Ashraf and Minister for Immigration and Border Protection (Migration)
[2017] AATA 331
•14 March 2017
Ashraf and Minister for Immigration and Border Protection (Migration) [2017] AATA 331 (14 March 2017)
Division
GENERAL DIVISION
File Number
2017/0137
Re
Muhammad Ashraf
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member A. Nikolic AM CSC
Date 14 March 2017 Place Melbourne The Tribunal affirms the decision under review.
[sgd]....................................................................
Senior Member A. Nikolic AM CSC
MIGRATION - visa refusal on character grounds – risk of engaging in criminal conduct if allowed to remain in Australia – whether discretion to refuse visa enlivened – where applicant convicted of multiple offences – where applicant made misleading statements to immigration authorities – where dependant may suffer hardship if visa application refused – need to protect Australian community from criminal or immigration misconduct – expectations of Australian community not met – decision affirmed
Legislation
Migration Act 1958 (Cth)
Crimes Act 1958 (Vic)
Cases
Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Re Tran and Ministerfor Immigration and Border Protection [2016] AATA 413
Re Jill Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Secondary Materials
Department of Immigration and Border Protection (Cth), Ministerial Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA; 22 December 2014
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
14 March 2017
INTRODUCTION
Mr Muhammad Ashraf is a citizen of Pakistan who arrived in Australia on 14 April 2007 under a Student (Temporary) (Class TU) Visa (Student Visa). He has not departed Australia since and during the intervening years has not always engaged with the visa application process in a timely or complete way. This has brought him into regular contact with the Department of Immigration and Border Protection (the Department), and the decision review processes contained in the Migration Act1958 (Cth) (the Act).
Mr Ashraf has lodged four Student Visas applications with the Department. The first two were approved and the last two refused. His appeals to the then Migration Review Tribunal (MRT) and to the Minister in relation to the refusals were unsuccessful.
On 20 December 2013 Mr Ashraf married an Australian citizen and subsequently lodged an application for a Partner (Temporary) (Class UK) Visa (Partner Visa). This application was refused on 14 April 2014 by a delegate of the Minister, because Mr Ashraf had not applied within 28 days of his last substantive visa expiring. Mr Ashraf sought a review of this decision by the MRT, which found that there were compelling reasons to waive the 28 day visa expiration requirement - namely new evidence about the mental health of his wife and her reliance on him for support. The MRT remitted his Partner Visa application to the Department.
On 28 June 2016 Mr Ashraf was issued with a Notice of Intention to Consider Refusal of his Partner Visa application, because the Department held information about his criminal history suggesting he may not pass the character test. Mr Ashraf responded to the Notice and provided additional documents on 25 July 2016 via his lawyer. After considering his response, a delegate of the Minister refused the application on 16 December 2016. The delegate concluded that the discretion to refuse the visa was enlivened because Mr Ashraf did not pass the character test as defined in section 501(6)(d)(i) of the Act, as there was a risk he would engage in criminal conduct if allowed to remain in Australia. This decision had the effect of cancelling the Bridging Visa Mr Ashraf was on while waiting for a decision on his Partner Visa, and he was taken into immigration detention on 21 December 2016.
Mr Ashraf has asked the Tribunal to review the Department’s decision to refuse his Partner Visa application on character grounds.
ISSUES
The issues for consideration by the Tribunal are:
(a)whether Mr Ashraf passes the character test as defined under the Act; and
(b)if not, whether his visa application should be refused, taking into account the relevant considerations in Ministerial Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction).
KEY ASPECTS OF MR ASHRAF’S STUDY AND VISA HISTORY IN AUSTRALIA
After arriving in Australia in 2007 Mr Ashraf completed a six-month English language course and part of a Diploma in Information Technology, but withdrew before completion. He then undertook a hairdressing course at the Sheila Baxter Institute, again withdrawing before completion. Mr Ashraf stated at the hearing that he withdrew from the courses because they were not enjoyable, aspects of the training were too hard, and he realised that he wasn’t suited to a career in hairdressing.
Although Mr Ashraf successfully renewed the initial Student Visa granted to him on entry to Australia, allowing him to remain legally until 18 September 2010, this visa expired before he applied for a further renewal. This meant Mr Ashraf was an unlawful non-citizen within the meaning of Section 14 of the Act from 18 September 2010 until his application for a third Student Visa was received by the Department on 28 October 2010.
Mr Ashraf’s third Student Visa application was to study a Certificate III in Low Rise Structural Framing. This application was refused by a delegate of the Minister on 23 November 2010, because it was lodged more than 28 days after the expiry of his last substantive visa. A Bridging Visa was granted while Mr Ashraf appealed the refusal of his Student Visa to the MRT. His appeal and request for Ministerial intervention were unsuccessful. Mr Ashraf was instead granted a three month Tourist Visa on 22 March 2012, which expired on 22 June 2012.
Mr Ashraf lodged a fourth Student Visa application on 6 June 2012, seeking to study a Diploma of Management. His application was again refused by the Department on 16 November 2012. His appeal to the MRT and request for Ministerial intervention were also unsuccessful, with the MRT noting in the reasons for its decision:
There is no evidence before the Tribunal that Mr Ashraf is currently enrolled in or the subject of a current offer of enrolment in any course of study…
Mr Ashraf does not contest the Department’s submission that he was an unlawful non‑citizen for a second time within the meaning of Section 14 of the Act, from 20 December 2013 to 30 December 2013 inclusive.
