El Ghoul and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)
[2023] AATA 397
•16 March 2023
El Ghoul and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 397 (16 March 2023)
Division:GENERAL DIVISION
File Number(s): 2022/10477
Re:Mohamad El Ghoul
APPLICANT
AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member K Raif
Date:16 March 2023
Place:Sydney
The Tribunal sets aside the reviewable decision dated 13 December 2022 and substitutes it with a decision that the discretion to refuse the Applicant’s Class UK Partner (Temporary) visa under s 501 of the Migration Act 1958 is not exercised.
.............................[SGD]...........................................
Senior Member K Raif
CATCHWORDS
MIGRATION - failure to pass character test - whether there is another reason to exercise direction - Ministerial Direction 90 - evidence of rehabilitation - assessment of future risk - protection of the Australian community - best interests of minor children - expectations of the Australian community - nature and seriousness of offending conduct - links to Australian community - strength, nature and duration of ties - decision under review set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
CASES
BHL19 v MICMSMA [2020] FCAFC 94
EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536
SECONDARY MATERIALS
Direction No.90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member K Raif
BACKGROUND
This is an application for review of a decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) made on 13 December 2022 to refuse to grant a Class UK Partner (Temporary) visa to the Applicant.
Mr Mohamed El Ghoul (the Applicant) is a national of Lebanon, born in January 1988. He travelled to Australia in November 2009 holding a Student visa. This visa was cancelled in July 2011. In July 2012, the Applicant made an application for another substantive visa, which was not successful. The Applicant made an application for the Partner visa in February 2016. In January 2020, the Applicant was issued with a Notice of Intention to Consider Refusal (NOICR) of the visa under s. 501 of the Migration Act 1958 because the Applicant had been convicted of an offence and the delegate formed the view that there was a risk that the Applicant may engage in criminal conduct in Australia. The Applicant provided his responses to the NOICR and in December 2022 the delegate decided to refuse to grant the visa under section 501(1) of the Act. The delegate found that the Applicant did not pass the character test and exercised their discretion to refuse to grant the visa to the Applicant.
The hearing in this matter took place in person, on 1 and 2 March 2023. The Tribunal received oral evidence from the Applicant, his partner Ms Istanbouli, the Applicant’s cousin Mr Firas El Ghoul and his uncle Mr Ahmad Talal Charkawi.
The issues before the Tribunal are:
(a)whether the Applicant passes the character test as required by section 501 of the Act and, if not;
(b)whether the Tribunal should exercise its discretion to refuse to grant the Applicant the visa.
RELEVANT LEGISLATION AND POLICY
Pursuant to section 501(1) of the Act, the Tribunal acting as the decision maker may affirm a decision to refuse the grant of a visa if it is satisfied that the Applicant does not pass the character test.
The character test is set out at section 501(6) of the Act. Relevantly section 501(6)(d) of the Act provides that a person does not pass a character test if,
in the event the person would be allowed to enter or to remain in Australia, there is a risk that the person would
(i) engage in criminal conduct in Australia.
Subsection 501(6)(d)(i) of the Act requires the making of an assessment about whether there is a ‘risk’ that the Applicant ‘would engage in criminal conduct in Australia’. That assessment involves a consideration of past conduct, usually previous criminal offending, as well as conduct after any such offending, which will often involve issues around remorse and rehabilitation for past offending. This is the nature of the ‘probabilistic assessment’ to which Perry J referred in EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536 at [182].
In BHL19 v MICMSMA [2020] FCAFC 94, the Court held section 501(6)(d) has been cast by the legislature in wide terms, with low thresholds; that a person does not pass the character test if found to meet a threshold as low as “a risk” of representing a “danger to the Australian community”; and that section 501(6)(d) of the Act does not refer to any particular level of risk, be it high, low, remote or negligible. It is an evaluative exercise for the Minister to conduct as to whether any such risk exists, and if so, what the consequences might be: per Bromwich J (White J agreeing) at [324], [325], [337], [338].
Should the Applicant not satisfy the character test, the discretion to refuse the visa under section 501(1) of the Act is enlivened. The exercise of the discretion is governed by the considerations set out in Ministerial Direction No. 90 – Visa Refusal and cancellation under section 501 and revocation of mandatory cancellation of a visa under section 501CA (Direction No. 90). Direction No. 90 is binding on decision-makers, including this Tribunal, in performing its functions, or exercising powers under section 501 of the Act.
