria to undertake further managerial training. His team leaders and supervisors have in particular noted his accounting expertise.
Mr Alam has not accessed any of the $87,167.74 held in the bank in Dhaka for his own use. Some $42,000 has been repaid to the victims of the fraud by a complex arrangement involving his father-in-law withdrawing this amount in favour of the individuals whose relatives in Australia normally remitted money to Bangladesh. These Australian based relatives then paid Mr Alam the equivalent in Australian dollars. This he forwarded to the Australian Financial Security Authority (AFSA). Since the death of Mr Alam’s father-in-law post-surgery for cancer and Mr Alam’s remaining in Australia, this means of repayment has been impossible. The balance remains in Bangladesh and can only be accessed by Mr Alam presenting in person at the bank. He has said he would be prepared to return to Bangladesh for a short period to effect transfer of these funds to Australia. In the interim he has a payment plan and when working paid $100 per month to AFSA. Despite Judge Cannon’s refusing to accept Mr Alam’s claim that he had refunded $6,000 to four of the victims when he visited Dhaka in late 2012, Mr Alam maintains that he repaid that amount. He does, however, acknowledge that he has no evidence of this.
ORAL EVIDENCE TO THE TRIBUNAL.
Mr Alam
In providing evidence at the hearing of this matter, Mr Alam was distressed and on occasion tearful. He expressed remorse for his actions, in particular, the victimisation of Bangladeshi citizens for whom the financial impact of his offences was especially significant. He said it had been his intention since 2011 to repay the money to these individuals and his intention was supported by the fact that the monies had not been accessed or spent by him or his family. He stated that his experiences over the past five years had resulted in a restoration of his religious commitment and he now prays five times a day.
He said he had not confided in his wife who had been completely ignorant of his criminal activities until the charges were laid. He informed the Tribunal that he now discusses all issues with her and seeks her advice.
Of particular concern to Mr Alam is his son’s future should the family be returned to Bangladesh, as he would have no access to the further surgery he requires and both parents would have difficulty obtaining employment given their prolonged absence from the country.
Most of the examination-in-chief and cross-examination of Mr Alam was directed at his and his wife’s fears of retribution from Mr Islam or his colleagues should they return to Bangladesh. This fear arose from threats that had been made in person to Mr Alam’s father in September 2013 and December 2016 and in the intervening three years by telephone calls. After the 2013 incident Mr Alam arranged for his parents to shift from Dhaka to the village of Tangail 10 kilometres from the city. They had shifted house again after further contact was made in December 2016. Mr Alam was not aware of any further contact since.
Mr Michael Simpson
Mr Simpson had provided a Statutory Declaration on 30 June 2017. Mr Simpson is a Team Leader for Liquorland and has worked with Mr Alam since 2014. In both the Declaration and his evidence to the Tribunal, Mr Simpson described Mr Alam as reliable, honest, calm, friendly and hard-working. He had not been aware of the criminal offences until recently and considered them to be totally out of character for Mr Alam. He said he would not hesitate to again work with Mr Alam or to recommend him for a job.
Maluge Dias
Ms Dias is the store manager of Woolworth’s petrol station at Koo Wee Rup where Mr Alam worked. She has known him since June 2015 and now considers him a friend. She had been unaware of his offending and having been so informed 3 months ago had difficulty believing it and still does. She considered Mr Alam to be honest, hard-working and possessing good people skills. He had been promoted to a site manager because of his skills. She said she would re-employ him if his visa was restored.
Habib Ur Rehman
Mr Rehman, who works as a security officer, gave evidence by telephone. He has known Mr Alam for nine and a half years. They lived together for two years prior to Mr Alam marrying. Mr Rehman regards his friend as honest, reliable and responsible and had difficulty believing that Mr Alam was convicted of two offences. He considered Mr Alam to be a good man who made errors of judgement and would do everything in his power to repay the victims and atone for the impact on his family.
Diljahan Afrose
Ms Afrose, in both her Statutory Declaration and her oral evidence confirmed that she had no knowledge of her husband’s involvement in the defrauding of Bangladeshi citizens until police investigations commenced in May 2013. Her husband had not confided in her.