Following his marriage on 20 December 2013, Mr Ashraf and his wife met with officials of the Department on 31 December 2013, to discuss the refusal of his fourth Student Visa application. This meeting resulted in Mr Ashraf lodging an application for a Partner Visa with his wife as sponsor. He was granted a Bridging Visa while his Partner Visa application was considered.
Mr Ashraf’s wife has provided a statement dated 9 February 2017, declaring that the decision to marry arose in the context of Mr Ashraf’s immigration problems, where they ‘only had a short time before he would have to leave Australia’ and she ‘did not want him to go offshore to apply.’
LEGISLATIVE FRAMEWORK
Section 501(1) of the Act gives the Minister or their delegate the power to refuse to grant a visa, because the applicant is unable to satisfy the Minister that the applicant is able to pass the character test.
The term character test is discussed at section 501(6) of the Act and refers to a range of character matters that the Minister or their delegate may have regard to in deciding whether to grant, refuse or cancel a visa. A person is automatically deemed not to pass the character test in a number of circumstances, including where they have a substantial criminal record within the meaning of section 501(7). It is accepted by the Department that Mr Ashraf does not have a substantial criminal record and the Minister’s delegate has instead refused Mr Ashraf’s visa application on the basis of section 501(6)(d)(i), which states a person does not pass the character test if:
(d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia; …
The Tribunal must therefore decide whether Mr Ashraf fails the character test on the basis of section 501(6)(d)(i) of the Act. If Mr Ashraf fails the character test, the Tribunal must then determine whether the discretion to refuse the visa should be exercised.
DIRECTION NO. 65
Guidance in exercising the discretion in section 501(1) of the Act can be found in the Direction. Section 499(2A) of the Act mandates that the Tribunal must comply with the Minister’s Direction (see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, Katz J).
Paragraph 6.1 of the Direction states, in part:
6.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2) Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision‑maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
Paragraph 6.2 sets out General Guidance relating to the Government’s intent:
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.
The principles referred to in the General Guidance and reproduced below, constitute a framework within which decision-makers apply the considerations in Parts A, B, or C of the Direction:
(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 a 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.
Paragraph 7.1(a) of the Direction states that a decision-maker ‘must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non‑citizen will forfeit the privilege of being granted, or of continuing to hold, a visa.’
Paragraph 8(1) of the Direction explains that the considerations in Part A and Part C for existing visa holders and in Part B for visa applicants are different:
... Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa applicant will be approved.
Mr Ashraf held a Bridging Visa during the Department’s consideration of his Partner Visa application, so Part B is applicable. The primary considerations under Part B are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Other considerations that must be taken into account, where relevant, include (but are not limited to):
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims; and
(d)Impact on Australian business interests.
Paragraph 8(4) of the Direction states that primary considerations should generally be given more weight than the other considerations. Paragraph 8(5) states that one or more primary considerations may outweigh other primary considerations.
CONSIDERATION
Does Mr Ashraf Pass the Character Test?
The Tribunal must consider whether, pursuant to section 501(6)(d)(1), Mr Ashraf passes the character test in that, if allowed to remain in Australia, there is a risk that he would engage in criminal conduct.
In determining whether a person passes the character test, the Tribunal notes the comments of Lander J in the Federal Court’s decision in Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65 at [105]:
The definition of a person passing the character test in s 501(6) shows that Parliament intended that persons who have been convicted of relatively serious crime; associate with criminals; have a history including an immediate history of criminal conduct or general conduct indicating bad character; are a significant risk of engaging in criminal conduct or undesirable conduct, should not be permitted to travel to or remain in Australia. Shortly put, persons who have committed or are likely to commit criminal or other like conduct should not be permitted to travel to or remain in Australia. Because the purpose is to exclude those persons, the matters that are relevant to the exercise of the Minister’s discretion will include any fact or circumstance which would suggest that a person of otherwise bad character (as it is defined in the Act) should be allowed to travel to or remain in Australia.
The Tribunal further notes the Federal Court’s elaboration of what might constitute good character in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 at 324:
The concept of "good character" in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the Applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an Applicant for a short-term entry permit may not justify the conclusion that he is "not of good character" within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry ...
EVIDENCE
Mr Ashraf’s offences and conduct in Australia
A Police Clearance Certificate from Pakistan dated 10 March 2015 confirms there is ‘nothing adverse’ against Mr Ashraf up to the time he departed for Australia in 2007. Unfortunately, he does not have the same unblemished record since arrival in Australia.
A National Police Certificate dated 22 July 2016 lists Mr Ashraf’s convictions as set out below, with offences attracting imprisonment penalties noted in bold:
COURT
COURT DATE
OFFENCE
COURT RESULT
Melbourne County Court 28 Oct 2010 Exceed Prescribed Concentration 3 hours- Breath-Drive Vehicle Without conviction. Adjourned to be of good behaviour for 12 months. To pay $350 to charity. Melbourne Magistrates Court 31 May 2011 Fail to Answer Bail Granted With conviction, fined $400. Broadmeadows Magistrates Court 26 Apr 2012 Fail to Answer Bail Granted With conviction, fined an aggregate of $1,500 Broadmeadows Magistrates Court 26 Apr 2012 Drive Commercial Passenger Vehicle Without Driver Accreditation On each charge: with conviction, fined an aggregate of $1,500 Melbourne Magistrates Court
17 Aug 2012
Theft, Obtain Financial Deception (5 Charges), Obtain Property By Deception (2 Charges), Att. To Obtain Property By Deception (2 Charges), Unlawful assault
Convicted and a community correction order for 12 months perform 150 hours of community work.
