Djidjelli and Minister for Immigration and Multicultural and Indigenous Affairs - [2002] AATA 1238

DECISION AND REASONS FOR DECISION [2002] AATA 1238

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/1304

GENERAL ADMINISTRATIVE DIVISION       )
           Re      KAMEL DJIDJELLI
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
  Respondent

DECISION

Tribunal Hon. R N J Purvis Q.C., Deputy President

Date29 November 2002.
PlaceSydney

Decision The decision of the Tribunal is that it sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion provided for by section 501 of the Migration Act 1958 be exercised in the Applicant's favour. The matter is remitted to the Respondent for further consideration.

[Sgd] Hon. R N J Purvis Q.C.
Deputy President
CATCHWORDS
IMMIGRATION – spouse visa - refusal of visa on character grounds - false and misleading conduct in dealings with immigration authorities - whether fails character test - Ministerial Direction No 21 - countervailing factors - seriousness and nature of conduct - degree of hardship to immediate family members - decision to refuse set aside and remitted to Respondent.

Migration Act 1956 – section 501

Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771

REASONS FOR DECISION

29 November 2002 Hon. R N J Purvis Q.C., Deputy President

THE APPLICATION

This is an application made by Mr Kamel Djidjelli ("the Applicant") seeking review by the Tribunal of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Respondent") on the 6 September 2002. By such decision the Respondent refused the grant of a spouse visa pursuant to section 501 of the Migration Act 1958 ("the Act").
The Applicant was considered to be not of good character and the relevant discretionary factors were not determined in his favour by the Respondent. There is now no issue between the parties that by reason of the express provisions of the Act the Applicant is deemed to be not of good character. The issue now before the Tribunal entails consideration of whether the decision of the Respondent should be affirmed or set aside by exercise of the discretion conferred upon the decision-maker under section 501(1) of the Act.
THE HEARING
At the hearing of the application the Applicant was represented by Mr Christopher Levingston, Solicitor, and the Respondent by Mr Murray Allatt, a solicitor employed by the Australian Government Solicitor.
There was admitted into evidence the documents required to be provided pursuant to section 501G of the Act marked G1 to G27. The following documents were tendered on behalf of the parities as exhibits and marked accordingly:
Exhibit          Description Date
A        Affidavit of Mr Kamel Djidjelli        31 October 2002
B        Affidavit of Calie-Jane Shearer     31 October 2002
C        Affidavit of Christine Mary Shearer          Undated
D        Affidavit of John Blayney-Murphy 30 October 2002
E        Psychological Report of Dr Christopher John Lennings          11 October 2002

The Applicant, his wife Ms C J Shearer, his mother-in-law Mrs C M Shearer and Mr John Blayney-Murphy were each cross-examined on their written statements.
STATUTORY PROVISIONS AND DIRECTIONS
The Act provides as here relevant:
"Section 501
501 Refusal or cancellation of visa on character ground
Decision of Minister or delegate—natural justice applies
(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
…
Character test
(6)For the purposes of this section, a person does not pass the 'character test' if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
(c) having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct;
the person is not of good character; or
…
Otherwise, the person passes the 'character test'.
Substantial criminal record
(7)For the purposes of the character test, a person has a 'substantial criminal record' if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…"
The relevant direction of the Minister under section 499 of the Act is Direction No 21 which, apart from providing guidance as to the application of the character test and the matters there to be considered, makes provisions for factors to be taken into consideration in exercising the discretion conferred by section 501. The direction as here relevant provides:
"Part 2 – EXERCISING THE DISCRETION
2.1 If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Weight of considerations
2.2 The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. The primary considerations are set out at paragraphs 2.3 - 2.16 and other considerations are set out at paragraphs 2.17 - 2.24. Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
PRIMARY CONSIDERATIONS
2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
Protection of Australian Community
…
2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;
(b) the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
a. The seriousness and nature of the conduct
2.6 It is the Government's view that the following are examples of offences which are considered by the Government to be very serious:
…
(d) sexual assaults are particularly repugnant to the Australian community, especially the sexual assaults involving children regardless of whether there was overt violence or the threat of violence;
…
(f) murder, manslaughter, assault or any other form of violence against persons;
…
(n) any other crimes involving any violence or the threat of violence:

such crimes are of special concern to the welfare and safety of the Australian community; and
…
2.7 It is the Government's view that the sentence imposed for a crime is an indication also of the seriousness of the offender's conduct against the community. Decision-makers should have due regard to the Government's view in this respect including:
(a) the extent of the person's criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence; and
…
2.8 When exercising discretion, decision-makers must also take the following factors into account as relevant considerations.
(a) any relevant factors provided by the non-citizen as mitigating factors;
…
b. likelihood that the conduct may be repeated (including any risk of recidivism)
2.10 It is the Government's view that the person's previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism. In particular, the following factors will be relevant to the assessment:
…
(c) the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonable be expected to make.
c. general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhabit the commission of) like offences by other persons
2.11 General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. …
Expectations of the Australian community
2.12 The Australian community expects non-citizens to obey Australian laws while in Australia. … Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.
…
OTHER CONSIDERATIONS
2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations. These other considerations may include:
(a) the extent of disruption to the non-citizen's family, business and other ties to the Australian community;
…
(b) genuine marriage to, or de facto or interdependent relationship with, an Australian citizen, …
(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependent on the non-citizen for support which cannot be provided elsewhere;
(d) family composition of the non-citizen's family, both in Australia and overseas;
…
(h) any evidence of rehabilitation and any recent good conduct;
(i) whether the application is for a temporary visa or permanent visa;
(j) the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and
…"

RELEVANT FACTS
Generally

The Applicant was born in France on 28 June 1973, the Applicant's wife and sponsor, Ms C J Shearer was born in Australia on the 25 December 1971. They first met in June 1998 when the Applicant's wife was on a working holiday in England, the Applicant also in that country at that time. A relationship developed. The wife returned to Australia in October 1999, the Applicant following her on the 27 November 1999, he having been granted a tourist visa valid for three months. They married in Australia on 16 January 2000, the subject spouse visa application being made eight days later on the 24 January 2000. Since the marriage the Applicant and his wife have resided together in Australia, the Applicant seeking to perfect his fluency in English and undertaking a TAFE course leading to his obtaining his higher school certificate, the wife working for Unisearch.
There is evidence before the Tribunal as there was before the Respondent as to the integration of the Applicant into the Australian community and his involvement in sporting and social activities. There is also evidence as to the support provided to him by his mother-in-law and Mr Blayney-Murphy.
The Convictions
As earlier indicated the Applicant has a criminal history. On the 21 May 1997, he was convicted by the County Court of Paris ("the Court") on charges of "sexual aggression and resisting lawful authority" and sentenced to "a suspended term of imprisonment of two years with a period of two years of proof of good behaviour" (G22, p 261). He had been in "provisional detention" since the 16 of October 1996. More specifically the Court record recounts the alleged offences as:
"1) - that he has in PARIS on 17 September 1996 carried out a sexual act with violence, coercion, menace or surprise on the person of Clea PATIN
2) that he has in PARIS on 18 September 1996, offered resistance with violence to David FEILLET, a person vested with public authority while acting in the course of his duties."