His attitude has changed completely since his imprisonment and she says he is more open, loving and attentive to both her and their son. In her Declaration, Ms Afrose outlined her fears in relation to her son should they be returned to Bangladesh. She said the surgery he required to his left hand would not be available nor was there provision of special schooling for children with disabilities. In the longer term, she believed her son would have difficulty obtaining employment in Bangladesh. Rayyan is attending kindergarten and making good progress. He also receives special hand therapy from the Royal Children’s Hospital staff in the use of his repaired right hand, particularly with writing.
Ms Afrose is aware of the potential to apply in her own name for a Student Visa although this would involve her doing so from Bangladesh. She and Rayyan now hold bridging visas and she has made an application to the Migration Review Division of the Tribunal (MRD) for review of a decision of the Department dated 19 May 2017 that she does not meet the criteria for a grant of a Skilled – Nominated (subclass 190) visa. She is also aware that she could apply for a protection visa given the threats made to Mr Alam, which could extend to herself and Rayyan should they be returned to Bangladesh.
Mr KH Fazlur Rahman
Mr Rahman is the father of Faisal Alam. He has provided a Statement dated 30 June 2017. Mr Rahman is a lawyer and had previously owned fish-breeding ponds. The ponds were poisoned and the business destroyed. He also ceased his office practice as a lawyer some six months ago because of ill-health.
In September 2013, he says he was visited at home and then at his office by several colleagues of Saiful Islam demanding money owed to him by Faisal Alam. This was followed by threatening telephone calls leading to him changing his telephone number and, as translated by the interpreter, he then received e-mails. Threats had been made against Mr Rahman’s younger son.
In cross-examination by Mr Cunynghame, Mr Rahman could not provide an estimate of the frequency and number of telephone calls or the dates when the telephone number was changed. He was asked again about the number of e-mails received and denied he had said he received any. It was suggested by the Applicant and his wife that the interpreter had wrongly translated the question relating to email contacts. A further visit to his home on 23 December 2016 had been made by some men representing Mr Islam and demanding money. Following this episode, Mr Rahman had again moved to another house and has not been contacted since. However he said his daughter, who lives with her parents, does receive demanding telephone calls and neighbours have advised her of strangers making enquiries.
Mr Rahman believes that should his son and family return to Bangladesh they will be at risk of pursuit and violence.
In re-examination by Mr Gilbert, Mr Rahman denied having email access at both his home and his office. He confirmed that the threats and visits of Mr Islam’s colleagues had subjected him to stress impacting on his health.
Ms Selina Akter
Ms Akter is Mr Alam’s sister. She had provided a Statement dated 30 June 2017 and her evidence given by telephone confirmed that given by her father including that they did not have access to email services. She could not provide exact dates as to when she changed her father’s telephone numbers, but said that between September 2013 and December 2016 they were visited at home every two to three months by someone looking for them or making enquiries of their neighbours as to their whereabouts.
Mr Patrick Newton, Clinical and Forensic Psychologist
Mr Newton had assessed Mr Alam over two consultations totalling three hours in October 2016. This included the psychological tests known as the Personality Assessment Screener and the Minnesota Multiphasic Personality Inventory. He had been provided with the report of the psychologist Guy Coffey prepared for the County Court in 2014 and many of the documents filed before the Tribunal. The Report provided by Mr Newton, dated 1 November 2016, is detailed and thorough.
In summary, Mr Newton concluded that Mr Alam had symptoms of mild depression that were reactive in nature having developed in response to his prosecution and subsequent migration situation. Professional treatment of this depression was recommended. Mr Alam’s personality adjustment was on testing normal and adaptive and he exhibited a Low Risk for general recidivism, the only risk factor being identified was his criminal history. This assessment was essentially in agreement with that of Mr Coffey in 2014.
In his oral evidence before the Tribunal and in response to Mr Cunynghame’s questioning, Mr Newton enlarged on the so-called “Strong” and “Moderate” factors considered under the Risk of Recidivism wherein the only identified factor was the criminal history and clarified what he meant by stable marriage and good family support, this having been queried by Mr Cunynghame as Mr Alam’s family were based in Bangladesh. Mr Newton said he assessed Mr Alam’s relationship with his wife and son and concluded he and his wife were committed to each other and to their son and the family in Bangladesh provided both advice and emotional support. When cross-examined on why there was a ‘low risk’ and not ‘no risk’ at all, Mr Newton stated that statistically, a finding of ‘no risk’ would make no sense and that ‘low risk’ is the lowest category that would be professionally appropriate.