Broadmeadows Magistrates Court
24 Sep 2013
Contravene Community Correction Order
Convicted & fined $1,000
Broadmeadows Magistrates Court
24 Sep 2013
Breach Re: 17/08/2012:
Theft; Obtain Financial Advantage By Deception (5 Charges); Obtain Property By Deception (2 Charges);
Att. To Obtain Property By Deception (2 Charges); Unlawful Assault.Aggregate 3 months imprisonment concurrent. Sentence is wholly suspended for 12 months.
Heidelberg Magistrates Court
20 Feb 2014
Drive Whilst Disqualified
3 months imprisonment concurrent. Sentence is wholly suspended for 18 months. Disqualified from driving for 6 months.
Melbourne Magistrates Court 17 March 2014 Operate Commercial Passenger Vehicle - Unlicenced With conviction, fined $2500. Licence cancelled and disqualified from driving for 12 months Melbourne Magistrates Court
17 Mar 2014
Drive Whilst Disqualified
4 months imprisonment concurrent. Sentence is wholly suspended for 24 months. Licence cancelled and disqualified from driving for 12 months.
The Tribunal notes that all of the imprisonment sentences were wholly suspended and that, with the suspension period on each having passed, Mr Ashraf has not spent any time in prison.
Mr Ashraf stated at the hearing that a number of these offences were because he didn’t understand Australia’s laws. Others occurred because he was young and drunk, making him do ‘idiot things.’ At the hearing Mr Ashraf was unable to recall much of the conduct that led to him being charged with five counts of Obtain Financial Advantage by Deception, claiming he was drunk. He was also unable to recall the specific circumstances of his conviction for Unlawful Assault, claiming he hadn’t assaulted anyone and only pleaded guilty to avoid further legal fees. This repeats a similar assertion made in his statement dated 10 February 2017:
I pleaded guilty because I had done what they accused me of doing except for the unlawful assault charge. I never hit anyone as far as I can recall. Nevertheless I decided to plead guilty.
Mr Ashraf gave evidence that the Unlawful Assault offence was connected with the Obtain Financial Advantage by Deception offence and that another person was involved but not charged. Beyond Mr Ashraf’s comments, there is no evidence before the Tribunal contextualising these convictions. This issue is further discussed later in these reasons.
At times during the hearing Mr Ashraf failed to address the questions he was asked in a direct and forthright way – particularly during cross-examination. The Tribunal found some of his responses about criminal convictions were contradictory and unreliable.
In addition to his criminal offending, Mr Ashraf admits to making false declarations in a number of visa applications, despite formally acknowledging on these forms that the provision of false or misleading information was a serious offence. His admission relating to immigration misconduct is contained in a statement dated 21 July 2016 as follows:
I did not declare my previous criminal history for the following reasons:
1. I did not want to let down my wife by exposing her to my past wrongdoings.
2. I was afraid my application would be refused if I did advise the Department of my police history…
...
This admission was explored at the hearing, with Mr Ashraf initially claiming he ‘didn’t understand’ the questions on the visa application form about character. He also claimed to be unfamiliar with Australian laws, believing that only ‘big crimes’ resulting in actual imprisonment had to be declared. Because his sentences of imprisonment were suspended, Mr Ashraf contended that they didn’t need to be declared in his visa applications. He similarly claimed to not understand the question regarding offences awaiting legal action. On another occasion during his oral evidence, Mr Ashraf said he did not read the form properly and simply ticked the ‘No’ boxes without checking the associated descriptors. After having it put to him that these explanations were inconsistent with his statement dated 21 July 2016, Mr Ashraf conceded he had intentionally failed to reveal his criminal history to immigration authorities and to his lawyer.
Mr Ashraf was taken through a number of his visa applications at the hearing, which were considered in conjunction with his National Police Certificate, to identify specific instances where false information had been provided to the Department and others:
(a)The Tribunal notes Mr Ashraf lodged his third Student Visa application on 28 October 2010. His National Police Certificate shows that on the same date he appeared in the Melbourne County Court to answer a charge of Exceed Prescribed Concentration of Alcohol. The Tribunal finds that at the time Mr Ashraf lodged this Student Visa application he intentionally failed to declare this charge in the application, despite knowing it was awaiting legal action.
(b)The fourth Student Visa application lodged by Mr Ashraf on 6 June 2012 contains a declaration that he had never been convicted of a crime or offence in any country. Mr Ashraf’s National Police Certificate shows a number of convictions in the 20 months prior to this application being lodged. The Tribunal finds that at the time Mr Ashraf lodged this visa application, he knew of these convictions but intentionally failed to declare them.
(c)The Partner Visa application lodged by Mr Ashraf on 30 January 2014 contains a declaration that he had never been convicted of a crime or offence in any country. Mr Ashraf’s National Police Certificate shows a number of additional convictions leading up to that application, most notably convictions in the Broadmeadows Magistrates Court three months earlier on 24 September 2013. The Tribunal finds that at the time Mr Ashraf lodged his Partner Visa application, he knew of numerous convictions dating back to 2011, but intentionally failed to declare them.
(d)It is noteworthy that information provided by Mr Ashraf’s lawyer to the Department on 27 March 2014, claiming that Mr Ashraf ‘has not engaged in any criminal activity,’ was false. At the hearing Mr Ashraf admitted to lying to his lawyer, which resulted in the false declaration to the Department.
The Tribunal found Mr Ashraf’s oral evidence about his immigration misconduct was not forthright and often contradictory. He submitted a number of reasons to explain this misconduct, which were at odds with the reasons contained in his previous statement dated 21 July 2016 – namely a fear that his application would be refused by the Department and his wife would be exposed to past wrongdoings.
