ALSHAMAILEH (Migration)

[2018] AATA 5882

ALSHAMAILEH (Migration) [2018] AATA 5882 (17 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr AMER YASEEN AHMAD ALSHAMAILEH

CASE NUMBER:  1817737

DIBP REFERENCE(S):  BCC2018/1185479

MEMBER:Antoinette Younes

DATE:17 December 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.

Statement made on 17 December 2018 at 1:14pm

CATCHWORDS
MIGRATION – cancellation – Partner (Migrant) (Class BC – Subclass 100 (Spouse) – incorrect and false information – alleged criminal offending – fraudulently obtained documents – credibility issues – inconsistent evidence – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 100, 101, 103, 107, 108, 109, 140, 359, 375
Migration Regulations 1994, r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 100 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant has not complied with ss101 and 103 of the Act.  The issue in the present case is whether those grounds for cancellation are made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 20 September 2018, 4 October 2018 and 5 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from a number of witnesses.

4. The Tribunal hearings were conducted with the assistance of interpreters in the Arabic and English languages. The applicant was represented in relation to the review by his registered migration agent.

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

   SECTION 375A CERTIFICATE

6. In the course of the hearing, the Tribunal advised the applicant of the existence of the s. 375A Certificate. The Tribunal advised that the Certificate is valid because the documents subject to the Certificate contain confidential information relating to third-party providers of information and officers of the Department and consequently the disclosure of that information may result in breach of privacy and safety concerns.  The Tribunal put the gist of that information in the course of the hearing, pursuant to s.359AA and s.359A.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

8. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

9. On 11 April 2018, the Department sent to the applicant a Notice of Intention to Consider Cancellation (NOITCC), to which the applicant responded in a Statutory Declaration of 23 April 2018 and submissions on 24 April 2018.  Relevant parts of the submissions and supporting documents are discussed below.

10. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

    Was there non-compliance as described in the s.107 notice?

11. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with ss 101 and 103.

    The visa application and relevant information provided in support

12. The Tribunal discussed with the applicant information contained in the delegate’s decision record, a copy of which the applicant provided in support of the application for review. Specifically, the Tribunal referred to the information that:

    i)   On 27 September 2007, the applicant lodged an application for a Spouse (Provisional) (Subclass 309) visa on Form 47SP.

    ii)     Question 81 of Form 47SP asked “Have you, or any other person included in this application, ever:

    ·been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?, the applicant replied “No”.

    ·been charged with any offence that is currently awaiting legal action?, the applicant replied “No”.

    iii)    At question 96 of Form 47SP, the applicant signed the declaration:      

    Warning: Under the Migration Act of 1958, there are penalties for deliberately giving false or misleading information.

    Maximum penalty = 10 years imprisonment and/or AUD110,000.

    ·     I declare that the information I have supplied in this application is complete, correct and up-to-date in every detail.

    ·     I understand that if I give false or misleading information, my application may be refused, or any visa granted may be cancelled.

13. In support of the visa application, the applicant completed a Form 80 – Personal particulars for character assessment. Question 29 of the Form 80 asks:

    ·    (a) Have you, or any other person included in this application, ever been convicted of, or found guilty of, ANY offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application and any “spent” convictions)?, the applicant responded “No”.

    ·    (e) Are you, or any person included in this application, aware of any proceedings pending against you overseas or in Australia for an offence, including proceedings by way of appeal or review?, the applicant responded “No”.

    ·    (g) Have you, or any other person included in this application, ever been charged with any offence overseas or in Australia that is currently awaiting legal action?, the applicant responded “No”.

14. In support of the visa application, the applicant provided to the Department a Jordanian Ministry of Justice NON-CONVICTION CERTIFICATE issued by the Karak First Instance Court on 8 October 2007 which indicated that he did not have any criminal convictions. He also provided a Jordanian Ministry of Justice Non-Conviction Certificate (Police Clearance) issued on 3 February 2009 by the Alkarak Magistrates Court (document [no.] ) indicating that he did not have any criminal convictions.

15. On 22 February 2009, the applicant signed a Statutory Declaration stating:

    ·I have never been convicted of a crime or any offence in any country;

    ·I have not been charged with any offence that is incomplete or awaiting legal action, nor am I aware of any investigation into my affairs which has the potential to lead to such charges;

    ·I have not been acquitted of an offence on the grounds of unsoundness of mind or insanity; I do not have any spent convictions under any spent convictions legislation in any country or any convictions on my police record;

    ·I have not been involved in war crimes or crimes against humanity;

    ·I have never been associated with anyone else who has been or could reasonably be suspected to have been, or is, involved in any activities referred to above; and

    ·to the best of my knowledge I do not have any matters which are either unresolved or in which I have been, or am involved, that would bring into question whether or not I pass the character test as defined at section 501 of the Migration Act 1958.

    A copy of the character test is attached for your information. If you are unable to declare any one or more of the matters referred to above, please attach details and do not sign this declaration.

    I fully understand the above, or the above has been fully explained to me by another person or interpreter fully understands the above, such that I fully understand the above.

    And I make this solemn declaration by virtue of the Statutory Declarations Act 1959, and subject to the penalties provided by that Act for the making of false statements in statutory declarations, conscientiously believing the statements contained in this declaration to be true in every particular.

    I understand that any incorrect information may result in refusal of my application or, if a visa has been granted, the cancellation of my visa. I understand that if my visa is cancelled after entry to Australia I will be required to leave Australia.

16. On 22 March 2009 and based on the information provided, the applicant was granted a Spouse (Provisional) (subclass 309) visa. On 23 August 2011, the applicant was granted the Spouse (Migrant) (subclass 100) visa.

    Events arising subsequent to the visa grant

17. As outlined in the delegate’s decision record, on 7 June 2013, the applicant lodged an online application for Australian Citizenship by Conferral on form 1300T – Application for Australian Citizenship – General Eligibility. The application was refused on 27 September 2013.

18. The applicant lodged a further online application for Australian Citizenship by Conferral on 15 May 2015. The character declarations section on page 10 of that second application, indicates the following responses to the questions:

    Has the applicant been convicted of, or found guilty of, any offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any ‘spent’ convictions)?

    NO

    Has the applicant been confined in a prison or in a psychiatric institution by order of the court made in connection with criminal proceedings overseas or in Australia?

    No

    Is the applicant aware of any proceedings pending against them overseas or in Australia for an offence, including proceedings by way of appeal or review?

    No

    Has the applicant ever been charged with any offence overseas or in Australia that is currently awaiting legal action?

    No

19. In support of the citizenship application, the applicant provided a Jordanian Ministry of Justice Non-Criminal Record Certificate number  issued by the Al Zarqa Head Court on 20 July 2017 which indicated that he did not have any criminal convictions.