Direction No. 90 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. The principle set out at clause 5.2(2) of Direction No. 90 states that:
‘Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.’
The primary considerations set out in clause 8 of Part 2 of Direction No. 90 are:
- protection of the Australian community from criminal or other serious conduct;
- whether the conduct engaged in constituted family violence;
- the best interests of minor children in Australia; and
- expectations of the Australian community.
The other considerations set out in clause 9(1) of Direction No. 90 are:
- international non-refoulement obligations;
- extent of impediments if removed;
- impact on victims;
- links to the Australian community including:
i.strength, nature and duration of ties to Australia; and
ii.impact on Australian business interests.
Decision-makers should ‘generally’ give greater weight to the primary considerations than the other considerations. Further, one primary consideration may outweigh other primary considerations: clause 7(2) and (3) of Direction No. 90.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Past offending
The Applicant’s criminal history is referred to in various documents and submissions provided to the Tribunal. The AFP report indicates that on 10 March 2015, the Applicant was found guilty of the offence of common assault. No conviction was recorded and the Applicant was placed on a good behaviour bond for 12 months.
The NSW Police Facts Sheet dated 23 July 2014 sets out the circumstances of the offence. It is reported that in January 2014, the Applicant shouted at his then girlfriend, accusing her of wanting to meet other men. It is reported that the Applicant had slapped the complainant when she covered her face with her hands. During another argument later in the day, the Applicant is reported to have kicked her car causing the door panel to be bent and he also punched the bonnet of the car, causing a dent. The Applicant pleaded guilty to that offence.
In his sworn declaration dated 31 January 2023, the Applicant offers a description of events that took place on that day. He states that his girlfriend came to his house unexpectedly, after she told him that the relationship was over. The Applicant states that he escorted her out of the house and when she pleaded to continue the relationship, in a ‘momentary lapse of judgment’ he became frustrated and kicked the car door a few times. In oral evidence, he denies having hit the bonnet of the car, stating that he ‘tapped it lightly with the palm of his hand’, which resulted in a dent. The Applicant refers to having an argument with his girlfriend who admitted to cheating on him, and as he was angry, he states he smashed his phone on the floor. The Applicant states that his girlfriend was having ‘a meltdown’ and called the police. The Applicant indicated that he disagrees with some of the information in the Facts Sheet and only pleaded guilty on advice of his lawyer, to avoid the costs and the process dragging on. Moreover, he expressed his remorse for his conduct, stating he had complied with the good behaviour bond and abided by the terms and conditions of the Court order. In his 2016 declaration, the Applicant provided a somewhat different version of events when he claimed the car was damaged while he and his partner were having lunch, with no mention of having damaged the bonnet of the car.
Furthermore, there are some discrepancies in the Applicant’s evidence concerning the court proceedings. The Applicant’s evidence is that he provided evidence of his innocence to the court and that all charges were dropped, which is clearly not the case. The Respondent submits that these discrepancies point to the Applicant’s lack of credibility, but the Tribunal acknowledges these may have been due to the Applicant’s misunderstanding of the process. Similarly, the Tribunal places no adverse weight on the fact that in his second declaration the Applicant claimed that since that incident he had not been charged with any offences, which is untrue. The Applicant’s representative clarified that the Applicant may have meant he had not been convicted of any offences and in circumstances where English is not the Applicant’s first language, that misstatement may be explicable.
The police report also refers to the Applicant inflicting physical harm upon his girlfriend, such as slapping or hitting her. In his oral evidence to the Tribunal, the Applicant denies having slapped or punched his girlfriend, stating he only grabbed her by the hand. The Applicant told the Tribunal that he pleaded guilty to assault on advice of his lawyer because he did not realise the seriousness or the implications of his plea. The Applicant also claims that he did not receive an explanation of what he was pleading guilty to or what a guilty plea entailed. The Tribunal does not accept this assertion and is of the view that the plea of guilty can be taken as evidence that the Applicant did commit the offence. The Tribunal has formed the view that the Applicant had sought to misrepresent the nature of the incident and to minimise his culpability by claiming that he did not do what the agreed police Facts Sheet claims.