DOCUMENTARY EVIDENCE
The documentary evidence has been summarised under Background to the Application. Additionally the G-documents contain fifteen further character references from co-workers, friends, school officials and the Dandenong Badminton Club to which Mr Alam belongs and also reports from the Royal Children’s Hospital relating to Rayyan’s treatment of the right hand and need for further intricate surgery to effect pollicisation of the left index finger to provide prehensile (the ability to grab/hold) function to this hand. The character references reflect those already reported above.
RELEVANT LAW
With regard to applications for visas, s 501 of the Act provides that:
(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test
Note: Character test is defined by subsection (6)
The character test is outlined in s 501(6) of the Act and s 501(6)(a) relevantly provides that a person does not pass the character test if they have a substantial criminal record (as defined by subsection (7)). Section 501(7)(c) of the Act states that a person has a substantial criminal record where they have been sentenced to a term of imprisonment of 12 months or more.
Under s 499(1) of the Act, the Minister may make directions to a person or body having functions or powers under the Act about the performance of their functions or the exercise of their powers. Under s 499(2A), decision makers, including the Tribunal, must comply with a direction made under s 499(1). Direction No 65 (the Direction) is a direction made under s 499(1) of the Act and was made on 22 December 2014. It provides a guide for decision makers performing functions and exercising powers under ss 501 and 501CA of the Act, including the exercise of the discretion to refuse a visa under s 501(1) of the Act (paragraph 6.1(4) of the Direction).
Paragraph 6.2(1) of the Direction states that:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
Paragraph 6.2(3) provides that the principles referred to above provide a framework within which decision makers should approach their task of, amongst other things, deciding whether to refuse to grant a non-citizen a visa under s 501 of the Act. Those principles to are set out in paragraph 6.3 of the Direction:
6.3Principles
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
In determining whether to exercise the discretion to refuse to grant a visa under s 501(1) of the Act, a decision maker must take into account the considerations outlined PART B of the Direction, which refers to primary considerations and other considerations. Paragraph 11.1(1) provides that the primary considerations are:
…
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian Community.
Each of those primary considerations is elaborated upon in paragraphs 11.1 to11.3 of the Direction, the relevant extracts of which are outlined below:
11.1Protection of the Australian Community
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
11.1.1The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
…
e)The sentence imposed by the courts for a crime or crimes;
f)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
g)The cumulative effect of repeated offending;
…
11.1.2The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.
(2)In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(3)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence from independent and authoritative sources on the likelihood of the non-citizen reoffending;
ii.evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
iii.the duration of the intended stay in Australia.
(4)Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.
11.2Best interests of minor children in Australia affected by the decision
(1)Decision-makers must make a determination about whether refusal is, or is not, in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant the visa is expected to be made.
…
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact…;
b)The extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18)…;
c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
…
11.3Expectations of the Australian community
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa of application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.
Paragraph 12(1) of the Direction provides that the other considerations include (but are not limited to):
…
a)International non-refoulement obligations
b)Impact on family members;
c)Impact on victims;
d)Impact on Australian business interests.
Each of those other considerations are elaborated upon in paragraphs 12.1 to 12.4 of the Direction, the relevant extracts of which are outlined below:
12.1International non-refoulement obligations
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2)The existence of a non-refoulement obligation does not preclude refusal of a non-citizen’s visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists.
(3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s501 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa)
(4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that the non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.
…
12.2Impact on family members
(1)Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely;
12.3Impact on victims
(1)Impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where that information is available and can be disclosed to the non-citizen being considered for visa-refusal;
12.4Impact on Australian business interests
(1)Impact on Australian business interests if the non-citizen’s visa application is refused, noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project of delivery of an important service in Australia.
Finally, it is important to note that paragraph 8(4) of the Direction provides that primary considerations should generally be given more weight than the other considerations. Furthermore, paragraph 8(5) provides that one or more primary considerations may outweigh other primary considerations.
SUBMISSIONS
The Applicant
Mr Gilbert outlined the unusual features of this case in that Mr Alam, both before and after the offences for which he was sentenced to 12 months imprisonment, had exemplary higher education results and a stable high performance work history providing two four year periods in which his proclivity for offending could be assessed. Despite the length of the sentence initially imposed by the County Court Judge, Mr Alam had, following an appeal to the Court of Appeal, been released after serving 131 days in jail. Following his release, Mr Alam resumed work with his pre-sentence employers, completed the 300 hours of the ordered community service and did not re-offend. Mr Gilbert contrasted this with the more frequent situation in matters before the Tribunal involving the cancellation, refusal or revocation of visas, where little to no time is spent in the Australian community by an applicant prior to their hearing.