20. The Department undertook integrity checks to verify the information and on 11 March 2018, information became available that the Non-Criminal Record Certificate number  [is] not recorded with the Jordanian authorities and that the Certificate is either counterfeit or had been fraudulently obtained [details deleted].

21. The Department became aware that the applicant while residing in Jordan prior to his arrival in Australia was involved in an [offence 1] as well as an alleged [offence 2].

    RELEVANT INCIDENTS

22. There are two relevant incidents relating to allegations that the applicant was imprisoned in Jordan on two occasions, namely for six months in 2005 in relation to the [offence 1] which led to the victim being blinded in one eye and that in December 2007, the applicant was imprisoned for three months in relation to [offence 2].

    THE SHOOTING/FIREARM INCIDENT

23. The Tribunal asked the applicant about the [offence 1] incident.  He gave evidence that he worked as a police officer with the Jordanian General Security Department (police department) from January 2004 until 2007.  In relation to the incident, he said that at the time of the incident, one of his colleagues (Adel) came to his home in November 2005, where he lived alone.  He said the incident took no more than three minutes.  He said Adel went to the applicant’s room where the applicant had left his gun on the desk.  The applicant was in the kitchen putting water in the kettle to make coffee when he heard a shotgun.  He said this was during a Muslim festival and he thought it was fireworks.  He went to the room and saw Adel who was injured in the head.  He said he called the Police Department Operations Emergency number and provided details.  Approximately ten minutes later, the ambulance arrived and took Adel to the hospital.  He said Adel had injured his left eye and the bullet went through his head.  He had surgery on the same day and was in intensive care subsequently. 

24. The applicant gave evidence that he was questioned and was in police detention/custody for six months, as a precautionary measure and to enable investigations.  He was released and returned to work and did not hear anything about Adel.  He however heard that the applicant had not shot Adel.  The applicant said he had received conflicting information that Adel did not remember details of the incident but that Adel had said that the applicant did not shoot him.  He said he was not charged with anything in relation to this incident. 

25. The Tribunal indicated that allegations of shooting are serious and asked if he had a lawyer.  He agreed and said that he did not instruct a lawyer.    He said he was not convicted so he did not get a lawyer.  The Tribunal indicated that he was in police custody for six months which was serious.  He explained that in Jordan, tribal laws apply and whilst in custody, he had to wait.  He said at the time of the incident only he and Adel were in the room so the police needed to investigate.

26. The Tribunal asked the applicant about Adel’s police rank and he said that Adel had “two stripes” and had been in the service for about 5 years.  The Tribunal put to the applicant that this would suggest that Adel was a senior and an experienced officer, including having experience in handling firearms, with which the applicant agreed. 

27. The Tribunal asked the applicant about the exact location where the incident occurred and he explained that at that time, he lived in a three room unit, including two bedrooms.  He said Adel had gone to the spare bedroom where the applicant had left the gun.  The Tribunal referred to the applicant’s statutory declaration of 23 April 2018 provided to the Department where he claimed that the gun was sitting on the table in the lounge and that Adel was playing with the gun.  The Tribunal noted the inconsistency in the applicant’s evidence.  The applicant said it was not the lounge but in the spare room.

28. The Tribunal found aspects of the applicant’s evidence in relation to this incident to be difficult to accept. The Tribunal finds it difficult to accept that an experienced police officer like Adel would have such an accident. The applicant is not suggesting that Adel had shot himself on purpose; both in oral evidence and in his statutory declaration of 23 April 2018, the applicant is claiming that Adel shot himself accidentally. The Tribunal acknowledges that it is not far-fetched that even an experienced police officer could have an incident such as the claimed one, but the fact that there is an inconsistency between the applicant’s oral evidence and written claims in the statutory declaration in relation to the location where the incident took place raises concerns about the applicant’s evidence in relation to this incident. In the statutory declaration, the applicant claimed that the incident occurred in the lounge room of his unit, whereas in oral evidence, he stated that it occurred in the spare room. In the statutory declaration, he claimed that the gun was on the table located in the lounge but the applicant in oral evidence stated that the gun was in the spare room where Adel shot himself. The Tribunal is not convinced by his explanation that he had meant that the gun was on the table in the spare room. 

29. In isolation, it could be suggested that this is a minor/trivial inconsistency, but the Tribunal considers the location where the incident occurred to be a significant piece of information and it is difficult to accept that in a statutory declaration as recent as 23 April 2018, there would be such an inconsistency in the version of events. The Tribunal does not consider this inconsistency to be minor when taken in the context of the claim that the applicant was detained for six months as a result of this incident pending investigations, as well as the seriousness of the shooting.  Moreover, the applicant is a former police officer and it is reasonable to suggest that he would be aware that the location of a crime scene is a fundamental aspect.  The Tribunal has decided to give weight to the inconsistency.

30. In the course of the hearing on 5 December 2018 and when discussing documents provided, the applicant gave evidence that Adel’s family wanted him to pay about AU$40,000 to drop the charges relating to Adel.  The Tribunal asked why this would have happened given the incident occurred in 2005.  He said all happened after he arrived in Australia.  He said the family made the request in 2017.  The Tribunal questioned why after 12 years, Adel’s family would be asking him to pay this money.  He said last year when the family discovered that he was applying for citizenship, they took advantage of his vulnerability.  He said when his brothers went to see Adel’s father asking about the request, his father said that the applicant has many companies and businesses so he can pay.  The brothers offered to pay the money as assistance.  The Tribunal finds it difficult to accept that after 12 years and particularly in the context of the applicant’s claim that there was nothing outstanding, that Adel’s family would be requesting this money as claimed.  The Tribunal is not persuaded by his explanations.

31. Furthermore, the Tribunal finds it difficult to accept that the applicant would be detained/placed in custody for six months and he would not have obtained legal assistance in circumstances where the consequences were very serious. His explanations about trusting the Jordanian system and the application of tribal law are not convincing.

32. In light of those comments, the Tribunal is satisfied that the applicant is not truthful about the details of this incident, raising serious doubts about his version of events and suggesting that the applicant is capable of fabricating versions of events.

    THE KIDNAPPING INCIDENT

33. The applicant gave evidence that he was kidnapped and assaulted on 14 December 2007 by two men one of whom is Kalid. He stated that he tried to flee and reported the culprits and they were arrested. He stated that he was surprised to hear of the  [charges] against him in relation to [a person] who was about [age] at the time. He stated that [the person] told the authorities that [Kalid] had kidnapped the applicant and made the  [allegations] against him.  He said he was told that the matter had been referred to the General Attorney for investigation.  He stated that both he and Kalid were arrested but released two months later because [the person] told the authorities that the applicant did not [offend] as alleged.

34. The applicant provided a document titled, the President: Judge Mr Ahmad Byadah, issued on 4 December 2008, referring to an agreement subsequent to reconciliation between two parties, the accused KHALID and the victim AHMER (the applicant) who dropped the complaint and that the Court had decided to drop the complaint. The document however notes that the accused did not prove that the victim had caused him harm and found AHMER to be innocent. The document further notes that the accused was found guilty and was sentenced to imprisonment for one year.  The Tribunal gives this document limited weight as document examination has revealed that although it is a genuine document, the matter is still pending.