There was also an order made in respect of compensation to the complainant and Mr Feillet.
Whilst there is no issue raised on behalf of the Applicant that the conviction falls within the prerequisites of section 501 of the Act to constitute he not being of good character, it is necessary for the purposes of considering the factors relevant to the exercise of the discretion for the Tribunal to have in mind the circumstances of the offences as noted in the Court record and the happening as presented by the Applicant initially to the Court, and later to his wife, to the Respondent and to the Tribunal. The relevance is as to the seriousness and nature of the conduct, the likelihood of repetition, and generally as to the credibility to the Applicant.
The Court record recounts (G22, pp 258, 259 & 260):
"INDICATION OF THE FACTS:
Clea PATIN, a student who is 18 years of age, laid a complaint on 18 September 1996 with the service of the Second Branch of the Department of Criminal Investigation in connection with an act of sexual aggression of which she had been the victim in the course of the preceding day. She provided an exact description of her aggressor as well as a description of the apartment where the events had taken place.
She explained that she was walking by herself, in the afternoon of 17 September 1996 at approximately 17:50 hours in the Marche Saint-Pierre neighbourhood, with the intention of buying pieces of cloth, when she was approached by a person who was unknown to her and who, after having introduced himself as being a student who sometimes was employed in advertising, suggested that he might take some photos of her which were to be used in a television commercial.
After having refused his proposal, she finally succumbed as a result of the insistence of this individual, who continued to follow her in the street, and also in order to find out whether he had or had not told her "a pack of lies". She followed him into a building at the rue d'Orsel where the advertising agency was meant to be located.
Once inside the apartment, the man's behaviour changed. She realised that she had been duped, she tried to leave. He took hold of her, telling her that she would be able to leave on condition that she would consent to have herself photographed in the nude. He had forced her to undress herself and had laid her on the bed. After having touched her sexual parts and having introduced a finger into her vagina, he had licked her. He had allowed her to leave after having taken three photographs of her in the nude.
A trip was undertaken to the rue d'Orsel at Paris 18 in order to allow the investigators to locate the building where the victim had been led, and which was found to be at number 62 of that street.
As they were climbing the stairs, the investigators crossed paths with a person with regard to whom Clea PATIN after some hesitation declared "That's him".
During their attempt to question him, they ran into strong resistance on the part of the person in question, who cause Lieutenant David FEILLET to fall, and who succeeded in fleeing the scene after having landed a heavy blow on the hand of lieutenant MOINET.
…
The President of the Court took part in the proceedings by interrogating the person accused on the facts of the case and receiving the declarations of the accused. DJIDJELLI confirmed that he had acted as he did in order to view the young woman in the nude, but indicated that he had not touched her – at any time –, and that the latter had undressed herself of her own free will.
After a second interrogation, he stated that he had only wished to recruit her as a model on behalf of an American he had met by chance in a bar called "The Locomotive", who had offered him the sum of 10.000 francs in order to provide him with a dozen photographs of an erotic nature.
During the course of a confrontation with the victim, he admitted that he had "caressed" Clea PATIN and that he had "wanted to amuse himself".
During the hearing, Kamel DJIDJELLI explained that he had been attracted to the young woman, and that the idea of misrepresenting himself as someone who would take photographs of her, had come to his mind as a means of convincing her to follow him. He admitted that the victim had been fearful and that he had to insist in order to obtain his ends. He had not wanted to hurt her and admitted that he had placed her in a humiliating situation. He admitted also that he had "caressed" her.
…
She [Clea Patin] felt somewhat responsible herself after the events had taken place, and indicated that she did not have any feelings of hatred towards her aggressor. She had wanted to withdraw her complaint, but the attitude of Kamel DJIDJELLI, who denied the events, had changer (sic) her mind."
Shortly after their relationship began, the Applicant told his wife of the conviction and the circumstances of it. The fact of the conviction was acknowledged in answer to question 68 in the Applicant's spouse visa application. The form was filled in by the Applicant's wife, he then not feeling sufficiently competent in English to carry out of the task. He did not read it over but signed it in the appropriate place.
The wife's then recollection, that is at the time she was filling in the spouse visa application form, of what she had been told appears in the description of "the nature of the offence" as she wrote it in English in the Applicant's visa application form. The description is (G4, pp 29 & 35):
"After an incident with a man. A woman came to my door a few weeks later, a said she had come to the wrong flat. The next day the woman returned to my home with two plain clothed policemen. They did not identify themselves. The [sic] approached me very violently forcing themselves in to my home. …
I was very confused and did not understand what was happening. I retaliated with force. The men were shouting at me with the woman still there behind them accusing me of rape. I was taken to the police station and detained until the court hearing.
I had several meetings with the Judge. At these meetings I would explain my innocence but the authorities would not listen. I had never had contact or dealings with this woman until the day she came to my door the day before she returned with the police. And this encounter was very brief (about 30 seconds long). After months passed my lawyer advised me to agree to half the story the woman had made up.
So tired, confused and of this advise given by my lawyer I did.
We went to court and I was charged and convicted of sexual assault with rebillion [sic].
Even though there was no physical evidence of me ever being near the girl.
I was sentenced t 18 months with 10 month [sic] suspended sentence.
I served 8 months in jail and got 2 months off for good behaviour."
The Applicant acknowledges that the circumstances were not as written by his wife who, according to both the Applicant and Ms Shearer, must have misunderstood what he had told her some years before.
During an interview with an officer of the Respondent on the 28 February 2000, the Applicant stated with regard to the convictions (G6, p 47 - 48):
"…

I was having lots of problem with money in 1996 when I met this man who asked if I knew any woman who would be prepared to be paid for pornographic photos.
He said he approached this woman and she agreed to do so however when the woman went to his apartment and undressed, he began to think of all the consequences so he changed his mind, did not take any photos, and asked the woman to leave the flat.