The delegate also refers to another NSW Police Facts Sheet indicating that in June 2016 the Applicant was arrested on charges of destroy or damage property (DV) and common assault. He was accused of intentionally knocking a plate out of his wife’s hands and smashing another plate. Likewise, he was accused of smashing a computer on the ground. It was alleged that the Applicant hit and slapped his wife on multiple occasions and verbally abused her. This incident is further explored in the Applicant’s 2023 declaration.
In his 2023 declaration, the Applicant explains that he had an argument with his wife and in frustration, he pushed the plate off the table which smashed on the floor. His wife did the same. The Applicant states that as the argument continued, he smashed his computer on the floor and told his wife he wanted to leave but he did not assault her in any way. In this declaration, the Applicant states that his wife threatened to call the police and provide false information against him. Furthermore, he claims that his wife later asked him to come back, that she would tell the police she made false allegations and would withdraw the charges. In oral evidence, the Applicant initially denied having pushed his wife and later said that he ‘gently touched her’ to move her aside. The Applicant states that there is presently an AVO in place directed at his ex-wife and he is named as the protected person.
In oral submission, the Respondent raised concerns about the Applicant’s description of events, claiming it is not credible that, following an argument, involving the smashing of plates and a computer, the Applicant would then simply gently put his hand on his wife’s shoulder to move her. The Applicant then told the Tribunal that he “gently pushed” his wife out of his way, which appears to be inconsistent with his 2023 declaration when he claims he did not push his ex-wife. He also denies calling his wife various names. In the absence of an agreed statement of facts or a conviction, it is difficult to determine what had occurred at the time. The Tribunal is not prepared to make a positive finding that the Applicant did commit any offences at the time of the incident, noting that the charges were withdrawn, and the matter did not proceed to a hearing. The Tribunal acknowledges the Applicant’s concession that he smashed a plate and the computer and that he had ‘gently pushed’ his wife.
In oral evidence, the Applicant also concedes that during that incident he took his wife’s phone. However, he denies that this was done to prevent her from contacting her brother. The Police Facts sheet indicates that when the police attended the premises and searched the Applicant, he was found with two phones and the Applicant is reported to have stated that he took his wife’s phone to stop her calling her family. The Applicant then agreed in oral evidence that he did so (and that he failed to mention taking the phone from his wife in his three declarations). Therefore, the Tribunal has formed the view that the Applicant has sought to minimise the seriousness of his conduct and has deliberately omitted details that he considered may have been perceived as being adverse to him, in his written statements.
The Tribunal is mindful that the charges in relation to the 2016 events were withdrawn in July 2016 and dismissed by the local court. An application for an AVO on behalf of the Applicant’s wife was also withdrawn and dismissed. The Tribunal is of the view that in the circumstances where charges were withdrawn and dismissed, the information contained in the Police Facts sheet is of limited probative value. This is because the information in question has not been tested in court and the veracity of the information has not been confirmed. Nevertheless, the Tribunal does place weight on the Applicant’s own evidence related to the 2016 argument with his wife and the subsequent damage to property. The Tribunal accepts the Respondent’s suggestion that the Applicant’s conduct may be indicative of his inability to manage his emotions and behaviour.
The Respondent refers to other incidents of family violence or threats of violence. The Respondent refers to an incident in 2021 when the police were called to the home of the Applicant’s former spouse when she claimed the Applicant had verbally abused her, smashed a perfume bottle, threatened her, and attempted to strike her. A further allegation was made by his former spouse, indicating that the Applicant controlled her access to money. In oral evidence, the Applicant denied verbally abusing his wife. He admits to ‘throwing out’ the empty bottles of perfume which belonged to him but denies having assaulted or otherwise hurting his wife.
Again, the Tribunal is mindful that the Applicant had not been convicted of offences and the police narrative indicates that due to conflicting versions, the police did not consider there was sufficient evidence to build a prima facie case. The Tribunal acknowledges the Respondent’s submission that it can have regard to the information in the Police Facts Sheets and other information even in the absence of a conviction. However, the Tribunal is of the view that where the evidence is untested and contested, it is of very limited probative value. The Tribunal decided to give these allegations no weight.