1. The Tribunal asked the applicant for details about the kidnapping incident. He stated that Kalid told him that he wanted to buy his car.  He said he was driven to a deserted area where they  held a gun at him, tied his hands up, took money from him, hit him on the head and later took him to another place where they untied his hands so he was able to escape. He stated that another person helped him and he went to the police where he reported the incident. He stated that until now he does not know why he was kidnapped but they took money from him so perhaps that was the motivation.  He said the  [charges]  [were] laid against him because Kalid was charged with his kidnapping. He stated that the incident took between 4 to 5 hours. The Tribunal pointed out that in the statutory declaration of 23 April 2018, he stated that he was held against his will for about three hours. He said it took about 4 to 5 hours which included reporting the incident to the authorities.

2. The Tribunal acknowledges that although it is possible that the incident occurred as claimed, the Tribunal finds it difficult to accept the applicant’s version of the claimed event. His version of the events about how he got away is difficult to accept; according to him, there were two men who had kidnapped him so it is difficult to see how one man was able to get away from two men who did not manage to catch him. The Tribunal has noted the inconsistency in relation to the length of time of the incident. The Tribunal is of the view that the inconsistency is minor and that the applicant’s explanation is reasonable. Consequently, the Tribunal has not drawn any adverse conclusions on the basis of the inconsistency. The Tribunal accepts that he was kidnapped and it is plausible that it was for the purpose of money but this does not mean that he was kidnapped because of the  [charges]. 

3. The applicant is claiming that Jordanian cultural norms play part in the criminal justice system.  The applicant in his statutory declaration of 23 April 2018 refers to the Jordanian family system “which is basically eye for eye, and the family system also has a lot of power in terms of helping to strengthen the legal system. If families can come to an agreement the court will uphold that decision most times, especially if Solooh (reconciliation) has been reached.”  Without intending any disrespect to another culture, it is difficult to see and the applicant was not able to provide a meaningful explanation, the reasons for laying  [charges] in relation to a [person] against the applicant.  It does not appear to the Tribunal to be “eye for eye”. It is difficult to see how a kidnapping charge would be an [“eye for eye”] .

4. In the course of the hearing on 20 September 2018 and in accordance with s.359AA, the Tribunal advised the applicant that there is information in the Departmental file that the applicant was imprisoned in Jordan on two occasions, namely for six months in 2005 in relation to shooting of a person with intent using an unlicensed gun which led to the victim being blinded in one eye. The applicant had to pay the victim’s family $20,000.  He also paid the victim to stop the case from proceeding.  The second occasion was in December 2007 where the applicant was imprisoned for three months in relation to [an indicent]. The Tribunal advised that the information indicates that the [person] when  [trying] to run away from the applicant, [was injured] and that the applicant’s family paid money and got him out of jail.  The Tribunal indicated that this information is inconsistent with his version.  In response, in relation to the incident with Adel, he said he sent Adel’s family $20,000 but denied paying the [the person’s] family. 

5. The Tribunal asked him if he knew why would anyone make such serious allegations and he said he was a police officer who did his job well.  He said he followed the law.  His job as a police officer was to protect people and one does not know the identity of their enemies.  He said he trusts the legal system and that justice prevails.  He stated that as a police officer he had clean records and did not do anything wrong. He stated that he was a law-abiding citizen who had faith in the legal system. He stated that he however does not know who his enemies are. He referred to his former partner (and sponsor for the Partner visa).  He said he does not know where these allegations came from but they are not true.  In relation to the allegation that the applicant’s family paid money in order to get him out of prison, the applicant stated that he never paid any money.

   MARRIAGE AND [CHARGES] IN AUSTRALIA

6. There are documents from the Magistrates Court, Perth relating to the [alleged offences]  . The Tribunal recognises that the  [charges] are not directly relevant to the circumstances that led to the cancellation of the visa.  They are however relevant to the exercise of discretion.  They are also potentially adverse information about the applicant and could provide a context within which the Tribunal determines the review.  Moreover, information came to light during the review process that caused concern that the applicant might be influencing witnesses. 

7. The Tribunal asked the applicant about his marriage to the former partner.  The applicant gave evidence that he did not know when he separated from his former wife but they divorced in October 2014.  The Tribunal found his evidence that he did not know when they separated to be evasive.  The Tribunal notes that on 23 August 2011, the applicant was granted the Spouse (Migrant) (subclass 100) visa and if they separated soon after, this could suggest that the marriage was not genuine and continuing.  In any event, they divorced three years later which in the Tribunal’s view raises doubts about the marriage.

8. The Tribunal asked the applicant why the marriage did not work out and he said it was because of [allegations against him].  He gave evidence that he was charged with [offences]. He said those charges have been discontinued.

9. In accordance with s.359AA, the Tribunal advised the applicant that there is information that there have been a number of [Orders] against the applicant since 2009 until 2012 and [Orders] made against the applicant [in] August 2013, [in] December 2015 by the Magistrates Court Perth.  The Tribunal asked the applicant about the [information] and he stated that the [information] concerned his wife.  He said he has been in Court in relation to those matters since 2009 but he has never been charged or convicted and that when the orders were listed for hearings, his former spouse withdrew. The applicant told the Tribunal that [the information never] resulted in charges and they were discontinued.  He said [details deleted] but none resulted in charges or a conviction.  He referred to an incident on [in] December 2016 when he wanted to give his son a present for his birthday but his former wife refused to allow him to give his son a present. 

10. The Tribunal is satisfied that since 2009, his former spouse [details deleted]. Although the Tribunal does not know the full [circumstances]  or to their resolution, the [circumstances] clearly suggest a tumultuous relationship between the applicant and his former spouse as early as 2009, raising serious doubts about the marriage. This is particularly significant in light of the fact that the Tribunal received a statement from the former partner noting, amongst other things that most of the allegations made against the applicant were false and due to her being unaware that her daughter had [“created them when she was unwell”].

11. The Tribunal expressed concerns that it had difficulties accepting that given the long-term problematic relationship that he has had with his former spouse and the divorce in 2014, the Tribunal doubts the authenticity of her statement and statutory declaration of 23 October 2018, particularly her claim that she is going to reconcile with the applicant.  He said she realised that her daughter was unwell and had made false claims.  He said she apologised and wants to reconcile.  The Tribunal expressed concerns that he might influencing the former spouse.  He said the only influence is that they realised they made a mistake against him and because of his only son.  He said they felt guilty.  He said his former spouse called him after the second hearing and he was surprised and told him that the step-daughter is unwell and needs him.  He told her he was in detention.  She said his son is now asking about him and she went and saw the representative.

