Dayoub and Minister for Immigration and Border Protection (Migration)

[2017] AATA 1806

Dayoub and Minister for Immigration and Border Protection (Migration) [2017] AATA 1806 (27 September 2017)

Division:GENERAL DIVISION

File Number:           2017/4534

Re:Slaimen Dayoub

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member M J McGrowdie

Date:27 September 2017

Date of written reasons:        20 October 2017

Place:Sydney

The reviewable decision dated 26 July 2017 is set aside and in substitution it is decided that the discretion under s 501(1) of the Migration Act 1958 (Cth) is not exercised to refuse the Applicant’s application for a Partner (Temporary) Class UK visa

............................[sgd]............................................

Senior Member M J McGrowdie

CATCHWORDS

MIGRATION – visa refusal – partner visa – character test – substantial criminal record – protection of the Australian community – best interests of minor children – expectations of the Australian community – other considerations – decision set aside and substituted

LEGISLATION

Migration Act 1958 (Cth), ss 499, 501(1)

SECONDARY MATERIALS

Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Senior Member M J McGrowdie

20 October 2017

1. At the conclusion of the hearing of this matter on 27 September 2017, the reasons of the decision intended to be made were given orally. The Tribunal served both parties with a copy of the order outlining the decision that was made shortly after. On 28 September 2017, pursuant to s 43(2A) of the Administrative Appeals Tribunal Act 1975 (Cth), the Applicant requested the Tribunal provide written reasons for its decision. The written reasons are set out below.

   BACKGROUND

2. The applicant, Mr Slaimen Dayoub, is 32 years of age. He was born in Lebanon and came to Australia when he was 19 years of age.  He had uncles and other family living in Australia at that time; his mother remained in Lebanon and still resides there.  The applicant first came to Australia on 4 October 2012 on a Student (Temporary) (Class TU) visa.  On 4 October 2012, the applicant made a combined application for a Partner (Temporary) (Class UK) visa (the partner visa) and a Partner (Residence) (Class BS) visa. On 26 July 2017, the Minister for Immigration and Border Protection refused the Applicant’s application for the partner visa on character grounds pursuant to s 501(1) of the Migration Act 1958 (Cth) (the Act).   

3. After arriving in Australia, the applicant formed a relationship with a woman, who will be referred to as “Ms A”. They co-habited, however that relationship came to an end. The applicant subsequently commenced the relationship with another woman, who will be referred to as “Ms B” and they married and had a child. Ms B already had two children from previous relationships.  The relationship with Ms B subsequently came to an end.

4. The applicant’s relationships with Ms A and Ms B, having regard to the history which this decision will shortly come to, could be described in both cases as being relatively stormy, resulting in some charges being made against the applicant which could be generally described as domestic violence, or within that area. 

5. Subsequently, the applicant has formed a loving relationship with a woman who will be referred to as “Ms C”. That appears to have been a solid and cohesive relationship.  They are engaged to marry and they look forward to having children together.  Mrs C swore an affidavit on 31 August 2017, setting out her own background and her relationship with the applicant.  Ms C is a teacher and has completed a Masters of Education degree.

6. There has been a close connection between Mrs C’s family, the applicant and the applicant’s family in Australia.  In her affidavit of 31 August 2017, Ms C refers to the applicant’s criminal history, and indicates that what appears from that record does not suggest in any way the way she has found the applicant to be at this time, or during the course of their relationship.

7. The applicant has been in employment in Australia, more recently in his uncle’s formwork business.  There is an affidavit sworn on 8 September 2017 by the applicant’s uncle in which he outlines that the applicant has been working with his company as a supervisor formworker, and that the applicant’s duties have included supervising employees, organising rosters, work tools and building supplies for each site.  He commends the applicant’s working ability and will continue to provide him with employment, if the opportunity is available.   

8. He also indicates that he is aware of the applicant’s criminal history.  He deposes to the fact that the applicant, whose father died when the applicant was quite young, is treated by him like his own son.  He deposes to the regret expressed to him by the applicant for what the applicant had done in the past, and of his remorse and, further, to the applicant’s naturally calm disposition at work, and his abilities. 

9. The evidence before the Tribunal indicates that the applicant has two uncles, aunts, and their families here in Australia and is in regular association with them, as he is with Mrs C’s family.  In Mrs C’s evidence, she suggests that the applicant has integrated seamlessly with her family, as has she with the applicant’s family in Australia. 