Additionally, in the police report of an incident in February 2022, it is noted that the Applicant was not subject to an Order at the time and there was no prohibition on the Applicant contacting his partner. Hence, the police concluded that there was no breach of ADVO at the time. Similarly, there are reports of other instances where a breach of the ADVO was alleged, but police later found no such breaches occurred. Therefore, the Tribunal places no weight on that incident.
There is reference to another incident on a job site, in which an individual was hit by a broken fence, resulting in the Police being called. The Applicant denied in oral evidence that there was a heated argument and states he simply checked on the person’s welfare. The Applicant states that he gave a statement to police at the site and no other contact with the police occurred. The Tribunal notes the Applicant had not been charged with any offence and does not place any adverse weight on this incident.
The Tribunal acknowledges that there has been only one finding of guilt in relation to the Applicant with respect to offending conduct which occurred in 2014. There are other incidents which the Applicant admits have occurred, involving damage to property. The basis of the character assessment in this case is not the Applicant’s past convictions but the risk of future reoffending. While the Tribunal decided to place limited or no weight on the conduct that has not been agreed to or on the evidence which has not been tested or proven, the Tribunal does place weight on the Applicant’s conduct that resulted in the finding of guilt, his admitted conduct and the Applicant’s general disregard for the law.
Evidence of Rehabilitation
The Tribunal did not have any evidence indicating that the Applicant has engaged in any formal rehabilitation programs, such as anger management courses. He later conceded in oral evidence that he had not completed such courses.
In his January 2023 declaration, the Applicant states that the event leading to his conviction occurred 9 years ago when he was in his mid-twenties, before he had children and built up his career. He contends this change in maturity means he cannot imagine responding in the same way he did then. The Applicant states that his past conduct was out of character. He denied being the perpetrator of physical and sexual assault against females, but instead claimed to be the victim of family violence. (The Applicant provided some screen shots relating to what he claims was abusive communication from his former partner.)
The Applicant submits that he has grown stronger in his faith and established a stronger connection to his religion. He references his long-term employment and community involvement as being examples of this growth. In oral evidence, the Applicant admits that in the past, he was easily provoked but now claims to be more mature and to better able to control himself.
The Tribunal has had regard to the reports prepared by Mr Tim Watson-Munro. In the most recent 2023 report, Mr Watson-Munro refers to the Applicant reporting on the 2016 incident when his partner called the police and states that the Applicant concedes that he lacked the emotional resources to deal with his partner’s threats. Mr Watson-Munro notes that in 2021 when facing harassment from his ex-partner, the applicant reported the matter to the police, which resulted in the AVO being issued. The Applicant reported that he had managed these dynamics in mature and effective manner, with there being no suggestion of criminal activity referable to domestic violence.
Mr Watson-Munro states that the Applicant appears to have a strong motivation to live a law-abiding life, noting that the offence occurred nine years ago. He is concerned about his children and the effect on them if he was to leave the country. Likewise, Mr Watson-Munro also addresses the fact that the Applicant has expressed deep regret for his past behaviour.
Mr Watson-Munro states that there has been no offending since the earlier offence and reiterates that the Applicant has maintained stable employment and close contact with his children despite ongoing difficulties. His former wife has described him as a dedicated father. Mr Watson-Munro notes that the Applicant’s criminal record involves one Good Behaviour bond with no conviction, occurring in 2014 and he has no prior or subsequent convictions. He does not use illicit drugs or alcohol, appears to be pro-social in his attitude, is now involved in a stable marriage, and has serious concerns about his ability to support his family if he was to return to Lebanon. Mr Watson-Munro refers to the Applicant’s present wife being pregnant, noting that if he was to leave, the separation from his three children would result in them suffering psychological harm.
Mr Watson-Munro agreed that the 2016 incident reflected poor impulse control, poor judgment, and poor anger management on the part of the Applicant but notes that time has passed since the incident.