12. The Tribunal has difficulty accepting that after years of animosity between the applicant and the former spouse that she is now coming forward and claiming her intention to reconcile.  The Tribunal is satisfied that the applicant has to a degree influenced and induced the former spouse to express support and claim intention to reconcile.  The Tribunal draws an adverse inference on this basis about the applicant’s credibility and gives no weight to the claim that the applicant would reconcile with the former spouse.

13. In relation to the allegation noted in the Departmental file, that the applicant threatened to kill someone if they spoke of [an incident]. He denied threatening anyone.  The Tribunal accepts that the relevant authorities such as the DPP and Police made a decision to discontinue the charges and the Tribunal is not looking behind that decision which could be due to many reasons which the Tribunal does not know.  However, the concern for the Tribunal arose as a result of a statutory declaration of 2 November 2017 by the step-daughter, provided to the Tribunal stating that all the information she had provided relating to the  [applicant] from 2009 until 2015 were “false and unlawful. I lied about every word I said in all my statements”. The Tribunal received a further statutory declaration dated 26 September 2018 by the step-daughter stating, amongst other things, “I understand the sensitivity of my past false accusations towards him as a serious unforgivable wrong deed. The accusations made by me and my emotionally distressed mother, have no content of truth to them. The family breakup was entirely my fault and I take full responsibility to my past actions”.

14. The step-daughter gave evidence in the course of the hearing and stated that she had made the false accusations as a result of her [illness]. Supporting material about her [health] were provided to the Tribunal, such as discharge summaries indicating, amongst other things that she has had admissions relating to [a specific condition]. In the course of the hearing, the Tribunal raised with the applicant that without a comprehensive report relating to the step-daughter’s [health], the Tribunal is uncertain about how her  [health] had impacted on [details deleted].

15. The Tribunal asked the applicant about how he obtained the statutory declaration of 2 November 2017 from the step-daughter and he stated that she went to his home in October 2017 but called him earlier crying on the telephone and saying that her mother had encouraged her to make those allegations so that he would be deported from Australia.  He said that with her knowledge, he recorded the telephone call. He stated that she stayed in his house for one month.  The Tribunal has concerns about the admission that alleged false accusations had been made and the step-daughter advised the relevant authorities that she had made the false accusations and of the basis. The applicant stated that he had not pressured or influenced her in any way.

16. The Tribunal accepts that the  [charges] have been discontinued and consequently the Tribunal has not drawn adverse inferences about the applicant on the basis of those charges. Although the Tribunal has concerns about whether or not the applicant has influenced the step-daughter, those concerns are not sufficient to make a finding with the required level of confidence that he had in fact done so which the Tribunal recognises would have serious consequences for the applicant.  The Tribunal however has decided to give limited weight to the step daughter’s evidence as being supportive in anyway.  On her admission, she has provided false information raising doubts about her evidence before the Tribunal.

17. In accordance with s.359AA, the Tribunal discussed with the applicant information that:

    ·The applicant had threatened to take revenge on people and that he had planned to go to the USA and kill a person who had insulted him in Jordan.

    ·The applicant had sent his passport to his brother in Jordan for renewal but because the applicant was [details deleted], the Jordanian authorities seized the passport.

    ·The applicant’s aunt’s husband works in the Jordanian army and had assisted the applicant to obtain a clear police certificate which did not show the record of shooting in 2005.

    ·The applicant is subject to a conviction of “no authority to drive” for which he was fined $200.

18. The applicant said that it is not true that he had planned to go to the USA and kill a person who had insulted him in Jordan.  He said that the person is in Jordan.  He denied being reported to the Department of Child Protection but accepted that he was not allowed to see his son by a consent order of the Family Court.  Asked to explain why he would agree not to see his son, he said his wife has caused him a lot of suffering.  He said he wanted to wait for his son to reach 18 years and that this is all because of the step-daughter.

19. In response to the NOITCC and to the Tribunal, the representative made the following submissions:

    ·The applicant was not aware of any outstanding matters when he lodged the subclass 309/100 visa.  The applicant did not intend to, or provide a fraudulent document.

    ·Jordanian non-conviction certificates can be obtained following a procedure (citation noted) and that both the Zarqa Court and Alkarak Court would have been required to communicate and confirm information relating to the applicant’s criminal record with the Jordanian public security of directorate which contradicts the Department’s interpretation that “these are two different entities with access to different records”.

    ·Upon further examination of certificate [number]  issued [in] February 2009 by the Jordanian directorate of public Security legal as well as the applicant’s non-conviction certificate dated 3 February 2009, were translated on 4 July 2016 instead of on the original issuing dates which might have adversely impacted the delegate’s decision-making. The non-conviction certificate was issued by the Ministry of Justice through Alkarak Magistrates Court which complies with the procedure. At the bottom of both translated certificates, there are stamps endorsed by the Alkarak Magistrates Court which contradicts the Department’s assumption that the Public Security Directorate in the first instance Courts have access to different records. The non-conviction certificate which the Department relied on to grant the subclass 309 visa was duly signed by the Chief of Registrars and the Court’s Registrar of lkarak Magistrates Court at the time of issuing the certificate.  The other letter  [was] not signed by Major Mohammed Al-Omari of the General Directorate of Legal Affairs at the time which raises doubts about the genuineness of the letter.

    ·In relation to the  [allegation] made on 14 December 2007, at the time that the applicant was required to respond to the notice of intention to consider cancellation, he was unable to obtain all the court records concerning this matter. The Department did not consider the fact that the alleged victim had made a subsequent statement on 20 January 2008 denying her prior statement in relation to the  [matters].

    ·In relation to the [offence 1] allegations, the technical report (gun powder residual test) completed by forensic science laboratory under the Jordanian Public Security Directorate which was produced on 23 November 2005 found that the metal residuals on the applicant were normal. The Department did not give regard to the applicant’s employment service record as a police officer in Jordan between 19 January 2004 and 20 April 2007. It is highly plausible that the Public Security Directorate made a decision to allow the applicant to remain serving in the Jordanian police force having conducted an investigation into the alleged [offence 1] that took place in November 2005. The Department did not give regard to the defect in the sentencing and verdict contained in criminal case [number], [in] January 2010 that it was a product of the trial that was carried out in the absence of the defendant.

    ·The applicant accepts that there was an incident in November 2005, however the applicant was not aware of any matter when he signed the statutory declaration on 22 February 2009 because he was not the subject of any legal proceedings.

    ·In answering that he has never been convicted of a crime or any offence in any country, the applicant provided correct information at the time. The only conviction that the applicant has relates to orders made by the Jordanian Court on 7 January 2010 when the court conducted a trial in the applicant’s absence.