10. Other than the applicant’s criminal history, the applicant appears to have integrated extremely well into the Australian community:  he has employment, a family, a fiancée here and a son. The applicant’s son is four years of age at the present time, and lives with his mother.  The applicant has had some access to his son over a period of time, and tries to regularly see him. 

11. It is the applicant’s intention, leaving aside the matters which are presently before the Tribunal, to continue to organise regular access to his son, and no doubt canvass any issue in relation to financial contribution.  The evidence is unclear as to whether the applicant is currently providing any financial support for his son, but it is reasonably apparent that there may be some obligation upon him to do so, and perhaps that is a matter which would be resolved in the Family Court, again, leaving aside the matter currently before the tribunal.

12. There had been an informal arrangement between the applicant and Ms B that he could see his son twice a week, however as sometimes occurs with such arrangements, there have been difficulties which have arisen between the applicant and Ms B, such that adherence to that regime may not have occurred as initially planned. 

    THE APPLICANT’S CRIMINAL RECORD

13. The applicant’s criminal record is set out in the respondent’s statement of facts, issues and contentions, and is also conveniently summarised in a document agreed to by the parties and handed up on the second day of the hearing to assist the Tribunal. 

14. Significantly, in 2011, charges were dealt with at Kogarah Local Court in May 2011; those charges related to events on 12 to 14 March 2011.  The charges were:  stalk/intimidate, intend fear of physical/mental harm; two counts of assault occasioning actual bodily harm, and common assault. 

15. The facts of the May 2011 charges are that the events began in March 2011 when the applicant and Ms A had been arguing. The vehicle in which they were travelling stopped and the couple walked over and sat on a nearby park bench.  The applicant was verbally abusing Ms A and when Ms A walked away, the accused threatened her by saying, “Come back, or I’m going to kill you”.  It was at that point that the applicant put both his hands around Ms A’s neck and maintained his hold for approximately 30 seconds.  Ms A then left the area by driving away.

16. Later in March 2011, Ms A arrived home with the applicant already being there.  An argument followed and on that occasion, the applicant punched and slapped Ms A in the face.  The applicant picked up a vacuum cleaner and threw it towards Ms A.  The vacuum cleaner hit the wall and bounced off, hitting Ms A. The applicant then walked to the kitchen in the residence and picked up a butter knife, holding it in his right hand, whilst punching Ms A with his left hand.  The argument continued and Ms A went to Rockdale police station to report the matter.

17. In May 2011, the applicant was sentenced in relation to the two counts of assault occasioning actual bodily harm to six months’ imprisonment on each count, to be suspended on entering into a good behaviour bond.  He was also sentenced to six months’ imprisonment, to be suspended on entering into a good behaviour bond, for the stalk and intimidate charge.  The applicant was sentenced to a 12-month good behaviour bond in response to the common assault charge.  Ms A had suffered some marks and some bruising in the events that had occurred. 

18. There is no doubt that these events, which occurred in 2011, were of a serious nature.  The applicant nonetheless escaped actual imprisonment and was dealt with by the court.

19. After the offences occurred, Ms A wrote a letter to the presiding magistrate, which can be seen in exhibit R1.  She deposes that she and the applicant started their relationship in June 2009 and had been living together since then, until March 2011. They had known each other and been dating before a solid relationship commenced.  She indicated in that letter that there were issues between her and the applicant in relation to the fact that she was childless and that she was presently separated from her former husband and going through a divorce. 

20. She considered that the whole episode in March 2011 was one that made them both better people, saying that the applicant was aware that he did wrong and that it was unacceptable, but that she was confident that things could return to the way they had and asked the court if the AVO could be removed, in favour of a bond to be of good behaviour. 

21. It is probably fair to say that the relationship between the applicant and Ms A had some continuing substance, notwithstanding the events of March 2011.  As a result of the incidents of March 2011 at the direction of the court, the applicant underwent a program which could be described as one relating to anger management and completed that program.  The outcome of the program was probably less than might have been desired, because the applicant again came to the notice of the court as a result of incidents occurring in his relationship with Ms B.

22. In November 2013, an argument developed between the applicant and Ms B, as a result of which the applicant smashed a window, or windows, of Ms B’s vehicle.  The applicant was charged with destroy or damage property and at the time, having a restricted substance in his possession, which appears to have been a steroid.  These offences came before the Bankstown Local Court in February 2014.  The events relevant occurred on 25 November 2013.  No penalty was applied in relation to the possession offence, although a conviction was recorded.  In relation to the damage to the motor vehicle, the applicant was directed to enter into a 12-month good behaviour bond.  Again, no direct custodial sentence was applied.