In his report, Mr Watson-Munro has expressed the view that the risk of the Applicant reoffending is low. It is noted that the Applicant has demonstrated and expressed considerable remorse for his past behaviour, noting that he has matured. Mr Watson-Munro notes that following separation, he had full-time custody of his children for several months, indicating there was general agreement and satisfaction that he was an adequate father who posed no risk to others. He does not use drugs or alcohol, had been gainfully employed and involved in community activities. Mr Watson-Munro states that the Applicant had no treatment for the stresses he had experienced over the years. His assessment does not indicate the Applicant is suffering from any significant psychological disturbance beyond anticipatory anxiety relating to his visa status.
The Tribunal has also reviewed the report prepared by Mr Watson-Munro in October 2020. It refers to the Applicant’s background, stable employment, and his relationship with his now ex-wife. Mr Watson-Munro states that his ex-wife refers to the Applicant as being a dedicated father who is loved by the children. Mr Watson-Munro states that the Applicant has moved forward in his life since his offending and had expressed remorse. Mr Watson-Munro has expressed the view that the applicant is considered to be at low risk of reoffending and that he could make a productive contribution to Australia.
The Tribunal acknowledges the professional opinion of Mr Watson-Munro. However, the Tribunal is also mindful of his oral evidence that in formulating his opinions. Mr Watson-Munro was focused on the outcome of the court proceedings, rather than the factual circumstances leading to the charges. The oral evidence of Mr Watson-Munro is that he was not provided with the full details relating to the 2014 offence and the 2016 incident. In particular, he was not informed that the Applicant admitted to smashing the plate, smashing his computer, and taking the phone from his wife to prevent her calling her family. It appears that in formulating his views, Mr Watson-Munro was not apprised of some of the factual information relating to the Applicant’s past conduct and gave only limited consideration, if any, to the circumstances leading to the conviction in 2014 and the 2016 incident.
Mr Watson-Munro’s findings are based to a considerable degree on the Applicant’s declaration. The Applicant’s oral evidence to the Tribunal is that some of the incidents described by the police did take place and this information was not before Mr Watson-Munro at the time of formulating his opinion.
In oral evidence, Mr Watson-Munro agreed that the risk of reoffending may not have been identified as ‘low’ if the full information was before him at the time, particularly given the Applicant’s lack of engagement in any intervention. Mr Watson-Munro has expressed the view in oral evidence that in 2016, in light of the full information, the risk of the Applicant reoffending would have been described as moderate to high. Mr Watson-Munro stated that given the Applicant’s history, the absence of treatment is significant in this case, and he would assess the risk of reoffending as being higher than the ‘low’ risk.
Mr Watson-Munro acknowledged that past misconduct may have occurred during the Applicant’s ‘unstable relationships’, which would have been a contributing factor and he has expressed the view that the fact that he is now in a stable relationship would act as a protective factor. However, Mr Watson-Munro reiterated that despite that, and having regard to the Applicant’s circumstances, in his view the risk of reoffending remains ‘moderate trending to low’.
At the conclusion of oral evidence, the Applicant’s representative has indicated that the Applicant no longer wishes to rely on the report and the opinion of Mr Watson-Munro, noting that he had not taken into account relevant documents when formulating his opinion. As noted above, the Tribunal has formed the view that the evidence of Mr Watson-Munro is of limited probative value because he has not given consideration to all the evidence that may have been relevant to his assessment, but the Tribunal consider Mr Watson-Munro’s evidence to be relevant and helpful.
The Applicant presented multiple character references in his submissions to the delegate and the Tribunal. The Tribunal accepts that those who provided references believe the Applicant to be a good person and of good character. Some of the referees have expressed the view that the Applicant could not have committed the offence or acted in the way described in the Police Facts Sheet. Noting the Applicant’s admission in relation to some of the conduct, the Tribunal does not consider their evidence to be helpful. Nevertheless, the Tribunal has given the character evidence some weight.
Assessment of future risk
As noted above, the courts have found that the legislation imposes a low threshold when assessing the risk and a risk that is low or negligible can still amount to a risk.
In this case, there is only one event that led to the Applicant’s finding of guilt, without conviction being recorded. The event occurred in January 2014, some nine years ago. The fact that no conviction was recorded may indicate that the offending was at the lower range of seriousness.