    ·Although there is evidence to suggest that the Jordanian Public Prosecution pressed charges against the applicant on 21 April 2008, the applicant was cleared to return to his service in the Jordanian police force until 20 April 2007. The applicant was able to leave Jordan to Australia on 23 March 2009 despite the delegate’s assumption that the firearm charge was laid against the applicant on 21 April 2008. On 20 February 2009, the Department obtained potentially adverse information concerning the applicant, the applicant was still granted a subclass 309 visa on 22 March 2009.

    ·The applicant has never provided incorrect information or a bogus document. The applicant has recently gone through a contentious divorce during which he was wrongly accused of [an offence]. The District Court of Western Australia has dismissed the related charges against him on 10 April 2015. The applicant has a son, Moktar, and he has lost parental access temporarily due to [a set of circumstances].

    ·Section 101 of the Act does not extend to citizenship applications. The Department’s allegation that the applicant has provided incorrect answers in two of his previous citizenship applications, is irrelevant in this instance. The applicant has provided multiple character references as evidence that he possesses positive qualities.

    Documents and Section 359A letter

20. The Tribunal has before it a large number of documents, some of which if accepted as being authentic and lawfully obtained, support the applicant’s claims but a number of documents contradict his claims. It is also significant that the applicant has acknowledged that there are pending charges against him but he states that he did not know about those charges when he lodged the application or when he departed Jordan. Relevantly, in his statutory declaration of 23 April 2018, the applicant explained that:

    ·When his family applied for a police clearance for him on 16 July 2018, he was told that [specified] charges were laid against him on 21 April 2008.  He was “totally shocked” because he was in Jordan at the time. 

    ·He did not receive any information relating to the charges that had been laid. He was in Jordan up until 24 March 2009 when he arrived in Australia. He cannot understand how he was able to leave Jordan if there were pending charges.

    ·Court documents suggest that on 7 January 2010, the Jordanian Court trialled him in his absence. His family did not attend any Court days because they were not aware of the trial.

    ·The authorities re-initiated the charges against him and listed him as a [person] without ever informing him or his family members or even trying to locate him.

    ·Court documents indicate that the authorities had published information concerning the charges against him in a notice in a local newspaper but he never got a chance to read it.

    ·On 16 July 2017 upon discovering the charges against him, his family lodged an appeal. According to Jordanian law, if there is an appeal or objection to the charges, the police clearance will not show any charges during the appeal period. Accordingly the Jordanian police clearance which he had provided to the Department was true and correct at that time. 

1. The Tribunal discussed relevant documents in the course of the hearing and advised the applicant that it would consider appropriate weight. A number of the documents below clearly show that that the applicant had outstanding matters.

   ·     Document titled DECISION [NUMBER] , by the Jordanian Ministry of Justice Public Prosecution issued on 24 January 2008 relating to the applicant being accused of a number of offences including an indecent exposure offence concerning a [minor] . The Court found that there was no evidence to establish the offences against the applicant.

   ·     Document Titled JUDGMENT, from the Jordanian Ministry of Justice, the Magistrate Court in KARAK, issued on 10 March 2008, in relation to the applicant being a defendant in a libel matter and a plaintiff called Khaled and that the matter had been settled.

   ·     Technical Report from the Jordanian Public Security Directorate Forensic Science laboratory, dated 23 November 2005, relating to results of chemical test in four metal residuals detecting metal residual of .2 micrograms in the applicant’s left hand.

   ·     Document titled Attorney General, dated 3 April 2018, referring to the incident relating to the shooting.

   ·     Document titled TO WHOM IT MAY CONCERN, dated 16 July 2017 by the Jordanian Security Directorate Police Court referring to the dismissal of the applicant and a hearing date on 13 August 2017.

   ·     Document titled DIRECTOR OF PERSONNEL AFFAIRS, dated 16 February 2010, the Jordanian Public Security Directorate referring to the dismissal of the applicant and orders of the court on 7 February 2010 including a term of imprisonment.

   ·     Document titled VERDICT IN CRIMINAL[ CASE], dated 7 January 2010, by the Jordanian Directorate of Public Security referring to the [dismissal of the applicant].

   ·     Document titled Public Security Directorate, residency and Borders Department dated 11 July 2018, referring to the departure of the applicant from Jordan on 23 March 2009.

   ·     Document titled the President: Judge Mr Ahmad Byadah, issued on 4 December 2008, referring to an agreement subsequent to reconciliation between two parties, the accused KHALID and the victim AHMER (the applicant) who dropped the complaint and that the Court had decided to drop the complaint. The document however notes that the accused did not prove that the victim had caused him harm and found AHMER to be innocent. The document further notes that the accused was found guilty and was sentenced to imprisonment for one year.

   ·     Document from the Jordanian Ministry of Justice, prosecutors decision, dated 18 February 2008, relating to the investigation of an assault incident in December 2007 concerning [who] is noted to have withdrawn the [accusation] .

   ·     Non-conviction certificate, issued by the Jordanian Ministry of Justice, dated 3 February 2009.

   ·     Document titled to whom it may concern, dated 17 April 2018, from the Jordanian Ministry of Justice, Zarqa Court of first instance.

2. In relation to the document titled General Director of Criminal Records dated 2 February 2009 noting that investigations were still pending in relation to a matter (the shooting incident) and in accordance with s.359AA, the Tribunal noted that the document suggests that the applicant knew that the matter was pending and therefore he should have disclosed the ongoing investigation.  He said the Department obtained the document which is confidential between the Court and the forensic investigators.  He said he does not know about “this document”.  He said it was shown to him by the Department.  He said the Court provided the document secretly.  He said when he left Jordan he did not have information about any pending investigations.  He said when he resigned from the police service, they did not tell him about any pending investigations so he was released from duty.  The applicant stated that when he left Jordan, he did not have any information about any pending proceedings and if there had been any ongoing investigations or proceedings, he would have been unable to resign from his police work.

3. On 21 September 2018, the Tribunal requested verification and examination of documents and on 18 November 2018, the Tribunal received a response. 

4. On 21 November 2018, the Tribunal sent to the applicant a s.359A advising him of the outcome.  In summary, the investigations revealed that although the applicant provided a number of genuine documents, many of those documents have been fraudulently obtained. The investigations indicated that there are a number of pending matters against the applicant in Jordan and that was the case when he applied for the visa.  There was also information that he had sold weapons to a “terrorist group in Jordan” presenting a security issue and that, in some cases persons involved continued to change their evidence.

5. In the course of the hearing on 5 December 2018, the Tribunal discussed with the applicant the outcome of the document examination.  In relation to the PSD forensic technical report 23 November 2005, the applicant essentially said that the report supports his version in that it shows that he did not touch the weapon. In relation to other documents, the applicant stated that when he left Jordan, he was 100% certain that the cases had been finalised. He said, when he was in Jordan he was a police officer and mostly worked in prisons. He said he was never in places or had any connections which would have enabled him to obtain such documents.  He denied ever selling any weapons.