Witness Evidence
The Tribunal heard evidence from Mr Ashraf, his father-in-law, brother-in law and wife, to the effect that Mr Ashraf was a good person who had made mistakes, but had now turned his life around and had no intention of re-offending.
Mr Ashraf’s written statement was tendered into evidence. His oral evidence at the hearing centred on his contention that he was a changed man following his marriage, with a new life and new responsibilities. On that basis, he submits there is no risk that he would engage in further criminal conduct if allowed to remain in Australia. He said the decision to marry was made in the context of his involuntary return to Pakistan and by marrying, ‘they couldn’t be kept apart.’ Mr Ashraf spoke of the maturing effects of caring for his wife and her parents. He said he was ashamed of his previous conduct, but had realised after their marriage that ‘the time to do bullshit activities has passed.’
In relation to his immigration problems, Mr Ashraf gave evidence that a number of the problems resulted from the actions of others, including a failure to be properly notified about the expiration of his Student Visa. Mr Ashraf agreed during cross-examination that his fourth Student Visa application was made despite not having a formal offer of training or certificate of enrolment from an educational institution, which was a mandatory visa requirement. He also agreed with the Department’s contention that his appeal to the MRT following refusal of this application was made for the purpose of remaining in Australia, despite knowing he did not meet the mandatory requirement. Mr Ashraf also agreed that his request for Ministerial intervention following the MRT’s refusal of his appeal was made as ‘a device to remain in Australia for a further period.’
In relation to his criminal history, Mr Ashraf said this was revealed to the Department when a police check had to be submitted after the initial refusal of his Partner Visa application, which the MRT remitted back to the Department on appeal. He agreed during cross-examination that he initially failed to tell his lawyer about his criminal record, causing his lawyer to unknowingly make a false declaration to the Department. Mr Ashraf agreed that he misrepresented his character information in his Partner Visa application, even after his lawyer had fully explained the requirements. Mr Ashraf also agreed with the Department’s contention that he had failed to tell the MRT about his criminal record when it considered his Partner Visa appeal on 16 February 2015, because he didn’t want an unfavourable outcome.
In relation to his current application, Mr Ashraf said that if his Partner Visa was approved, he aspired to complete a training course and to recommence work as a courier driver. If his visa application was unsuccessful, Mr Ashraf said he would return to Pakistan. When asked whether his wife would accompany him, he said she would like to but her decision was complicated by the need to care for her parents and her job. Mr Ashraf said that he worried about taking his wife to Pakistan, because ‘bad things’ happen there, citing ‘bombings in February’ that ‘make me scared.’ Mr Ashraf said if his wife had to accompany him to Pakistan, she would in effect be punished for his mistakes.
Mr Ashraf’s father-in-law provided a statement and supplementary statement, which were tendered into evidence. He gave oral evidence at the hearing about his poor health in recent years, having suffered heart problems requiring surgery and two strokes. He stated that his wife, son, daughter and Mr Ashraf all lived with him in the family home, providing considerable assistance. He said this assistance was welcome because he could not work and relied on Centrelink payments. He said his wife receives Carer Payment to look after him, but their son, daughter, and Mr Ashraf contribute financially and in practical ways like driving him to medical appointments. He expressed surprise at Mr Ashraf’s immigration problems, initially thinking his detention was the result of an administrative error. He only learned of Mr Ashraf’s convictions about a week before the hearing and ‘didn’t think too much of it’ because ‘everyone makes mistakes in their lives.’ He said he was aware of two offences: ‘one for speeding-drinking and the use of a credit card with mates.’
Mr Ashraf’s father-in-law said he approved of Mr Ashraf because he made his daughter ‘happier, better and more alive.’ He said his daughter had made good progress in recovering from serious mental health issues, which required extended hospitalisation in 2008. He said his daughter had recently gained fulltime employment that she enjoyed, and which had enhanced her self-confidence and circle of friends. He said he had not attended his daughter’s wedding to Mr Ashraf because he was busy working as a coach driver and only discovered the marriage on his return, which was hard to get over. But he got used to the idea and considered Mr Ashraf a ‘good bloke.’
Mr Ashraf’s father-in-law feared that if Mr Ashraf was returned to Pakistan, his daughter would be devastated and may return to ‘old ways’ from a decade ago – potentially leading to another attempt at self-harm. He said his daughter would find it difficult to move to Pakistan if Mr Ashraf’s application was unsuccessful, because of her parental support role, language difficulties, and fulltime work in Australia.
Mr Ashraf’s brother-in-law provided a written statement that was tendered into evidence. He gave evidence at the hearing that he lived in the family home with his parents, sister and Mr Ashraf, who he met four years ago. He said he was the only person to attend their registry-style wedding as a witness, and was happy that his sister had found somebody to be with and who contributed positively to her recovery from mental health issues. He said he was not aware of the seriousness of Mr Ashraf’s immigration problems until his detention, and thought this related to issues linked to driving offences. He said Mr Ashraf was a ‘good guy’ who worked hard and helped financially in the home and with daily living tasks. He considered Mr Ashraf a part of their family unit, but felt his sister could not accompany Mr Ashraf to Pakistan, because she needed to stay in Australia to help look after their parents. He also feared that his sister would experience a relapse in her mental illness if Mr Ashraf’s Partner Visa application was unsuccessful.
Mr Ashraf’s wife provided two written statements, which were tendered into evidence. She gave evidence at the hearing, describing a happy family life with her parents, brother and Mr Ashraf prior to his detention. She was justifiably proud of the fulltime work she had secured 10 months prior to the hearing, which gave her great satisfaction.