The next day the woman came to the flat with two plain clothed policemen. The men apparently pushed him inside the door of his flat started yelling at him. He therefore struggled with them, and ran away.
Because he ran away this made him appear to be suspicious and/or guilty. He claims that had he knew [sic] that the men were police officers he would not have resisted or struggled with them or ran away.
He said that the French system is different from the Australian. The offender is guilty until proven innocent. For this reason he was locked up and spent 7 months in jail to prior to the trial.
He said no matter what he said the authorities did not believe him and was advised to admit to some of the accusations. He was therefore charged with resisting arrest and the assault related to the police but not the girl.
Says he was sent to 10 months imprisonment but 8 months with good behaviour.
…"

When Ms Shearer was asked by the interviewing officer in the absence of the Applicant to relate what she had been told by him as to the circumstances it is noted that "she related the story as per the above dotted points. When she was asked about the different versions of the story, she accused herself of being the one who made the mistakes because she completed the form and believed that was how she interpreted the incident".
The Respondent sought certificates of conviction from both the French and English authorities, each of whom returned notification of no convictions. The Applicant was asked to obtain the Court record of his French conviction. In due course it became available and was provided by him to the Respondent.
In his statement (Exhibit A) the Applicant says:
"15. On or about early September 1996 I met an American by the name of Michael at a nightclub in Paris. We had the following conversation with words to the effect of:-
Michael said: "I am a photographer and I want to do something different with my career. Do you know anything about taking photos professionally?"
I said: "I can take photos but not professionally"
Michael said: "Do you enjoy taking pictures? If so, I am looking for someone who can take photos of nude women. They must be of amateur type. I am looking for a new amateur model to sell to international or for men magazine. I can pay 10,000 francs for 12 photos. Here's my phone number. Call me if you can get me photographs of amateur naked women"
16. Approximately one week later, I saw a young lady walking alone at Rue D'orsel in the Marche Saint-Pierre neighbourhood. I was under the impression that I seen this young lady before. I approached her and after a brief general introductory conversation the following was said:-
I said: "I am a student and I work part time for an advertising firm. I would like to take photos of you that can be used in a television commercial."
She said: "Great. What do I need to do?"
I said: "I need to interview you first. Follow me to my apartment"
She followed me to my apartment at Rue d'Orsel 18.
17. Once inside, I started feeling guilty and bad that I had misled her so I told her what the real purpose of taking the photographs was. We had the following conversation:-
I said: "I have a confession to make. The real reason I want you here is so I can take photos of you in the nude. Just let me take some photos of you naked, I will pay you 3000 francs"
She said: "What are you going to do with the photos? Are you going to sell them to someone?"
I said: "I am doing it for money. There is no risk of the photos being published. Just take your clothes off, I will take photos of you and pay you 3000 francs."
18. She agreed and removed her clothes. She was naked and lied [sic] on the bed.
19. Seeing this young woman naked made me feel extremely guilty and ashamed of myself. I thought of the potential consequences that the photos could be published once I gave them to Michael. We had the following conversation:-
I said: "I'm not ready to take photos of you naked."
She said: "What do you mean? I feel really stupid"
She put her clothes back on and said: "Pay me my money. I want my 3000 francs right now! I have been tricked and misled by you. I want my money"
I said: "No. Calm down. Come back tomorrow and I will pay you 3000 francs."
20. At no time did I ever penetrate her vagina with my finger nor did I place my tongue on her vagina and lick her. At no time did I take photos of her naked.
21. At no time did I restrain her in the apartment against her will.
22. She voluntary left the apartment on or about 6.30pm.
23. The next day at about 3.00pm, I was walking down the stairs in the common area building of my flat heading towards the exit. As I was walking down the stairs, I noticed three people were walking towards me. I identified one person as the woman who was in my flat the previous day for the purposes posing nude for photos. She was accompanied by two males. The two males did not identify themselves. They did not speak. One of the males grabbed my arm and tried to force me into my flat. I tried to free myself and in the process I fell down the stairwell with him.
24. In the process of falling down the stairs, the male let go and I was freed. I ran from the building as quickly as I could and I evaded the persons.
…
30. On 16 October 1996, I was arrested and remanded in custody. I was shocked to learn that I was charged with Aggravated Sexual Assault with violence and resisting lawful arrest. I was advised that the charges relating to resisting lawful arrest were caused by my altercation with the male person in my stairwell who was an undercover police officer. In fact, the other person was his partner and the woman was there to confirm my identity and lay charges for aggravated sexual assault.
31. In the complainant's statement, she alleged that after I asked her to strip naked and I inserted my finger into her vagina and I licked her vagina. She alleged that those actions were a condition for her to leave the apartment. I strongly deny those allegations.
32. On the first occasion that I appeared at Court, the Judge asked me whether I committed the offences of aggravated sexual assault and resisting lawful arrest in accordance with the allegations made by the complainant. I told the Judge that I invited the complainant into my apartment just so I could see her naked. I was too afraid to tell the full story. The judge sent me to jail.