   SUMMARY OF EVIDENCE

6. The Tribunal is not intending to confuse or take into account irrelevant consideration namely, the applicant’s conduct in Australia. The Tribunal is mindful that the applicant’s visa was cancelled on the basis of the provision of incorrect information about outstanding matters in Jordan not in Australia. However, his conduct in Australia is relevant to the discretionary considerations, particularly the assessment of his current circumstances.  Moreover, there is adverse information contained in the Departmental file relating to the applicant and the Tribunal considered it appropriate and in order to comply with procedural fairness requirements, to engage with the applicant about those claimed allegations, particularly as he had put evidence before the Tribunal about those allegations.   

7. In light of the Tribunal’s concerns outlined above and on balance of the evidence, the Tribunal concludes that the applicant is not credible and that he has been untruthful about significant matters. The Tribunal conducted three hearings in this matter and sent documents for examination. The Tribunal gives significant weight to the outcome of the document examination which indicates that the applicant has provided documents some of which are authentic however they have been fraudulently obtained. The investigations have revealed that there are pending matters against the applicant in Jordan and that they were pending when he applied for the visa. The investigations have revealed that the document titled Ministry of Justice and Non-conviction certificate of 8 October 2007 ([Ref.]) is fraudulently obtained and that the authorities have confirmed that it is not recorded in the system. The authorities have confirmed that the applicant could not have obtained such a document from the authorities because of his criminal record, namely the pending Court case. In relation to the document titled Jordanian police clearance second and 3 February 2009 (document number the investigations revealed that the document has been fraudulently obtained and/or certified and that as a result of the number of pending court matters against the applicant, he could not have obtained a penal certificate from the Jordanian authorities unless all pending matters were finalised.  The Tribunal notes that the investigations also revealed that the document [being] a Police Clearance dated 2/2/2009 referring to ongoing investigations relating to the matter of Adel was also fraudulently obtained but this was not provided by the applicant.  The Tribunal has not used this document in an adverse manner to the applicant but this means that the Tribunal cannot be confident that documents contain accurate information.

8. The Tribunal gives weight to the Departmental integrity checks which revealed that the Non-Criminal Record Certificate [number]  is not recorded with the Jordanian authorities and that the Certificate is either counterfeit or had been fraudulently obtained.  The Tribunal is mindful that the applicant provided this document in support of the citizenship application which is not directly relevant to the issues of s.101 and s.103, however the integrity checks confirm that the applicant as far as the Jordanian authorities were concerned, was wanted by the authorities as at 20 July 2017, providing persuasive evidence that there were outstanding matters such as the shooting/forearm incident in 2005 relating to Adel, which the applicant did not disclose.

9. In any event and on his own admission, the applicant has confirmed and provided documents in support that there are pending charges against him but he claims that he did not know. The Tribunal has credibility concerns about the applicant and has explained its reasons. On balance of the evidence and for the adverse credibility finding, the Tribunal does not accept that the applicant did not know when he lodged the application for the visa that there were still pending investigations.

10. In consideration of the evidence as a whole, the Tribunal is satisfied that when the applicant lodged the application for a spouse visa subclass 309 on 27 September 2007, he did provide incorrect information in relation to question 81 of Form 47SP when he responded “No” to the question “Have you, or any other person included in this application, ever been charged with any offence that is currently awaiting legal action?”.

11. Moreover, the Tribunal finds on the evidence that the applicant provided incorrect answers the Form 80 – Personal particulars for character assessment.

12. At question 29 of the Form 80 which asks:

    ·    (e) Are you, or any person included in this application, aware of any proceedings pending against you overseas or in Australia for an offence, including proceedings by way of appeal or review?, the applicant responded “No”.

    ·    (g) Have you, or any other person included in this application, ever been charged with any offence overseas or in Australia that is currently awaiting legal action?, The applicant responded “No”.

13. Furthermore, the Tribunal is satisfied that on 22 February 2009, when he signed a Statutory Declaration, the applicant provided false and incorrect information in stating:

    ·I have not been charged with any offence that is incomplete or awaiting legal action, nor am I aware of any investigation into my affairs which has the potential to lead to such charges;

    ·to the best of my knowledge I do not have any matters which are either unresolved or in which I have been, or am involved, that would bring into question whether or not I pass the character test as defined at section 501 of the Migration Act 1958.

14. The Tribunal has no other details relating to the allegation that the applicant has sold weapons and accordingly the Tribunal has decided not to use this information in any adverse manner to the applicant.

15. In reaching those findings, the Tribunal has given regard to the technical report (gun powder residual test) completed by forensic science laboratory under the Jordanian public Security directorate which was produced on 23 November 2005. The Tribunal is not an expert in reading such reports. The Tribunal has however noted that there was a degree of metal residual detected but it is plausible that this was within the normal range.  The Tribunal’s task is not to determine the applicant’s guilt or innocence in relation to the shooting/firearm incident. The Tribunal is assessing whether the applicant had provided incorrect information or bogus documents when he applied for a partner visa. The evidence before the Tribunal indicates that there are unresolved matters concerning the applicant in Jordan and his claims that there were none amount to providing incorrect information in the relevant parts of the application and supporting declarations. The applicant has claimed that he would not have been able to depart Jordan or be released from the police service if there were any pending matters.  The Tribunal can only speculate but considering the totality of the evidence, the Tribunal is not satisfied that those aspects mean that there were no pending investigations.

16. There are a number of statements and references from various individuals in support of the applicant. Two witnesses gave evidence in the course of the hearing and spoke highly of the applicant’s character. In relation to Mr Rahal, a witness, there were minor inconsistencies in relation to his oral evidence and statutory declaration but the Tribunal has decided not to draw any adverse inferences on the basis of those inconsistencies.  The Tribunal has given weight to the statements and evidence of the witnesses who believe that the applicant is a good person and the Tribunal has no reason to question the authenticity of the beliefs held by those individuals. The Tribunal was particularly impressed by one of the witnesses, Ms Hammoud who has known the applicant since 2014. She gave evidence that she was aware of the [allegations]. However, on balance, those supportive material do not overcome the Tribunal’s concerns.

17. In conclusion and for those reasons, the Tribunal finds that there was non-compliance with s.101 and s.103 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

18. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

19. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The Tribunal has carefully considered the responses, submissions and supporting materials. Those are discussed in the relevant parts of the Decision.

20. The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

    ·     the correct information

21. When the applicant applied for the partner visa, he responded to relevant questions the answers to which are incorrect. He provided incorrect information in relation to question 81 of Form 47SP when he responded “No” to the question “Have you, or any other person included in this application, ever been charged with any offence that is currently awaiting legal action?”. He provided incorrect answers inthe Form 80 – Personal particulars for character assessment. At question 29 of the Form 80 which asks:

    ·    (e) Are you, or any person included in this application, aware of any proceedings pending against you overseas or in Australia for an offence, including proceedings by way of appeal or review?, the applicant responded “No”.