Mr Ashraf’s wife said her husband was trying to improve and be a better person. She agreed that the decision to marry on 20 December 2013 was taken in part to enable Mr Ashraf to lodge a Partner Visa application from Australia rather than after his unwilling return to Pakistan. This is consistent with her witness statement dated 9 February 2017:
We realised then that we could not be apart and decided to get married because it was what we wanted to do anyway although not in such circumstances. Only my brother attended our wedding ceremony. It was at such short notice and everyone was busy or away over the Christmas holidays. Nevertheless, I did not want him to go offshore to apply because I would not be able to stand the stress of being separated. (emphasis added)
She described the challenges of working fulltime, supporting her parents as they dealt with illness, and dealing with Mr Ashraf’s immigration issues. She said that since his detention, financial pressures had increased considerably, including in relation to repayments on a personal car loan that Mr Ashraf had previously contributed to. When questioned about her knowledge of Mr Ashraf’s offending, his wife said she accompanied him to his last two court appearances and was generally aware of his convictions, but did ‘not know all the details.’ When asked why Mr Ashraf’s convictions hadn’t been included in their Partner Visa application, she said they didn’t think it would be considered such a ‘high offence.’
Mr Ashraf’s wife stated she couldn’t permanently accompany Mr Ashraf if he returned to Pakistan, but could holiday there, although this was an undesirable outcome. She also expressed concern about language/cultural difficulties and a perceived lack of appropriate medical support if her mental health problems returned.
In response to questions about why she went ahead with the wedding knowing that an unfavourable decision would see Mr Ashraf returned to Pakistan, his wife said she hadn’t thought of it that way and always hoped the decision would be favourable. When pressed as to what her plan was for a negative outcome, she agreed to not fully considering the consequences at the time. The Tribunal notes that when Mr Ashraf and his wife chose to marry, his status as a visa applicant was such that there should have been no expectation that his Partner Visa application would be approved.
Mr Patrick Newton, a Psychologist, gave evidence at the hearing. His reports dated 5 February 2017 and 24 February 2017 were tendered into evidence. Mr Newton noted in his report and explained to the Tribunal his extensive experience in clinical and forensic psychology. Mr Newton said he had undertaken an assessment of Mr Ashraf’s wife, which included consideration of her medical history and other documents relating to current immigration difficulties.
Mr Newton reported that the symptoms experienced by Mr Ashraf’s wife are long-term, chronic, pre-date her relationship with Mr Ashraf by almost a decade, and ‘are sufficiently intense to meet DSM-5 criteria for an Adjustment Disorder with Anxiety.’ He considered that she was at ‘some risk of deterioration in her mental state if she should be subject to intense ongoing stress or if the separation from her husband should become permanent.’ Mr Newton assessed that her traits ‘leave her vulnerable to experiencing particularly intense reactions when her significant relationships come under threat and that her personal resources for coping with these challenges are fragile.’ Notwithstanding her previous mental health issues and the stress of her husband’s immigration difficulties, Mr Newton stated that Mr Ashraf’s wife ‘was lucid and coherent and there was no indication of any active psychosis.’ But Mr Newton also found her to be ‘a vulnerable woman who remains at risk for relapse to mental instability at times of high personal stress.’
Mr Newton said it ‘would be unwise…to place herself in a situation where access to mental health care was limited and particularly so if this were to occur in a context of elevated stress and diminished support.’ He considers that ‘in such circumstances her risk of relapse to mental instability (including psychosis) would be considerably elevated.’ He said that if she was to relocate to Pakistan, an issue that arose was the availability of mental health services. During cross-examination, however, Mr Newton agreed that his concern was not founded on any specific knowledge of the availability of mental health services in Pakistan. Mr Newton also agreed that the fulltime job secured by Mr Ashraf’s wife was very important in relation to her self-worth and constituted a significant protective factor to her mental health. The Tribunal accepts Mr Newton’s assessment that Mr Ashraf’s wife remains ‘at some risk of deterioration in her mental state,’ particularly if her husband’s Partner Visa is refused.
Mr Newton’s report detailing his psychological assessment of Mr Ashraf was tendered into evidence. Mr Newton said the consultation with Mr Ashraf had been undertaken for between 90-120 minutes at the Maribyrnong Immigration Detention Centre on 3 February 2017, but he did not have sufficient time to administer diagnostic tests, relying instead on the consultation and information in documents provided with the Request for Assessment by Ms R. Germov of Counsel, who represented Mr Ashraf at the hearing.
Mr Newton concludes in his report that ‘Mr Ashraf has developed symptoms of anxiety in response to the stress of immigration detention and the ongoing uncertainty about his visa, which are sufficiently severe to meet DSM-5 criteria for an Adjustment Disorder with Anxiety.’ Mr Newton notes that Mr Ashraf is ‘deeply concerned about his wife’s welfare and the potential consequences for his ability to care for her.’ He states that if allowed to remain in Australia, Mr Ashraf ‘would have the support of his wife, her extended family and a supportive group of friends,’ which would help mitigate his risk of recidivism.
In light of Mr Ashraf’s conviction for unlawful assault, Mr Newton assessed his risk for recidivism to violent crime, finding it was ‘Low’ and stating that ‘his attitudes, personality adjustment and personal circumstances all now act to reduce the risk of recidivism further.’ Mr Newton also assessed Mr Ashraf’s risk of general recidivism as ‘Low,’ with the only risk factor identified being his prior criminal history. He said factors that could increase that risk included the breakdown of his social networks or loss of employment.