There have been no convictions since that time. However, as noted above, there is information suggesting that the Applicant was involved in other incidents during his relationship with his ex-wife and the Applicant concedes that some of the events described by the police did take place. In relation to the 2016 incident, the Applicant admits that he smashed a plate and his computer and had an argument with his wife during which he had ‘gently pushed her’ out of the way. The Applicant concedes that during an argument with his wife he took away her phone to prevent her from contacting others. The Applicant concedes that in 2021 he smashed some perfume bottles during an argument with his wife.
There is no evidence of the Applicant’s engagement in any rehabilitation programs or of his intention to participate in such programs. The Applicant did have some sessions with Mr Watson-Munro but appears these were arranged for the purpose of preparing the reports and Mr Watson-Munro spoke of the desirability of the applicant’s engagement in intervention programs.
It is of considerable concern that in his 2023 declaration the Applicant suggests that he was not the main aggressor in his past relationship but a victim. While the Tribunal acknowledges that the Applicant has been named as a protected person in an ADVO, there is no dispute that he was found guilty of an offence relating to the 2014 incident with his then girlfriend and he concedes property damage and other controlling behaviours in relation to his partners. As noted elsewhere, the Tribunal has formed the view that the Applicant also sought to minimise the nature of his misconduct or deny the existence of events. For instance, by claiming he had no contact with his ex-girlfriend after the court date despite the police reporting ongoing phone contact. Similarly, by initially denying making a dent in the bonnet of his girlfriend’s car and later suggesting he touched it ‘gently’. Lastly, initially denying that he pushed his wife and then stating that he pushed her ‘gently’. The Applicant’s evidence suggests that does not have a real insight into his conduct.
The Tribunal is also of the view that the Applicant’s immigration history shows his general disregard for the Australian laws. The evidence is that the Applicant’s initial Student visa was cancelled, and he told the Tribunal this was because of his commitment to support his family and his accident, he lost interest in study and did not attend classes. After his Application for a substantive visa was refused, the Applicant lived in Australia unlawfully for what he claims was about three years and he also told the Tribunal he worked in that period to support his family. The Applicant told the Tribunal that he was aware he was breaching the Australian laws, but he wanted to remain in Australia. It is of considerable concern to the Tribunal that the Applicant seems to have believed that his personal interests and preferences were of greater importance that the need to comply with the Australian laws. The Applicant’s disregard for the law suggests to the Tribunal his willingness to breach the law when he believes it suits his circumstances.
The Applicant’s representative submits that it would be erroneous for the Tribunal to have regard to the Applicant’s immigration history and that the Tribunal is prohibited from doing so. The Tribunal does not accept that submission, noting that the Direction does not provide exhaustive list of matters that the Tribunal is able to consider and does not expressly preclude consideration of others matters including a person’s immigration history. The Tribunal accepts the submission of the Respondent that having regard to the Applicant’s immigration history is not inconsistent with the purpose of the Act. The Tribunal is of the view that a person’s potential breaches of the law other than criminal conduct (such as employment as an unlawful non-citizen in breach of the Migration Act) is not an irrelevant consideration.
The Respondent submits that the Applicant’s lack of credibility is also an important consideration. As noted above, there are several discrepancies in the various statements prepared by the Applicant that may be indicative of his lack of credibility and willingness to be untruthful. The Tribunal accepts that some of these may be characterised as misunderstandings or misstatements and the Tribunal places no weight on these. Other evidence from the Applicant is, in the Tribunal’s view, more problematic. For example,
(a)In one of his declarations the Applicant stated that he had no contact with his ex-girlfriend since the court date. In another declaration, the Applicant referred to having made a phone call to his ex-girlfriend after she called his wife.
The Police Facts Sheet indicates that following the 2014 incident resulting in the conviction, the Applicant had made numerous calls to his girlfriend and her mother and had been given a warning not to use the phone to harass them. In oral evidence, the Applicant denied that he had harassed his girlfriend following the incident and he denied ever making contact with her mother. The Applicant’s representative submits that the information in the Police Facts Sheets is mere hearsay and should not be given any weight, but the Tribunal does not accept that is so in the circumstances where the police had called the applicant and warned him against using the mobile phone for harassment.