Reliance was placed on the Court of Appeal decision in Alam v The Queen [2015] VSCA 48 where at paragraph 17 their Honours said:
Moreover the applicant co-operated with the police – albeit three interviews were required for the full picture to emerge – and provided them with information about other offenders and the fraudulent scheme. His cooperation extended to providing investigators with necessary passwords for email accounts… The applicant’s plea of guilty was entered at the very earliest opportunity… and was accompanied by remorse. Despite severe financial difficulties, he made substantial reparation in contemplation of a pecuniary penalty order being made… These features went significantly in mitigation.
And at para 18:
On one level the applicant’s offending was serious, since innocents were duped into handing over substantial sums in the belief they were dealing with Australian officials. Nonetheless… charge 1 involved but five false documents; and charge 2, seven telephone calls.
Finally, at para 19 they concluded:
---- thus the total effective sentence, is manifestly excessive.
In relation to the nature and seriousness of Mr Alam’s offending, it was conceded that Mr Alam’s offences were serious as, by virtue of paragraph 11.1.1(1)(b) of the Direction, they were committed against vulnerable members of the community, being citizens of Bangladesh who had entrusted him with their money in exchange for the provision of a service he had no ability or legal authority to provide. However, in mitigation, it was submitted that, as the sentence imposed for his convictions after the appeal to the Court of Appeal had been reduced to 12 months and Mr Alam had been released after serving 131 days, Mr Alam’s failure to meet the character test was the most minimal capable. Furthermore, Mr Gilbert highlighted that there was no frequency of offending, trend of increasing seriousness in offending or cumulative effect in repeat offending.
With regard to the risk to the Australian community should Mr Alam reoffend or engage in other serious conduct, Mr Gilbert submitted that the Tribunal should rely on the opinions of the forensic psychologists Mr Coffey and Mr Newton, both of whom calculated Mr Alam’s risk of re-offending as low. He also placed emphasis on findings to the same effect by Judge Cannon in the County Court and the Court of Appeal. Mr Gilbert’s submissions also highlighted the fact that Mr Alam had no history of drug or alcohol abuse, no mental health issues and no history of breaching court orders. Indeed, it was submitted that Mr Alam fully complied with his CCO and had repaid almost 50% of the pecuniary penalty order. Mr Alam’s lack of prior or subsequent convictions was also stressed, as was the time Mr Alam spent in the community without incident, following his release from prison. Finally, it was argued that, following his time in prison, Mr Alam was genuinely remorseful and dedicated to a law abiding life.
Given Rayyan Alam’s congenitally rudimentary thumbs and the need for complex surgery, not available in Bangladesh, it was strongly argued that it was in the best interests of this child that his parents and he be allowed to stay in Australia. Rayyan is 5 years old.
While agreeing that the Australian Community expectations were a primary consideration it was contended that, right thinking members of the community, apprised of the facts of this case, would not expect refusal of Mr Alam’s visa. In this regard, reliance was placed on the view expressed by Block DP in regard to the term Expectations of the Australian Community (as it appeared in an earlier Ministerial Direction) in Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458 (Re Jupp) at [7]:
It assumes (incorrectly) that there is an Australian community which thinks as one. The supporters of One Nation would have one view as regards immigration, and there is of course a very large diametrically opposed body of opinion in Australia. I construe this reference as being correctly made to middle-of-the-road reasonable members of the Australian community who do not hold extreme views one way or another. And I think that there is a further limiting factor and that is that one must import into the Australian community, knowledge of the evidence before me. …
Mr Gilbert addressed the relevance of non-refoulement obligations to this matter, noting that there was evidence from Mr Alam, his father and his sister that persons were approaching and threatening Mr Alam’s family in Bangladesh, allegedly seeking repayment of amounts owed. He argued that this claim must be considered by the Tribunal and cannot be deferred on the basis that Mr Alam can apply for a protection visa, as suggested by paragraph 12.2(4). He made that submission primarily on the basis that the evidence may not be sufficient to support a protection claim and that Mr Alam’s fear of harm concerns a private matter, which is arguably outside the grounds found within the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol. He also noted that what may happen to Mr Alam and his family upon his return to Bangladesh may not constitute serious harm or significant harm for the purposes of s 36 of the Act. It was submitted, however, that the harm that could occur to Mr Alam should be considered under the complimentary provisions. Mr Gilbert drew attention to the recent decision of the Full Court of the Federal Court in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96, and the earlier decision of the Federal Court in Goundar v Minister for Immigration and Border Protection [2016] FCA 1203. Essentially, those cases (the former of which special leave is being sought to appeal to the High Court of Australia) boil down to the proposition that the assessment of international non-refoulement obligations cannot be deferred merely because an applicant could apply for a protection visa at a later point. Although both cases had concerned s 501CA revocations of a mandatory cancellation rather than a s 501(1) refusal to grant a visa, it was submitted that the principle in these cases remained relevant to addressing non-refoulement in a visa refusal context. Finally, the comments in the County Court sentencing that Judge Cannon took into account the threats to Mr Alam and his family in Bangladesh were also advanced as evidence of a risk of harm.