During cross-examination Mr Newton agreed he had no context in relation to Mr Ashraf’s conviction for unlawful assault or his immigration misconduct. In response to the Department’s contention that Mr Ashraf had a ‘predisposition for dishonesty,’ Mr Newton accepted that the failure to disclose convictions and immigration misconduct was dishonest and may be an indicator of failing to do the right thing in the future. But Mr Newton said his assessment of Mr Ashraf had factored in a degree of protective non‑disclosure and the immigration misconduct would not have changed his recidivism assessment from ‘Low Risk.’
Consideration – Does Mr Ashraf Fail the Character Test?
The Tribunal has considered the many positive things that Mr Ashraf’s wife, father-in-law and brother-in-law have said about his valued contribution to their family unit, particularly in supporting his wife’s continued recovery from mental health issues. The Tribunal has also given regard to the statements tendered into evidence and the submissions by Mr Ashraf’s counsel regarding the nature of his offences and how the average Australian citizen would perceive them. But given the frequency of Mr Ashraf’s criminal conduct in Australia, coupled with his serious immigration misconduct and less-than-forthright oral evidence, the Tribunal considers this supports the Minister’s contention that Mr Ashraf does not pass the character test.
Having determined that Mr Ashraf does not pass the character test, the discretion to consider refusal of his Partner Visa application is enlivened, requiring the Tribunal to apply the considerations in Part B of the Direction to the specific circumstances of his case.
Protection of the Australian community from criminal or other serious conduct
Paragraph 11.1 of the Direction states:
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 a 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.
Paragraph 11.1.1 sets out factors to be considered in determining the nature and seriousness of a non-citizen’s offending or other serious conduct to date. In considering Mr Ashraf’s conduct, the following extracts from paragraph 1.11.1 are relevant:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and / or sexual crimes are viewed seriously.
…
(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;
(h)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
...
The nature and seriousness of the conduct
The Department accepts that Mr Ashraf does not have a substantial criminal record within the meaning of subsection 501(7) of the Act, relying instead on section 501(6)(d)(i) that Mr Ashraf would engage in criminal conduct if allowed to remain in Australia.
The frequency of Mr Ashraf’s offending, including convictions for unlawful assault, theft and deceptive conduct is clearly inconsistent with the Australian Values Statement he signed at paragraph 87 of his Partner Visa application to the effect that:
I undertake to respect these values of Australian society during my stay in Australia and to obey the laws of Australia.
The conviction for unlawful assault is noteworthy, including for Mr Ashraf’s lack of recall about this conviction at the hearing. In response to questions, Mr Ashraf said he couldn’t recall the specific circumstances of the assault, claiming to have been informed by an unnamed lawyer that ‘in Australia just looking at someone could be assault.’ On a number of occasions he sought to contradict the basis on which the Melbourne Magistrates Court had found him guilty of this offence on 17 August 2012, claiming to have pleaded guilty just to avoid incurring further legal fees.
As noted by the Federal Court of Australia (Branson, Lindgren and Emmett JJ) in Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at 244:
... it is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal..
This reasoning has been applied in the context of convictions when considering the character test and discretion under section 501 of the Act. As explained by Deputy President Forgie in Re Tran and Minister for Immigration and Border Protection [2016] AATA 413 at [38]:
… when the Minister relies on a person’s having been convicted of an offence and a certain sentence’s having been imposed, that conviction and that sentence are essential facts in the Minister’s having power under s 501(1) to refuse to grant a visa. …
In Mr Ashraf’s case, the Tribunal was not provided with any sentencing remarks or other information regarding his convictions. The fact remains, however, that in each case the conviction was made and recorded and a sentence was imposed. While the Tribunal may have been assisted with further evidence in contextualising the nature of Mr Ashraf’s offending, it is unable to accept his contention that he did not commit some form of criminal conduct leading to the assault conviction, by his own plea of guilt and consequent sentence.
In a similar vein, Mr Ashraf’s responses to questions from the Tribunal about his conviction on five counts of Obtain Financial Advantage by Deception were considered evasive. Mr Ashraf said he was drunk and could only recall using a card found in a young woman’s handbag to pay for a taxi and purchase alcohol. He could not recall any other conduct that may have led to the other counts for which he had been convicted.
Putting aside the issue of what did or did not lead to Mr Ashraf’s convictions, his conduct is in stark contrast to the claim made by his lawyer to the Department in support of his Partner Visa application on 27 March 2014, which attested to his law-abiding nature:
The applicant has now formed an attachment with Australian life and cultures (sic). The applicant has not engaged in any criminal activity, nor does he associate with unsavoury character (sic). Mr Ashraf continues to remain a positive member in Australian society and seeks to contribute to society further.
As discussed earlier, this false statement was unknowingly made because Mr Ashraf failed to disclose his criminal conduct to his own lawyer. At the hearing the Department also explored its submission that Mr Ashraf had knowingly deceived the MRT when it considered his appeal into the rejection of his Partner Visa application. Mr Ashraf agreed that he did not offer the MRT information about his criminal offending, but argued in mitigation that the MRT did not ask him about it. It is not possible to determine what decision the MRT may have reached with the full knowledge of Mr Ashraf’s criminal conduct and immigration misconduct, but there is certainly no evidence in the Tribunal’s published reasons that Mr Ashraf’s criminal history was disclosed or considered.
Through his convictions and immigration misconduct, Mr Ashraf demonstrates that he does not have a high regard for Australia’s laws and that he was prepared to repeatedly lie – including to his own lawyer - in order to secure a favourable migration outcome. This type of misconduct enlivens consideration of Paragraph 11.1.1(1)(h) of the Direction, which states that:
(1) In considering the nature and seriousness of a non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:
…
(h)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending.