    ·    (g) Have you, or any other person included in this application, ever been charged with any offence overseas or in Australia that is currently awaiting legal action?, The applicant responded “No”.

22. The applicant signed a Statutory Declaration in which he provided false incorrect information when he declared that:

    ·I have not been charged with any offence that is incomplete or awaiting legal action, nor am I aware of any investigation into my affairs which has the potential to lead to such charges;

    ·to the best of my knowledge I do not have any matters which are either unresolved or in which I have been, or am involved, that would bring into question whether or not I pass the character test as defined at section 501 of the Migration Act 1958.

23. The evidence before the Tribunal and the Tribunal has found that the applicant was aware of the firearm charges brought against him on 21 April 2008 and that he was aware that those charges were pending at the time he provided the statutory declaration and the police clearance certificate of February 2009.

24. The Tribunal gives significant weight to this consideration in deciding that the visa should be cancelled.

    ·     the content of the genuine document (if any)

25. The Tribunal referred documents for further assessment and investigation. The investigations have revealed that although the applicant provided a number of genuine documents, many of those documents have been fraudulently obtained. The investigations indicated that there pending matters against the applicant in Jordan and that was the case when he applied for the visa. 

26. The Tribunal gives significant weight to this consideration in deciding that the visa should be cancelled.

    ·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

27. In order to succeed in being granted the visa, the applicant had to satisfy the relevant criteria, including ones relating to character. He provided a non-conviction certificate dated 8 October 2007 which was fraudulently obtained. He provided a police clearance certificate which was fraudulently obtained. The fact that he did not disclose the pending investigations meant that he satisfied the criteria based on incorrect information.

28. The Tribunal is satisfied that the applicant was granted the partner visa based on, wholly or partly, incorrect information and fraudulently obtained documents.  The Tribunal gives significant weight to this consideration in deciding that the visa should be cancelled.

    ·     the circumstances in which the non-compliance occurred

29. The applicant provided incorrect information in the application for a partner visa and he was granted the visa on that basis of meeting the relevant criterion.  The Tribunal gives significant weight to this consideration in deciding that the visa should be cancelled.

    ·     the present circumstances of the visa holder

30. The applicant was divorced in 2014 and although the former spouse had indicated that she wants to reconcile with the applicant, for the stated reasons the Tribunal is not satisfied that there is genuine potential for reconciliation with the former partner. The applicant has a son who was born on 19 December 2007. The applicant’s former spouse has full custody of the child and the applicant pays child support. The applicant has four step-children, one of whom had made serious allegations against him which she later withdrew.

31. The Tribunal asked the applicant about his son. The applicant denied the claim that he has been reported to the Department of child protection. The Tribunal asked him if he sees his son and he stated he does not due to orders of the Family Court. The applicant stated that the Court orders were made by consent. He stated that his former wife has made him suffer in Australia on a daily basis and he consented because he did not want any more problems.

32. The Tribunal is satisfied that the totality of the evidence indicates that the applicant does not have a continuing relationship with his former wife, his son or his step-children. The evidence before the Tribunal indicates that there has been a number of violence restraining orders placed on the applicant relating to a number of incidents. In the course of the hearing the applicant attempted to underestimate the significance of those orders.  In the Tribunal’s opinion, failing to recognise the gravity and seriousness of the situation. 

33. Witnesses gave evidence to support the applicant.  The applicant has provided a number of references from various individuals who support him. The Tribunal has given regard to the following:

    ·Statutory Declaration of Christopher James Goudge, dated 3 September 2018, amongst other things, referring to the applicant being hard-working, helpful and having good morals.

    ·Statutory Declaration of Selman Al-Alyawy, dated 22 August 2018, amongst other things, referring to the applicant being adored by the declarant’s children, being well respected, and humble. Included in this Statutory Declaration, the declarant’s wife and daughter also referred to the applicant in a positive manner.

    ·Statutory Declaration of Rima Hammoud, dated 7 September 2018, amongst other things, referring to the applicant being honourable, honest, generous, community minded, and playing a positive role with her teenage children who admire and respect the applicant.

    ·Statutory Declaration of Taghrid, dated 31 August 2018, amongst other things, referring to the applicant being kind, helpful and to the children adoring the applicant.

    ·Statutory Declaration of Mohammad Kahal, dated 30^th August 2018, amongst other things, referring to the applicant being helpful, generous and respectable.

    ·Statement of Sheree Aboudi, dated 27 August 2018, referring amongst other things, to the applicant being compassionate, empathic, respectful, of impeccable character, and becoming a significant member of her family

    ·Statutory Declaration of Nahed Mekhaid, dated 3 September 2018, amongst other things, referring to the applicant being respectful, reliable, and helpful.

    ·Statutory Declaration of Mahmoud Rahal, dated 3 September 2018, amongst other things, referring to the applicant being respectful, loving, honourable, and an important member of the family.

1. The Tribunal accepts that the applicant has friends and acquaintances who support him and think highly of him and the Tribunal has given favourable weight to that evidence.

2. The totality of the evidence however particularly the applicant’s relationship with his immediate family weighs against him. The Tribunal is satisfied that the applicant has had a problematic relationship with his former spouse for many years which led to [serious] consequences and allegations being made.

3. The Tribunal has accepted that in relation to the step-daughter, the relevant authorities have decided to drop the charges and it is not for the Tribunal to question the reasons. However, the allegations suggest a relationship between the applicant and members of his family that is problematic to say the least. It is not standard for people in loving and caring relationships to make serious allegations against each other.

   ·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

4. The applicant responded to the notice of intention to consider cancellation. He has however continued to assert that he did not provide incorrect information when it is obvious that he did.

5. The Tribunal gives this aspect weight in deciding that the visa should be cancelled.

   ·     any other instances of non-compliance by the visa holder known to the Minister

6. When the applicant lodged the citizenship applications on 7 June 2013 and 15 May 2015, he made false declarations. He provided a Jordanian Ministry of Justice Non-Criminal Record Certificate [Number] which turned out to be either counterfeit or had been fraudulently obtained.  However, as those matters relate to the citizenship applications, provided under the Citizenship Act 2007 not the Migration Act 1958, the Tribunal gives this aspect no weight.

   ·     the time that has elapsed since the non-compliance

7. The original non-compliance dates to the time when the applicant applied for the Partner visa and when he made the statutory declaration on 22 February 2009.

8. Although this is a substantial period of time, the fact that the applicant has continued to make incorrect claims means that the Tribunal gives limited weight to the time that has elapsed since the non-compliance.

   ·     any breaches of the law since the non-compliance and the seriousness of those breaches

9. The applicant has been charged with [an offence] against his step-daughter. She is now claiming that those accusations were false. The trial was vacated on 10 April 2015 and the decision record notes that the state prosecutor indicated:

   In order to secure convictions, the state would have had to prove the allegations beyond a reasonable doubt. While there was evidence from a number of witnesses to substantiate the allegations. State prosecutors came to the view that a jury could not be satisfied to that high standard of proof… The decision not to proceed to trial with the charges did not reflect that Mr Alshamaileh was innocent of the charges or that the allegations were unfounded.