Also addressed were the considerations outlined in paragraphs 12.3(1) and 12.4(1) of the Direction – the Impact on Victims and Impact on Australia business interests. Mr Gilbert contended there was no evidence of any impact upon victims in Australia and that in terms of an impact on Australian business interests if Mr Alam was refused a visa, the evidence was that Mr Alam had through his continuing employment made a significant contribution in his service sector and that he has a promising career ahead of him, possibly in accountancy (an ‘in-demand’ field in Australia).
It was finally submitted that the evidence before the Tribunal was sufficient to satisfy the Tribunal that the decision under review should be set aside and that Mr Alam’s visa should not be refused under s 501 of the Act.
The Respondent
In relation to the nature and seriousness of Mr Alam’s offending, Mr Cunynghame referred the Tribunal to the findings of Judge Cannon in the County Court where Her Honour described Mr Alam’s offending as most serious as he had deprived those who could least afford it of a significant amount of hard earned money and had described his assertion that he always intended to repay the victims as fanciful. Judge Cannon regarded Mr Alam as an active and willing participant in this fraudulent enterprise rejecting Mr Alam’s claim that he had been, in effect, blackmailed into continuing the fraud. Mr Cunynghame submitted that the Tribunal should strongly consider these remarks despite the sentence being set aside by the Court of Appeal. It was also submitted that the fact that a sentence was imposed was indicative of the seriousness of Mr Alam’s offending, as the imposition of a term of imprisonment is the last resort in the sentencing hierarchy. It was further argued that although Mr Alam’s offending was not violent or sexual in nature, it was nonetheless serious as Mr Alam’s crimes were directed towards and exploitative of individuals attempting to obtain lawful passage to the Australian community. Finally, in contrast to the view that Mr Alam had only committed two offences, the respondent noted that Mr Alam offended over a substantial time period of 16 months.
In relation to the risk of harm to the Australian community should Mr Alam reoffend, it was contended that despite the two forensic psychologists’ opinions that Mr Alam had a low risk of reoffending, as accepted by both the County Court and the Court of Appeal, there remained a risk as Mr Alam’s offending had occurred at a time when he was financially stressed and should such stress reoccur the risk would rise, particularly as Mr Alam had already made an undertaking to repay a further sum of $45,000. It was further contended that there was no evidence of formal rehabilitation.
With regard to the expectations of the Australian community, the respondent submitted that this should weigh in favour of refusal. Mr Cunynghame outlined paragraph 11.3(1) of the Direction and noted paragraphs 6.3(3) and 6.3(6) of the Direction as important principles to consider when addressing the question. He stated that the nature of the applicant’s conduct was such that the Australian community would expect that the applicant should not be rewarded with the grant of a visa.
It was accepted by the respondent that it would be in the best interests of minor children in Australia, namely Rayyan Alam, to not refuse the grant of a visa under s 501(1) of the Act. However, Mr Cunynghame contended that Ms Afrose could apply for a student visa in her own right to ensure that she and Rayyan could stay in the country, although this was a complex process and not currently available to her.