…
Mr Ashraf’s conduct also enlivens consideration of the framework principles, which state at paragraph 6.3(6) of the Direction that remaining in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been, law-abiding:
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
Mr Ashraf has been convicted of multiple offences since arriving in Australia. He has failed to comply with bail conditions and other corrective penalties imposed on him. He has attempted to mislead immigration authorities and submitted appeals and requests for administrative review of decisions, even when he knew that he did not satisfy a mandatory requirement for the granting of a visa. Mr Ashraf agreed with the Respondent’s submission at the hearing that his appeal following the refusal of his fourth Student Visa was made despite knowing that he did not possess the mandatory requirement of a certificate of enrolment in an eligible program of study. Mr Ashraf stated that he relied on ‘my luck’ for this review application, simply hoping that a different decision-maker would decide differently. Given the extent of his criminal offending and immigration misconduct, the Tribunal is unable to conclude that during almost a decade in Australia, Mr Ashraf has acted in a way that appropriately reflects his responsibilities as a visa holder and visa applicant.
The Tribunal has consistently pointed out that truthfulness is an indispensable requirement of the immigration process. See for example Khorn and Minister for Immigration and Multicultural and Indigenous Affairs 2003 AATA 705 at [74], and Re Jill Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148, where Deputy President McMahon noted at [35]:
The observance of truth in dealing with officials and migration matters (particularly when the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in Visa applications... Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.
The reasonable expectation of the Australian people is that a non-citizen studying in Australia will obey our laws and tell the truth to immigration officials in their visa applications. Multiple criminal convictions and repeated lies to the Department constitute a clear breach of that reasonable expectation and heighten concerns that the conduct will be repeated. Paragraph 11.3 of the Determination states that:
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.
The Tribunal not only has regard for the frequency of Mr Ashraf’s offending, but the repeat nature of driving and alcohol-related offences, and an escalation from a drink-driving offence in 2008 to more serious offences attracting suspended prison sentences of three months, three months and four months respectively within a four year period. Mr Ashraf said at the hearing that he had done these things because he was young, new to Australia, and didn’t fully understand Australia’s laws. Those comments are at odds with the repeat nature of some of his offences and the persistent nature of his immigration misconduct. The Tribunal considers that the assessment of risk under section 501(6)(d)(i) of the Act is heightened if a visa holder or a visa applicant has repeatedly engaged in similar conduct.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraphs 11.1.2 of Direction No. 65 states in part:
(1) ...
(2) ...
(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 on the risk of the non-citizen reoffending; and
(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.
The Department contends that the risk of Mr Ashraf re-offending is unacceptable and is heightened by his previous conduct. The Department states that community members may fall victim to similar offences by Mr Ashraf and Government agencies may be defrauded by further false declarations. Counsel for Mr Ashraf contends that he has not re-offended since his marriage and that can be accepted as a reliable indicator of his future conduct. Ms Germov also highlights Mr Newton’s assessment of Mr Ashraf’s risk of recidivism as ‘Low’ and the factors he identifies as favourable to Mr Ashraf’s continuing rehabilitation, particularly ‘the support of his wife, her extended family and a supportive group of friends.’
In considering these opposing views, the Tribunal accepts that the offences for which Mr Ashraf was convicted and sentenced occurred prior to his marriage. The Tribunal notes, however, that Mr Ashraf’s immigration misconduct continued after his marriage – including in the Partner Visa application that is the subject of this review. The Tribunal also notes Mr Newton’s agreement during cross-examination that he wasn’t fully exposed to the circumstances of Mr Ashraf’s conviction for unlawful assault or his repeated acts of immigration misconduct.
Paragraph 11.1.2(3) of the Direction requires the Tribunal to have regard to any evidence of rehabilitation. Mr Ashraf has admitted errors, but the Tribunal is not able to characterise his comments at the hearing as completely forthright or remorseful. This is particularly the case as he sought to downplay the seriousness of some convictions, failed to recall the circumstances of others, and denied guilt for the unlawful assault. The Tribunal concluded that Mr Ashraf was prepared to dissemble when it was to his advantage to do so, raising concerns that he might repeat the same behaviour in future.
The compassionate grounds informing the Tribunal’s consideration of Mr Ashraf’s case centre on his wife and the assistance Mr Ashraf has provided to their family unit since marrying. It is clear that Mr Ashraf’s wife relies on him for emotional support and the family values his financial and other practical support.
The Tribunal must further, under paragraph 11.1.2(3)(b)(iii) consider the duration of Mr Ashraf’s intended stay in Australia, which is significant. This is not a case in which the application is for a short term stay in Australia, which may assist in limiting any risk posed to the Australian community for the period of that visa. Mr Ashraf has long term intentions to remain in Australia. A Class UK, Subclass 820 Partner (Temporary) Visa, for which Mr Ashraf has applied, is part of a more involved process by which he seeks to obtain a Class UK, Subclass 801 Partner (Permanent) Visa. If successful in receiving the Partner (Temporary) visa, Mr Ashraf would be entitled to remain in and travel to and from Australia for two years, after which he would be assessed for the Partner (Permanent) Visa. This presents a significant amount of time in which further criminal offending or immigration misconduct may be committed.