33. On the second occasion in Court, I explained to the Judge the full events of what actually occurred, as described in paragraphs 15 to 24 of this Affidavit. I told the Judge of the circumstances in which I asked the complainant to attend my apartment. The Judge did not accept my story so he sent me back to prison.
34. I contacted a solicitor, Mr Claude Elalouf. He advised me as follows, using words to the effect of:-
Mr Elalouf said: "You have already spent long enough in prison. Its just not worth fighting these types of matters. Its more practical for you that you just plead guilty to the charges against you and admit that you licked her, inserted your fingers in her and that you resisted arrest with violence. Even if the evidence is not accurate, it is important that you plead guilty and tell the Court that you agree with the evidence of the complainant. It really doesn't matter what your principles or morals are like. Its going to cost you a lot of money if you defend this matter. Just plead guilty to the charges, it really is in your full interests. If you plead guilty to the charges, the Judge will give you back your freedom. Its not worth rotting in jail over a woman. Besides, the Courts always believe the woman in these matters. You really have no choice but to plead guilty"
35. I considered Mr Elalouf's advice and I agreed to plead guilty. On the third occasion that my matter was before the court, I pleaded guilty. The Judge listed my matter for hearing on or about 21 May 1997.
36. At the hearing, the Court sentenced me to a eighteen-month term of imprisonment that was suspended, Good Behaviour Bond for two years and ordered that I pay financial compensation to the woman and the police officer involved.
37. I paid all my compensation to the victims about a week after I was released from prison.
…"
During the course of his cross-examination the Applicant reaffirmed his version of the events, as set forth in Exhibit A, leading to the convictions. He said he had felt guilty in not telling the girl the real reason for asking her to go to his place and seeing her naked made him feel uncomfortable. It was all a mistake. She became annoyed and upset when he told her to go and come back the following day and he would pay her, this even be it he did not have the money. He denied engaging in any form of sexual assault. His confession as to caressing the girl was not true. He does admit to misleading her but realising his mistake tried to extricate himself. To no avail.
The above recitation of the various versions of the circumstances leading to the convictions is not intended to lead to any finding as to the accuracy or otherwise of the information detailed in the Court record or the accuracy or otherwise of the evidence given by the Applicant. It is not open to the Tribunal so to do for the purpose of determining whether the Applicant passes the character test (Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771) let alone in the absence of all the participants – and there then being, in effect, a second trial – for any other purpose.
The Tribunal observed the Applicant whilst he was under cross-examination and was impressed with his manner of answering questions even be it on occasions with the aid of a French interpreter. He gave the appearance of attempting to assist in the reaching of a preferable decision. He presented as an intelligent, caring, conscientious 29 year-old man, who six years ago became involved in events that resulted in his serving time in a penal establishment. He had not committed any offence before and has not committed any offence after the said events. He is spoken of very highly by his mother-in-law and Mr Blayney-Murphy, a recently retired ex-army sergeant, and by other friends and acquaintances.
It is not improbable that he was and is telling the truth. It is not improbable that the girl having been offered money for a service felt let down and became annoyed and vengeful when the Applicant in effect withdrew his offer, she may have felt humiliated and perhaps hurt. But this is conjecture.
These considerations do however deflect from the seriousness of the convictions and sentence.
This is not to say that the Applicant's conduct however seen was other than clearly unacceptable.
Psychological Report
The favourable impression gained by the Tribunal of the Applicant and his wife is reinforced by the assessment made of them by Dr Christopher Lennings, a clinical psychologist. In his report (Exhibit E) and after reciting the case history as given to him, Dr Lennings states that in his opinion the Applicant falls into the "medium low risk category" of re-offending that is conducting himself as he did six years ago. The psychological report assesses the Applicant as not portraying any significant risk of general criminal recidivism. By way of personality assessment the report states:
"Mr Djidjelli presents as a somewhat friendly, social and open person. He denies any history of psychological function. He is neither depressed nor anxious and does not reveal any symptoms associated with psychosis. He presents himself as a person who has reasonably good impulse control, he does not appear to have problems of addiction or dependency. … He appears to be a person of low cognitive function who has greater problems understanding people and concepts than he presents, but otherwise with a relative stable personality. Mr Djidjelli reveals a low risk of re-offence for a sexual offence and reveals few significant markers of general criminal recidivism.
…
Ms Shearer and Mr Djidjelli were interviewed together about their relationship and the results of that interview suggests that they have a good relationship in which there is good democratic decision-making, conflict resolution and support. …"
In summary Dr Lennings reports:
"The assessment reveals strong binds between Mr Djidjelli and his wife. The likely separation of this couple will destroy the marriage. Should Ms Shearer decide to accompany her partner to France, it is likely she will be miserable, homesick, and it is hard to see the relationship continuing. For his part, Mr Djidjelli does not reveal patterns of behaviour or indicators suggestive of further re-offending. Although there is a history of hardship in Mr Djidjelli's life, the offence appears to have been an isolated act, not incorporated into a criminogenic life-style and under normal circumstances, he would be expected to make a good adjustment to his future."