In relation to international non-refoulement obligations, it was submitted that the Tribunal is required to turn its mind to the claims made by the applicant and to give them weight as it considers appropriate. It was not open to the Tribunal to defer the matter on the basis that Mr Alam could apply for a protection visa at a later point. However, it was submitted that the fact Mr Alam could apply for a protection visa nonetheless goes to the weight that should be given to this consideration and it was noted that the level of analysis required in assessing international non-refoulement obligations in paragraph 12.1 of the Direction was not the same as that required when considering an application for a protection visa (citing Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 at 521).The respondent noted that the refusal to grant the visa would impact on Mr Alam’s immediate family members in Australia, but that this consideration was not sufficiently compelling so as to outweigh other considerations weighing in favour of refusing the visa.
The Respondent formally submitted that the delegate’s decision to refuse the application should be affirmed by Tribunal as it was the correct and preferable decision.
CONSIDERATION
The Tribunal has had the advantage of hearing sworn evidence from Mr Alam and his wife, Ms Afrose, in person as well as oral evidence from his father and sister in Bangladesh, all of whom have been affected directly by the criminal offences with which Mr Alam was charged namely:
·Charge 1 – Making a false Commonwealth document, and
·Charge 2 – Falsely representing himself to be a Commonwealth official.
At the County Court, Mr Alam pleaded guilty but does not appear to have fully understood the plea entered by his barrister on his behalf. Judge Cannon did not accept that he had been inveigled to participate in a scam, under threats amounting to blackmail, to defraud Bangladeshi nationals seeking immigration visas to Canada. The explanations advanced on his behalf were rejected as being fanciful as was the claim of retaliatory threats to family members in Bangladesh and to himself should he return to Bangladesh. The two year sentence to imprisonment was set aside on appeal to the Supreme Court as being manifestly excessive resulting in his release from prison after serving 131 days but subject to ongoing correction and community orders all of which have been complied with.
The Tribunal found Mr Alam and his wife to be truthful witnesses and Mr Alam’s remorse was evident. He was reduced to tears on several occasions when considering the impact of his offences on the innocent victims and his family. He has an excellent work history both before and after the offences were committed and importantly after his term of imprisonment. His employers expressed their desire to re-employ him after his imprisonment. His relationship with his wife has been strengthened and he seeks her input and advice. His religious conviction has also strengthened. He continues to work long hours and do all he can to repay via AFSA and would be prepared to return to Bangladesh for a short period of time (days) to arrange the transfer of the remaining $45,000 (approximate sum) to AFSA. This has become necessary as his father-in-law, the joint signatory to the Prime bank account, died and Mr Alam must present in person to the bank to provide instructions.
The Tribunal is required to address the Part B requirements of Direction 65 and reach its own decision. As Mr Alam pleaded guilty to the offences as charged and was sentenced to 12 months imprisonment but released after 131 days, he fails the character test as set out in s 501(6)(a) of the Act and this is not disputed. The issue for the Tribunal is to determine whether the delegate’s decision to refuse his visa application is correct as assessed by Direction 65.
Protection of the Australian Community
Nature and Seriousness of Offending
With regard to the nature and seriousness of Mr Alam’s conduct, it is clear that Mr Alam’s conduct was not violent or sexual in nature. However, it is nonetheless clear that Mr Alam’s criminal conduct is serious. That is so given the nature of the offences he committed, the fact a sentence of imprisonment was imposed for his offences and due to the fact that his offences were directed towards a vulnerable group of individuals, being Bangladeshi nationals who had entrusted him with their money for the provision of a service he had no ability or authority to provide.
The Risk to the Australian community should further offences be committed or other serious conduct be engaged in
The opinions of two experienced forensic psychologists is that the risk of Mr Alam reoffending is low. The Tribunal accepts the evidence of Mr Newton that as a ‘zero risk’ is a statistical impossibility, a ‘low risk’ rating is the minimum assignable. These opinions are reinforced by Mr Alam’s conduct and behaviour over the post-offence five years, which make it clear that Mr Alam is genuinely remorseful for his actions and is committed to a law abiding life.
Conclusion
Mr Alam’s offending is serious, his offences having been committed against vulnerable Bangladeshi nationals who had entrusted him with their money. Furthermore, the harm that could be caused to the Australian community or individuals (be they within the Australian community or overseas) if Mr Alam reoffended is serious. However, the Tribunal is of the view that Mr Alam’s risk of reoffending is low and finds that Mr Alam does not represent an unacceptable risk of harm to the Australian community or other individuals if his visa were not refused under s 501(1) of the Act. As such, the Tribunal finds that the protection of the Australian community consideration weighs slightly in favour of not refusing the visa under s 501(1) of the Act.