23. At the time of those matters coming before the court in February 2014, there had already issued an AVO against the applicant for the protection of Ms B and her children.  At the time, the applicant and Ms B had been married for a period of approximately three months and Ms B was pregnant with the applicant’s son.  The AVO was apparently issued because Ms B felt that she was continuously being watched by the applicant, to the degree that it might be regarded as being stalking and that it was making her afraid.  The applicant, in his evidence given before the Tribunal, indicated that his primary concern was for Ms B’s welfare, given that she was pregnant with his child.  This, of course, was against a background of the AVO in place as a result of the events of November 2013. 

24. Notwithstanding all of these events, there appears to be four pieces of correspondence from Ms B that are relevant.  But, I will come to those shortly, because there are other events which brought the applicant to the attention of the court, involving Ms B.

25. In July 2014, as a result of events in June 2014, the applicant was charged with breaching the AVO.  In June 2014, the applicant had sent approximately 60 texts to Ms B.  In addition to there being alleged a contravention of the AVO, there was also a charge relating to the applicant using his mobile phone to contact Ms B and also his friend’s phone, which he used to try and contact Ms B.  In addition to this, the applicant attended Ms B’s home, knocked on the door and was allegedly abusive. These charges were dealt with and the applicant was convicted and ordered to serve 50 hours community service and was put on a 12-month good behaviour bond. 

26. The next time that the applicant was before the court was in January 2015, for contravening the AVO.  The applicant, on 2 January 2015, had messaged Ms B to wish her a happy new year and to arrange a visit with his son.  For this, the applicant was given a 12-month good behaviour bond. 

27. There is a further event involving Ms B which occurred on 12 October 2014, when the applicant had gone to a party and Ms B arrived at the party later.  The applicant and Ms B exchanged what was described during the hearing as “black looks” whilst they were both on the dance floor.  A friend of Ms B’s intervened, in the sense of standing in between the applicant and Ms B and as events turned out, the applicant threw a punch at this person.  He also pushed Ms B.  Police attended and a more stringent AVO followed.  It seems that at the time of the event, the applicant was affected by alcohol.

28. Next is a matter that came before the court in June 2015, involving events on 24 December 2014.  On that occasion, the applicant bumped into Ms B’s son at a shopping centre, later calling Ms B and following with text messages to Ms B, stating that he did not want to cause trouble and that it was important that her son understood that.  The applicant and Ms B’s son apparently exchanged words.  For that, the applicant was fined $1,000 and the AVO that the applicant was subject to appears to have continued until early in 2017.

29. The community service order was, at some time, cancelled due to the problem that the applicant had continuing with the community service, because of problems he was having with his eyes. In substitution for the balance of the community service order, the applicant was given a fine. 

30. Apart from those matters which have been referred to, there are two further matters that came to court, involving traffic matters.  One was dealt with by the court on 6 May 2015 and the other on 5 July 2016.  With regard to the first, the applicant was charged with disobey a no right turn sign, driving an unregistered and uninsured vehicle and using his mobile phone.  He was fined $300.  In respect of the other traffic matter, the applicant was again charged with using his mobile phone, for which he was fined $200 upon conviction and an additional offence, described as drive when visiting privileges withdrawn - first offence, for which the applicant was fined $450.

31. There is no doubt that the applicant’s criminal history is significant.  However, one does need to look at the circumstances in relation to the various matters and in particular, the domestic violence matters. 

32. The traffic offences, whilst they do show a certain disregard for the law, are perhaps in a different category and whilst the matters that took the applicant to court in relation to the traffic matters were not dealt with by way of infringement notices, the court did not deal with them particularly strongly.  This suggests that those particular matters were not of high range significance and more particularly related to character are the domestic violence offences.

    LEGISLATIVE FRAMEWORK

33. The applicant’s application for a visa was refused, as indicated, on character grounds, pursuant to section 501(1) of the Act. The applicant concedes that the character test is not met, given the 2011 matters that came before the court and the way in which they were dealt with by the court.

34. Notwithstanding that the applicant does not pass the character test, it becomes a discretionary matter not to refuse the applicant’s application for a visa. Direction 65 made pursuant to s 499 of the Act is entitled “Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 65) and sets out the framework and principles to be applied in exercising a discretion to revoke a visa refusal under s 501 of the Act. In general terms, para 6.3 of Direction 65 clearly indicates that coming to, or remaining in Australia, is a privilege for non-citizens and that there is an expectation that such persons will obey the law. Where there has been criminal offending, the risk of reoffending is an important consideration, given the principle that Australia has a low tolerance of criminal conduct.