10. It is not the Tribunal’s task to critically evaluate the reasons or comment on the decision of the authority charged with the task of prosecuting.

11. The step-daughter has given evidence before the Tribunal and provided documents that she has [health] issues. The Tribunal is uncertain about the extent of the [issues] . What is evident however is that the step-daughter is capable of providing entirely inconsistent versions of events and consequently the Tribunal gives her evidence limited weight. The Tribunal accepts that the applicant has not been convicted of those charges.

    ·     any contribution made by the holder to the community.

12. The applicant has claimed that he has been a law-abiding citizen in Australia. In submissions it was noted that the applicant has eight character references from community members.

100.   The Tribunal has given regard to the character references and that the applicant has been a law-abiding citizen.  Being a law-abiding citizen is a basic standard of conduct and the Tribunal does not consider this to mean that the visa should not be cancelled.

101.   On the contrary, the Tribunal is satisfied that the applicant’s contribution to the Australian community has been negative in light of this series of restraining violence orders.

·Other factors

102.   While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

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

103.   If the applicant does not to leave Australia voluntarily, he could be detained and deported. The applicant would also have difficulties obtaining any further Australian visas.

104.   The Tribunal is of the view that these are intended consequences of the legislation, and in his circumstances, they do not mean that the visa should not be cancelled.

·whether there would be consequential cancellations under s.140

105.   There is no evidence of any consequential cancellation.

·whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.   

106.   The applicant has a son who is almost 11 years old.  He has 4 step-children aged 14, 17,18 and 25.  The  [charges] relate to the oldest step-child.

107.   As a signatory to the Convention on the Rights of the Child (CROC), Australia has an obligation concerning the applicant’s son and two step-children under 18.  The CROC applies to children under 18 years of age.  By being a signatory, Australia has agreed to act in a manner consistent with the Convention, recognising the best interest of the chid.

108.   The CROC sets out the rights of children in 54 Articles and two Optional Protocols. It spells out the basic human rights that children everywhere have: the right to survival, to develop to the fullest, to protection from harmful influences, protection against abuse and exploitation, to participate fully in family, cultural and social life. The four core principles of the Convention are non-discrimination, devotion to the best interests of the child, the right to life, survival and development, and respect for the views of the child. The CROC sets out standards in relation to health care, education, legal and civil rights.

109.   Article 3 of the CROC states:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

110.   The Tribunal needs to consider how the best interests of the applicant’s child and step-children would be affected by a decision to cancel the applicant’s visa. It is reasonable to assume that it is in the best interests of children to be with their parents, however that assumption must be considered in the context and nature of the relationship that the applicant has with his own son and step-children.

111.   The applicant pays child support and its absence would impact his former spouse, child and step-children financially.  The Tribunal has given some weight in favour of the applicant.

112.   For the stated reasons above, the Tribunal has concluded that the applicant does not have functional and ongoing relationship with his immediate family. He has not seen his son for many years and his former spouse has custody of the son. The eldest step-child has made  [allegations] against him. The Tribunal does not wish to sound harsh or unkind, however, the Tribunal has serious doubts about the applicant’s capacity to be a role model for the children and the Tribunal is not satisfied that it is in their best interests that his visa is not cancelled. In these circumstances, the Tribunal is not satisfied that Australia would be in breach of the CROC in case of the cancellation.

113.   The applicant has not made any [claims] but the material before the Tribunal, particularly that he is [details deleted] could give rise to [new] claims, although the Tribunal is not suggesting that those claims would lead to a [finding]. On the evidence before it however, the Tribunal is not satisfied that there is a real risk or a real chance of serious or significant harm as defined by the Act.

114.   On the evidence before it, the Tribunal is satisfied that in case of the cancellation of the applicant’s visa, Australia would not be in breach of its international obligations and the Tribunal gives this aspect weight not favourable to the applicant.

·any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.

115.   The applicant has claimed that he has had a challenging time in Australia. He stated in his statutory declaration of 23 April 2018 that he has suffered greatly as a result of the false allegations that were made against him by his former wife and the step-daughter. He stated that he was falsely imprisoned and he has lost parental access and many friends as a result.

116.   It is correct that the applicant has faced charges which have subsequently been discontinued. The Tribunal acknowledges that this would have been a difficult time for the applicant but the Tribunal does not consider the consequences to amount to hardship to mean that the visa should not be cancelled. The applicant has been estranged from his former partner since at least 2014 when they divorced, but probably, for many years earlier. In the Tribunal’s view and for the stated reasons, he does not have close and continuing relationship with his son or his step-children, or his former partner. As discussed above, her statutory declaration to the Tribunal claiming an intention to reconcile with the applicant is of limited assistance given the circumstances.

117.   On balance, the Tribunal is satisfied that there is no degree of hardship in this case to mean that the visa should not be cancelled.

118.   The Tribunal has carefully considered the applicant’s circumstances individually and cumulatively.  The Tribunal is satisfied that on balance the correct and preferable decision is that the applicant’s visa should be cancelled.

119.   The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

DECISION

120.   The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.

Antoinette Younes

Senior Member

ATTACHMENT – Migration Act 1958 (extracts)

5Interpretation

(1)In this Act, unless the contrary intention appears:

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a)      purports to have been, but was not, issued in respect of the person; or

(b)     is counterfeit or has been altered by a person who does not have authority to do so; or

(c)      was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation

In this Subdivision:

application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

Note:Bogus document is defined in subsection 5(1).

98Completion of visa application

A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

99Information is answer

Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

100Incorrect answers

For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

101Visa applications to be correct

A non‑citizen must fill in or complete his or her application form in such a way that:

(a)all questions on it are answered; and

(b)no incorrect answers are given or provided.

103Bogus documents not to be given etc.

A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

107Notice of incorrect applications

(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

(a)      giving particulars of the possible non‑compliance; and

(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

(i)if the holder disputes that there was non‑compliance:

(A)shows that there was compliance; and

(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:

(A)give reasons for the non‑compliance; and

(B)shows cause why the visa should not be cancelled; and

(c)      stating that the Minister will consider cancelling the visa:

(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

(ii)if the holder gives the Minister a written response within that period—when the response is given; or

(iii)otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and

(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

(f)      requiring the holder:

(i)to tell the Minister the address at which the holder is living; and

(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:

(a)      in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

(b)     otherwise—14 days.

(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

(a)      visas of a stated class; or

(b)     visa holders in stated circumstances; or

(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance

The Minister is to:

(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect

(1)The Minister, after:

(a)      deciding under section 108 that there was non‑compliance by the holder of a visa; and

(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

(c)      having regard to any prescribed circumstances;

may cancel the visa.

(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.