The best interests of minor children in Australia affected by the decision
Rayyan is the only child of Mr Alam and Ms Afrose. He was born in Australia and English is his preferred language. Rayyan has an incapacitating congenital defect, having been born with rudimentary thumbs which appear in the photographs provided to be little more than skin tags but may have some underlying bone. As a result, his hands lack the ability to grasp as it is the thumb, with its movements of flexion, extension, abduction, adduction and opposition that makes grasping possible (the Tribunal’s knowledge in this regard is derived from previous surgical practice and teaching of anatomy). He has undergone surgical correction by pollicisation (conversion to a thumb – pollix) of the index finger of his right hand. This involved a five hour operation at the Royal Children’s Hospital followed by hand therapy which is ongoing. It is planned to correct the left hand in the future. He requires special assistance in schooling and is learning to write. The Tribunal, by virtue of its past experience, is aware that Mr Alam and his wife’s claim that such treatment would not be available in Bangladesh is correct. This consideration weighs heavily in favour of not refusing the visa under s 501(1) of the Act.
Expectations of the Australian Community
The Tribunal notes the decision in Re Jupp relating to the proposition that this consideration should be considered through the lens of a middle-of-the-road reasonable member of the Australian community who does not hold extreme views one way or another on immigration matters and who has full knowledge of the evidence before the Tribunal. Although Re Jupp considered an earlier Ministerial Direction, the Tribunal is of the view that the proposition outlined above nonetheless remains relevant when considering the expectations of the Australian community under Ministerial Direction 65. In a more recent decision of Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999 (Re Rabino), Forgie DP noted that determining the expectations of the Australian community is ultimately a matter for judgment, the facts of which that judgment is made must be made on the basis of facts established by the evidence (at [72]). Furthermore, it was noted in that decision that the expectations of the Australian community consideration is more circumscribed by the principles set out in paragraph 6.3 of the Direction than it has been under previous Ministerial Directions (Re Rabino at [60]-[72]). Indeed, paragraph 6.2(1) of the Direction states that the principles in paragraph 6.3 of the Direction reflect community values and standards.
The Tribunal notes the principle in paragraph 6.3(3) of the Direction that where a non-citizen commits a serious crime, they should generally expect the privilege to stay in Australia to be denied. Furthermore, the principle in paragraph 6(6) of the Direction is also of relevance, stating that the Australian community has a low tolerance of criminal conduct by visa applicants and that there should be no expectation that such visa applicant should be allowed to come to or remain permanently in Australia. Mr Alam’s offending was serious and committed over a considerable period of time. Nonetheless, the Tribunal is not convinced that the nature of his offending is such that the Australian community would not give him a second chance and notes that there is not an unacceptable risk that Mr Alam will breach the Australian community’s trust again and commit further offences. As outlined above under the protection of the Australian community consideration, Mr Alam is a low risk of harm to the Australian community. Finally, and most importantly, the Australian community would not expect Mr Alam’s visa to be refused under s 501(1) of the Act when the impact of that decision would have significant adverse consequences for Rayyan, a minor with an incapacitating congenital defect requiring surgery and therapy that could not possibly be provided in Bangladesh. The Tribunal concludes that the expectations of the Australian community consideration weighs slightly in favour of not refusing Mr Alam’s visa under s 501(1) of the Act.
International Non-Refoulement Obligations
The question of non-refoulement obligations has been raised by both parties and submissions have been made on the subject. Both parties have submitted that the Tribunal is required to turn its mind to the claims made by Mr Alam regarding the risk of harm should he be returned to Bangladesh. The Tribunal agrees with the respondent’s submission that the fact that Mr Alam can still apply for a protection visa nonetheless remains relevant to any weight to be given to this consideration and also the submission that the assessment required for this consideration is not the same level of analysis required when assessing a claim for a protection visa. More importantly, the Tribunal agrees with the respondent’s submission that the applicant has not advanced any evidence of probative value indicating a real risk of harm in Bangladesh. Certainly it would appear from the evidence of Mr Alam, his father and his sister that disgruntled individuals associated with Mr Islam have visited his father’s houses and office in Bangladesh. Those individuals have asked when and if Mr Alam would be returning to Bangladesh and have allegedly sought repayment of money owed. However, there is no evidence of probative value before the Tribunal that Mr Alam faces a real risk of harm from these individuals if returned to Bangladesh. In this regard, it should be noted that Mr Alam was prepared to travel to Bangladesh for a short period of time (days) to arrange the transfer of the $45,000 to AFSA. This is something of a necessity given he needs to repay the remainder of the pecuniary penalty. However, this in combination with the lack of probative evidence of a real risk of harm from Mr Alam, his father and his sister leads to a conclusion that Mr Alam (and his wife and son) will not be at risk of harm if returned to Bangladesh. Accordingly, this consideration has been given no weight.