The Applicant's Family and Extended Family

The Applicant is estranged from his parents and siblings (other than his sister) all of whom live in France. Whilst the relationship between the Applicant and his father had been difficult for some years, it was his marriage to a non-Muslim that led to the present breakdown in familial ties.
On the other hand, his wife's family in Australia have embraced him with affection and as earlier stated hold him in high regard. They were each quite emotional at the possibility of the decision under review been affirmed. There is no doubt that the marriage is sound and the bonding sincere. The support offered and the available to the Applicant not only from his immediate family but from friends and acquaintances who, deposed to their knowledge of him, should ensure his beneficial induction into the Australian community.
The Applicant's wife has a very close relationship with her mother and stepfather. She is not fluent in French and has not lived in France. She has not met or spoken to the Applicant's parents or his sister or brothers. In the event of the decision under review being affirmed she said that it is more than likely her marriage would be at an end. Her husband, she says, gave up his family for her and "[o]utside of Australia there is nothing for Kamel and I".
The Discretion
As earlier indicated in these reasons by dint of the provisions of the Act, the Applicant is deemed to be not of good character. The discretionary considerations then are called to be addressed.
Primary Considerations
Protection of the Australian Community
It was submitted on behalf of the Respondent that the conduct of the Applicant and the findings of the French Court "do not allow for mitigating circumstances for the commission of the offence". The various versions of events as noted in the Court record, in the visa application and in the statements made by the Applicant allow little or no credibility to be afforded to the Applicant.
The Tribunal is not satisfied that this conclusion should inevitably be drawn. As earlier indicated whilst not making a finding in this regard, it is nevertheless conceivable that the version of the events as narrated by the Applicant are more closely in accord with the factual situation. Further, the suspending of the sentence is indicative of the Court regarding the Applicant's conduct as not being sufficiently serious to warrant further imprisonment following conviction.
The Tribunal accepts that the Applicant did regret his conduct and did seek to minimise any humiliation or hurt that might have been experienced by the young lady. It is quite conceivable that the non-payment following a promise to pay was instrumental in causing the lady to return with the police officers the following day.
Likelihood that Conduct be Repeated
The Respondent contends that the likelihood of "repeat offences" cannot be ruled out. The evidence of Dr Lennings has already been detailed and the Applicant has not misconducted himself so far as the Tribunal is aware in any way since 1996. The risk of the Applicant engaging in unacceptable and/or antisocial conduct in the future is seen by the Tribunal to be minimal.
General Deterrence
It is quite true as it was submitted on behalf of the Respondent that the refusal of a visa on account of the conviction might well deter persons who intend to migrate to this country from committing offences. It is also true that as the visa which is being applied for may eventually lead to a permanent residence that the level of good character to be exhibited or retained by an applicant be higher than for a mere temporary visa applicant. These are matters which are to be taken into consideration.
Expectations of the Australian Community
Consideration of the expectations of the Australian community requires an appreciation to be made of the whole of the evidence. It is not simply a matter of saying that the community "would not expect a person convicted of a charge of sexual assault to be granted a visa to enter Australia". Again the whole of the relevant circumstances are to be considered before an assessment can realistically be made as to such expectations. In the present case the relationship between the Applicant and his immediate and extended family and the acceptance of him by his friends and acquaintances is persuasive.