Considering the factors set out above, the Tribunal is persuaded that the primary consideration of the protection of the Australian community from criminal or other serious conduct, weighs heavily in favour of refusing Mr Ashraf’s Partner Visa application. His criminal conduct encompasses 16 convictions in four years and includes a conviction for unlawful assault. Although that assault cannot be contextualised on the evidence before the Tribunal, the Tribunal cannot go behind the conviction. It must characterise the assault on the basis that assault convictions in Victoria require that there is at least an assault or threat to assault another person (section 31 Crimes Act 1958 (Vic)). The Tribunal must further consider that, along with the other offences committed on the night in question, the court imposed a suspended sentence of imprisonment, albeit a relatively short one. The increasing trend of seriousness in Mr Ashraf’s offending, as evidenced by suspended sentences of imprisonment for latter offences, taken together with his persistent immigration misconduct, suggest an unacceptable risk of re-offending in his case.
In assessing the competing views relating to Mr Ashraf’s risk of re-offending, the Tribunal also had regard for clause 6 of Annex A of the Direction, which provides guidance on exercising the discretion. Clause 6(3) states:
It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.
The evidence in Mr Ashraf’s case reveals more than a minimal or remote chance that, if allowed to remain in Australia, he would continue to engage in the sort of conduct for which his character has previously been called into question. In reaching this conclusion, the Tribunal notes Mr Newton’s assessment regarding Mr Ashraf’s low probability of re‑offending, but is not satisfied that it can accept this classification because of the repeat nature of some offences, the persistence of Mr Ashraf’s immigration misconduct – including after he was married - and his contradictory responses to questions relating to criminal convictions and immigration misconduct at the hearing.
Best interests of minor children in Australia
On the evidence before the Tribunal, there are no minor children in Australia whose interests are relevant to Mr Ashraf’s case.
Expectations of the Australian community
Paragraph 11.3 of the Direction states:
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 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.
The Direction implicitly acknowledges that the Australian community accepts some risk in relation to the conduct of non-citizens, depending on its seriousness. The evidence before the Tribunal about Mr Ashraf’s criminal conduct and immigration misconduct supports the conclusion that the Australian community would expect the Minister to refuse to grant Mr Ashraf a Partner Visa.
OTHER CONSIDERATIONS
There are no international non-refoulement obligations or impact on Australian business interests arising from Mr Ashraf’s case. That leaves impact on family members and impact on victims as the only other considerations to which the Tribunal had regard.
Impact on family members
Paragraph 12.2 of the Direction requires consideration of the 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.
The Australian community would understandably be concerned about the impact of visa refusal on Mr Ashraf’s wife and her family. The compassionate reasons informing that view are reflected in the evidence before the Tribunal. Mr Ashraf’s wife, father-in-law and brother-in-law spoke positively about Mr Ashraf’s contribution to their family unit and his wife’s continuing recovery from serious mental health issues. The Tribunal also notes the reports by Mr Newton and the MRT’s February 2015 review into the decision to refuse Mr Ashraf’s Partner (Temporary)(Class UK) Visa application, which remitted the application to the Minister on the basis that:
The Tribunal is satisfied that the mental health of the sponsor, and her dependence on the applicant for the stability of her mental health and her recovery, is a compelling reason for not applying the Schedule 3 criteria.
The Tribunal is satisfied this is a strong countervailing factor, weighing against the decision to refuse Mr Ashraf’s visa application. The evidence of Mr Ashraf’s wife engenders sympathy for her circumstances. The Tribunal accepts Mr Newton’s assessment that she would be distressed if Mr Ashraf’s was forced to leave Australia, resulting in some risk for deterioration in her mental state. However, her mental health issues pre-date her relationship with Mr Ashraf and the Tribunal notes Mr Newton’s evidence about the long-standing reasons for her continuing vulnerability. The Tribunal’s consideration of this factor is therefore mitigated by the long-standing nature of her mental health issues and advanced recovery prior to meeting Mr Ashraf, the continued support of her parents and brother, and the clear benefits of fulltime work in her ‘dream job’ during the last 10 months, which has significantly enhanced her confidence and self-esteem.
The Tribunal further notes the decision to marry was made by Mr Ashraf and his wife in the full knowledge he might be returned to Pakistan. Notwithstanding their strong preference to remain in Australia, his wife does have the choice to accompany him to Pakistan. The Tribunal accepts this would be a difficult choice, requiring her to consider her responsibilities to her parents who are in poor health, and her job in Australia. There would undoubtedly be a further financial impact on her family should she choose to leave for Pakistan, although the Tribunal notes her father receives Centrelink benefits, her mother receives Carer Payment as principal carer for her father, and her brother undertakes part time work, and, on the evidence before the Tribunal, can provide some degree of assistance.
Impact on victims
There is no evidence before the Tribunal that victims of Mr Ashraf’s offences will be impacted by a decision not to approve his Partner Visa.
CONCLUSION
After weighting up all of the evidence and the applicable law, the Tribunal concludes that the need to protect the Australian community against Mr Ashraf’s criminal and immigration misconduct, coupled with the expectations of the Australian community, outweighs the other considerations. This conclusion is reached with a degree of regret in relation to the effect on the Applicant's wife in particular, and cognisant of the difficult choices that will now confront her.
The Tribunal finds that Mr Ashraf does not meet the character test and that the discretion to refuse his partner visa was appropriately exercised by the decision-maker. The decision under review is therefore affirmed.
I certify that the preceding 97 (ninety-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC
[sgd]............................................................
Associate
Dated: 14 March 2017
Date of hearing: 3 March 2017 Date final submissions received: 10 March 2017 Counsel for the Applicant: Roz Germov Advocate for the Applicant: David Harvey Solicitors for the Applicant: David Harvey Law Advocate for the Respondent: David Brown Solicitors for the Respondent: Australian Government Solicitor
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