Impact on family members
The impact of the refusal of Mr Alam’s visa application on family members, namely Ms Afrose and Rayyan Alam is largely obvious and was not a point of much contention between the parties. If Ms Afrose’s appeal through the MRD is unsuccessful and Mr Alam’s appeal in this matter is unsuccessful, both she and her son would be returned to Bangladesh. Most importantly, as noted in more depth under the Tribunal’s conclusions on the best interests of minor children in Australia, the refusal of Mr Alam’s visa would have a significant adverse impact on Rayyan. The Tribunal finds that this consideration weighs strongly in favour of not refusing the visa under s 501(1) of the Act.
Impact on victims
There was no evidence or submissions before the Tribunal on the impact of a decision to grant a visa to Mr Alam on the victims of his offending. Accordingly, this consideration has been given no weight.
Impact on Australian business interests
It was submitted by the applicant that the evidence before the Tribunal indicated that Mr Alam was well employed while in Australia and that he has made a significant contribution to his service sector. Furthermore, it was submitted that Mr Alam has a promising career ahead of him, particularly in accountancy, an ‘in demand’ field. The Tribunal does not accept that submission. Paragraph 12.4(1) of the Direction notes that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project or delivery of an important service in Australia. The Tribunal has no evidence before it that Australian business interests would be impacted by a decision to refuse to grant a visa. In particular, there is no evidence that the delivery of a major project or service in Australia would be compromised by Mr Alam’s absence. Accordingly, no weight is given to this consideration.
DECISION
The weighing of considerations as required by Direction 65 is an onerous task and in Mr Alam’s case, particularly so. However, the impact of a decision to refuse to grant the visa under s 501(1) of the Act on the future of Rayyan Alam would potentially abort any prospect of him achieving a normal and productive life. The Tribunal considers this factor to be paramount above all others in Mr Alam’s circumstances, however it also notes that the protection of the Australian community and expectations of the Australian community considerations also weigh slightly in favour of not refusing the visa under s 501(1) of the Act. Additionally, the Tribunal also takes into account the impact on family members and that this consideration also weighs strongly in favour of not refusing the visa under s 501(1) of the Act.
The Tribunal sets aside the decision under review and in substitution decides that Mr Alam’s application for a Skilled – nominated (subclass 190) visa should not be refused under s 501(1) of the Act.
I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member
.................................[sgd].......................................
Associate
Dated: 9 August 2017
Date of hearing: 31 July 2017 Counsel for the Applicant: Mr Guy Gilbert Advocate for the Applicant: Ms Catherine Farrell Solicitors for the Applicant: Clothier Anderson Immigration Lawyers Advocate for the Respondent: Mr Adam Cunynghame Solicitors for the Respondent: Sparke Helmore APPENDIX A – LIST OF TENDERED DOCUMENTS
Exhibit A1 – Statutory Declaration or Mr Faisal K H Alam dated 30/6/17
Exhibit A2 – Statutory Declaration or Mr Michael Simpson dated 30/6/17
Exhibit A3 – Statutory Declaration of Ms Maluge Dias dated 19/7/17
Exhibit A4 – Statutory Declaration of Mr Habib Ur Rehman dated 30/6/17
Exhibit A5 – Statutory Declaration of Mrs Diljahan Afrose dated 30/6/17
Exhibit A6 – Statutory Declaration of Mr Fazlur Rahman dated 30/6/17
Exhibit A7 – Statutory Declaration of Ms Selina Akter dated 30/6/17
Exhibit A8 – Statutory Declaration of Ms Catherine Tasevski dated 3/7/17
Exhibit R1 – Paginated G-Documents
Exhibit R2 – County Court sentencing remarks dated 13/11/14
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