35. Paragraph 6.3 also makes clear that a consideration of a person’s contribution to the community and the consequences of a refusal must be undertaken.  Crimes of a violent or sexual nature are regarded as particularly serious.  Part B of Direction 65, is the relevant part and para 11(1) sets out the primary considerations that are relevant in deciding whether to refuse a non-citizen’s visa.  They 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. 

    Protection of the Australian community

36. Direction 65 expands what is relevant in relation to the protection of the Australian community and specifically refers to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community.

37. In considering the nature and seriousness of the conduct, violent crimes are viewed seriously.  The sentence imposed by the courts is relevant.  The frequency of offending and the cumulative effect of repeated offending are also relevant.  A further consideration is whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending. 

38. With regard to that latter consideration and as was addressed by the respondent in cross-examination of the applicant, an answer given in the applicant’s application for a partner visa was, “No”, to a question as to whether the applicant had what one might shortly be described as a criminal record. 

39. In evidence, the applicant indicated that he had no intention to conceal his previous offences and that the form had been completed by an immigration agent, even though the applicant had signed it.  It is difficult to imagine how the applicant would have deliberately set out to attempt to conceal such an obvious record, all of which was generated in Australia.  He indicated he was not conscious of the fact that that had been answered, “No”, on the form and he says that he had informed the immigration agent of the offences he had committed. 

40. Whilst signing the form with the answer, “No”, does not do the applicant any great credit, I do accept, in the circumstances, his explanation that he did not intentionally seek to conceal his criminal record.

41. With regard further to the primary considerations and the protection of the Australian community, in particular, para 11.1.2 of Direction 65 outlines relevant factors in assessing the risk to the Australian community.  What is there referred to is unacceptable risk of harm to individuals, groups or institutions in Australia and decision-makers are to have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.  Decision-makers are to have regard to the principle that Australia has a low tolerance of criminal or other serious conduct, reflecting that there should be no expectation that such people should be allowed to come to or remain permanently in Australia: para 11.1.2(2). 

1. In considering the risk, decision-makers must have regard to, cumulatively, the nature of the harm to individuals or the Australian community, should the non-citizen engage in further criminal or serious conduct and the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account information and evidence available, evidence of any rehabilitation achieved and the duration of intended stay in Australia.

2. As I have indicated previously, the offences committed by the applicant, particularly the domestic violence type offences, must be regarded as serious.  However, the circumstances of each must be looked at.

3. With regard to the risk to the Australian community, there is an assessment that was carried out by a consultant psychologist, Mr Anthony Diment, who produced a report, dated 2 September 2017.  In that report, Mr Diment indicates that he interviewed the applicant for the purposes of preparing the report on 1 September 2017 at Villawood Detention Centre.  He carried out a psychological assessment, after taking a reasonably comprehensive history and administered various psychological testing.

4. Mr Diment’s conclusion, reviewing the result of testing, the history taken and the interview which he conducted and considering his experience spanning some 45 years, was that the applicant represented a low risk in terms of reoffending.  He indicated that he could not be unequivocal in terms of predicting, but that all the indications were that this was the case.  Mr Diment considered that the testing he undertook could be regarded as being reliable.  He also took into consideration the applicant’s current loving relationship, his plans for the future and the existence of the applicant’s son.

5. I am inclined to accept that the applicant would fall within the category of low risk of reoffending.  He had two tumultuous relationships where, in each case, there were problems in the relationships and where each of the women involved were, it would seem, prepared to continue on with their relationships with the applicant, at least for a time.

6. Before the Tribunal is a letter written by Ms B in July 2015 to the Department of Immigration explaining that she herself had anger issues in the past and did not regard the applicant as being any threat to her.  Additionally, before the Tribunal is a handwritten letter written by Ms B to, “Whom it may concern”, to inform the Department of Immigration that she and the applicant were on good terms, that she regretted involving the police and that what had happened resulted also from her own anger, which developed into an argument.  She felt no threat to herself or to her own children and pointed to there being a close relationship with the applicant and their son, who the applicant sees very often.