(c)The Applicant told the Tribunal that he and his partner want to join community organisations that support women in domestic violence situation. The Tribunal does not accept that evidence, given that the Applicant had shown no interest in doing so in his lengthy period of residence in Australia and the fact that he made no mention of that claimed intention even as recently as his January 2023 declaration. The representative submits that the Applicant referred to only recently having that conversation with his current partner and she was not asked to corroborate that evidence. However, the Tribunal is mindful that this January 2023 declaration was made very recently (where the Applicant made no mention of his plans). He was given the opportunity to present further evidence to the Tribunal since that time but failed to mention any such plans. Therefore, the Tribunal has formed the view that the Applicant’s evidence about his plan is a recent invention, and the Applicant has not been truthful in his intention to be involved in such activities.
(d)The Tribunal also accepts the Respondent’s classification of some of the Applicant’s evidence may be characterised as implausible. For instance, the Tribunal considers it implausible that the Applicant would be so angry in the 2016 incident as to smash the plate and his computer but then ‘gently’ move his wife aside.
In the Tribunal’s view, these discrepancies indicate that the Applicant is not a person of credibility and that he is willing to state whatever he believes would be of benefit to him. The Tribunal does not consider that the Applicant’s lack of credibility equates to propensity to commit criminal offences. However, the Applicant’s willingness to be untruthful, as well as his immigration history demonstrate, in the Tribunal’s view, his general disregard for the law. Together, these factors are relevant in assessing the risk of future reoffending.
The Applicant repeatedly told the Tribunal that he is now a different person and is more mature and would react differently. The Tribunal acknowledges that the Applicant is now in a stable relationship, has parental responsibilities and contact with his two children. There are also other protective factors, such as his ongoing relationship and expectation of the birth of his third child, employment (the Tribunal has been provided with the applicant’s tax returns for several years, an employment reference and other materials) and the Applicant’s claimed commitment to his faith. The Tribunal is mindful that at least some of these protective factors had been in place in the past when the Applicant did engage in what may be described as aggressive behaviour.
Having regard to all the circumstances, the Tribunal has formed the view that there remains a risk of the Applicant engaging in criminal conduct (domestic violence) in the future. Mr Watson-Munro refers in his written reports to the risk being low, but it is apparent from his oral evidence that he was not provided with the full details regarding the applicant’s past conduct when formulating his opinion. In oral evidence, after being provided with further detailed information about the Applicant’s past conduct (which the applicant has conceded), Mr Watson-Munro reviewed his assessment of risk and identified future risk as being ‘moderate trending to low’.
The Tribunal has formed the view that the risk of reoffending remains, given the Applicant’s lack of insight into his conduct, his attempts to minimise the nature of his past conduct and the fact that the Applicant blames others for the circumstances for his past conduct. One of the most important factors in this matter, is the Applicants lack of engagement in any formal rehabilitation programs or intervention that may have equipped him with the skills to deal with difficult situations and control his anger. Additionally, the Tribunal also does not consider the risk of reoffending as being high. This is because the Tribunal accepts that the Applicant’s present circumstances, including his stable relationship, parental responsibilities, and the risk of losing the Australian visa if he was to commit a serious offence in the future, would act as a strong disincentive to engage in criminal conduct.
Nevertheless, the Tribunal has formed the view that this risk is a real risk. The repeated nature of the past conduct that seems to involve inappropriate or inadequate conflict resolution mechanisms employed by the Applicant point to the possibility of such conduct reoccurring. That assessment is not inconsistent with the assessment of Mr Watson-Munro, who states in his written reports that the risk of the Applicant reoffending is low (rather than non-existent) and in his oral evidence that risk has been revised to moderate trending to low. Notably, Mr Watson-Munro has also noted that there has been no intervention, psychological or anger management treatment since the first offending and he expressed the view that the absence of intervention is significant to assessing the prospects of future criminal conduct.
The Tribunal accepts that there are strong protective factors that would minimise the risk of the Applicant reoffending. However, the Tribunal is not satisfied that the Applicant has insight into his actions or that he genuinely understands the nature of his conduct and the effect of his actions may have on others. The Tribunal is not satisfied the Applicant now has a better ability and the skills to manage his temper and avoid conflict situations, which seem to have led to inappropriate behaviours in the past.