Other Considerations
The evidence before the Tribunal is such as to satisfy it that the Applicant's wife would suffer considerable hardship as would his mother-in-law and Mr Blayney-Murphy in the event of a visa been refused. The wife the more so. The Applicant is without a family support network in France but has obtained such support in Australia. It is not likely that the Applicant's wife would travel to or settle in France, this on account of the degree of dependency she has on her mother. Their bonding is very close.
As mentioned earlier in these reasons, the conduct of the Applicant other than for the events in 1996 has been without fault. The evidence indicates that whilst in England he obtained employment and commenced a course of study. Since arriving in Australia and marrying he has sought to better himself by study, presently seeking to obtain his Higher School Certificate and then to engage in a form of tertiary education. He is being supported in this endeavour by his wife who anticipates that once he completes his education and training and obtains employment they will commence a family. The evidence before the Tribunal is such as to show that the Applicant has sought to integrate himself into the Australian community and should in the fullness of time contribute constructively to that community.
DECISION
The Tribunal has taken into consideration all of the matters above mentioned. It is aware of the nature of the convictions and the circumstances said to have led to those convictions. It is also appreciative of the situation as propounded by the Applicant which it sees as conceivably being in accord with the actual circumstances. However, as earlier indicated the Tribunal is not called upon to make a finding in this regard. It is however relevant in the context of considering the seriousness of the offences and the conduct in general of the Applicant.
It is only the 1997 convictions and the circumstances that are said to lead to those convictions that presents a difficulty in the Applicant obtaining the visa sought by him.
The Tribunal is satisfied that the decision under review should be set aside and the matter remitted to the Respondent with a direction that the discretion provided for by section 501 of Act be exercised in the Applicant's favour. The Tribunal is satisfied that there does not arise for serious consideration issues referable to the protection of the Australian community in that, whilst the offences taken at their highest may be considered as serious, on another version of the events they may not be considered serious at least to the same extent. The likelihood of recidivism is minimal. The issue of general deterrence does not seriously arise. Whilst the expectations of the Australian community are to the effect that criminals should not be permitted to enter and remain in Australia, this consideration must be looked at not only as to the nature of the offences but also in the relevant context. The Tribunal is further satisfied that the Applicant does have the support not only of his wife but of the extended family in Australia, each of whom would experience hardship to a greater or lesser degree in the event of the Applicant being not granted a visa.

The decision of the Tribunal is that it sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion provided for by section 501 of the Act be exercised in the Applicant's favour. The matter is remitted to the Respondent for further consideration.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Hon. R N J Purvis Q.C., Deputy President
Signed:         L Bonouvrie
  Associate
Date/s of Hearing  11 November 2002
Date of Decision  29 November 2002
Solicitor for the Applicant         Christopher Levingston
Solicitor for the Respondent    Murray Allatt