7. There are also earlier letters from Ms B before the Tribunal. A statement by Ms B of 11 December 2013 stating that the applicant is her partner and refers also to the apprehended violence order taken out in January 2013. Ms B said, in that statement, she spoke to the police about withdrawing the AVO and that she needed the applicant to help take care of the children and herself during a period of proposed hospitalisation for her. 

8. Before the Tribunal is a statement which appears undated, from Ms B where she indicated that she wanted to withdraw her complaints about the applicant.  She refers again to her own anger and also refers to going through depression and that she wanted to hurt him.  She stated that she did not fear for her safety and that matters had simply gone out of proportion.

9. Having reviewed all of that material, of the Tribunal is of the view that the seriousness of the applicant’s conduct in his relationships with Ms A and Ms B, are somewhat tempered.  The applicant acted in an extremely inappropriate and unacceptable way towards them, particularly in relation to the 2011 events involving Ms A and the degree of violence involved.

10. The Tribunal is of the view that time has moved on and that the applicant has, so to speak, found his feet in a new and solid relationship with Ms C and that he proposes to marry and have children as well as foster his relationship with his son.   

    The best interests of minor children in Australia

11. The next primary consideration is the best interests of minor children in Australia as set out at para 11.2 of Direction 65.  These written reasons have already canvassed, to a considerable degree, the existence of the applicant’s son, the importance that should be placed on the applicant having a relationship with his son and more particularly, his son having a relationship with his father.  The applicant has indicated that he wishes to have access and exposure to his son and the Tribunal accepts this in this regard.  Additionally, Ms C has indicated that on many occasions, she has had contact with the applicant and his son together and would want to foster that contact. .  The Tribunal considers that this primary consideration weighs in favour of the applicant.

    Expectations of the Australian community

12. The third primary consideration is the expectations of the Australian community.  Paragraph 11.3(1) of Direction 65 states that the “Australian community expects non-citizens to obey Australian laws while in Australia”.  Where a non-citizen has breached, or whether there is an unacceptable risk that they will breach this trust, it may be appropriate in those circumstances to refuse the visa application of such a person. 

13. It is always difficult to assess what might be the expectations of the Australian community and whilst the community would not condone what the applicant has done, the Australian community, although having a low tolerance to serious conduct, might be regarded at least as having a degree of tolerance where the circumstances so indicate.

14. In the present matter, it is now some little time since these offences have occurred.  The applicant has found himself a solid relationship.  He has employment.  He has relatives, he has a son in Australia and what has happened to him in terms of his visa, I would consider to have had a very salutary effect on him. 

15. Overall, the Tribunal considers that the primary considerations weigh in the Applicant’s favour.

    Other considerations

16. There are other considerations, as set out in Direction 65.  The first is any international non-refoulement obligations.  They do not apply here.  The applicant could return to Lebanon.  His mother lives there.  However, the applicant would appear to have made attempts to get his life on track in Australia.  I The Tribunal is of the view that that there would not be any non-refoulement obligations which would prevent the applicant’s return to Lebanon. 

17. The next consideration is impact on family members.  The applicant has a wide family in Australia.  He has established himself within his fiancé’s family and no doubt there would be an impact on family members, should the applicant not be permitted to remain in Australia.

18. The next consideration is impact on victims.  I have recited the correspondence from both Ms A and Ms B, who could be regarded as being victims.  The Tribunal does not draw from those, or the general effects that have emerged, that there is an impact on victims that would result from the applicant remaining in Australia.

19. Next is the impact on Australian business interests, which does not seem to the Tribunal to be of any particular application.  In the circumstances of this matter, the fact that the applicant has employment is in his favour and it seemed from the applicant’s evidence that his commitment to his work in his uncle’s business is a matter which is important, not only to the applicant, but also to his uncle.  This matter is also relevant to the impact on family members, namely the applicant’s uncle.

20. The Tribunal considers that, in balancing the primary and other considerations, they favour an exercise of discretion against a refusal of the applicant’s visa.

    DECISION

21. The reviewable decision dated 26 July 2017 is set aside and in substitution it is decided that the discretion under s 501(1) of the Migration Act 1958 (Cth) is not exercised to refuse the Applicant’s application for a Partner (Temporary) Class UK visa.

I certify that the preceding 62 (sixty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member M J McGrowdie

...............................[sgd].........................................

Associate

Dated: 20 October 2017

Dates of hearing:	26 and 27 October 2017
Counsel for the Applicant:	Mr J Young
Solicitors for the Applicant:	Ms H Tran, Bilias and Associates
Solicitors for the Respondent:	Mr L Gell, Clayton Utz