The Tribunal finds that if the Applicant would be allowed to remain in Australia, there remains a real and not an insignificant risk that he would engage in criminal conduct (such as domestic violence and/or property damage). The Tribunal finds that the Applicant does not pass the character test. The discretion to refuse to grant him the visa is thus enlivened.
EXERCISE OF DISCRETION
The Applicant submits, essentially, that he regrets his past conduct but that he is now a different person, is more mature and his circumstances are now different. The Applicant submits that he would react differently to stressors from others and would not reoffend. The Applicant submits that if discretion is enlivened, it should be exercised in his favour.
The Respondent submits, essentially, that the Applicant does not pass the character test, he has not shown genuine remorse for his conduct, has not been rehabilitated and that there remains an unacceptable risk of physical and psychological harm to others and an unacceptable risk to the community. The Respondent submits that these considerations must outweigh others.
The Tribunal’s reasons with regard to the considerations in Direction No. 90 are set out below.
Primary considerations
Protection of the Australian community
Sub-clause 8.1 of Direction No. 90 provides as follows:
Protection of the Australian community
2 When considering protection of the Australian community, decision-makers should keep in mind 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….
3 Decision-makers should also give consideration to:
the nature and seriousness of the non-citizen's conduct to date; and
the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal has considered the nature and seriousness of the Applicant’s conduct.
The Applicant was found guilty of the offence of common assault. No conviction was recorded, and the Tribunal is of the view that this may be indicative of the fact that the offending was considered to be at the lower end of seriousness. Nevertheless, the Tribunal considers any offence involving damage to another person’s property to be serious. The Applicant also concedes there were other incidents in which property was damaged. He submits that being angry or misogynistic is not an offence and while that is so, engaging in conduct that is intimidating is threatening may constitute an offence and may cause significant physical or emotional harm to others. The Tribunal is mindful that the 2016 incident involving the damage to the property, was also witnessed by the Applicants daughter. The damage to a child witnessing intimidation or threats between their parents may be significant.
The Tribunal’s assessment of the risk, should the Applicant commit further offences or engage in other serious conduct, is set out above. The Tribunal is of the view that there is considerable risk to the community, should the applicant engage in criminal behaviour. The Tribunal finds that this consideration weighs against the applicant.
Best interests of minor children
The Applicant has two minor children, who are both Australian citizens residing in Australia.
The Respondent submits that there would be no adverse impact on the children’s life in circumstances where the Applicant does not live with the children and the main parental role seems to be fulfilled by their mother. However, in his declaration the Applicant speaks of a close relationship between his current partner and his children and states that he cannot leave his children in Australia without a father figure. He states that he has been there for his children for every milestone and wants to continue that involvement. The Applicant notes that the mutual parenting plan shows that his ex-wife agrees that his presence is in the children’s best interests. This evidence is unchallenged.
In his report, Mr Watson-Munro refers to the Applicant reporting to having a strong and loving bond with his two children, whom he sees every week or every fortnight. The Applicant expressed his fear that in his absence, his children will be psychologically harmed.
The Tribunal does not accept the Respondent’s claim that the Applicant does not play a parental role in relation to his two children. The Applicant provided to the Tribunal a copy of the Parenting Plan dated 7 October 2021. It reflects the agreement between the Applicant and his ex-wife for their two children to live with their mother and for the applicant to spend time with the children two days a week and at other times as agreed. It is also agreed that if either party wishes to travel overseas with the children, they would need to take steps to obtain a court order to ensure their safe return. The Applicant’s evidence is that he does spend considerable time with the children and is involved in decision-making about their circumstances. That evidence has not been challenged. It cannot be said that the applicant does not have a parental role in the lives of their children, even if the children do not live with him on a daily basis.
The evidence before the Tribunal suggests that the Applicant has a strong relationship with his two children. The Tribunal has formed the view that it is in the best interests of the two minor children that the applicant should be permitted to remain in Australia and to continue to be involved in their lives. This consideration weighs heavily in favour of visa grant.
Whether the conduct engaged in constituteS family violence
The Applicant’s conviction was in relation to his girlfriend, and it is not apparent from the evidence before the Tribunal that she was a member of the Applicant’s family at the time of the incident. The Applicant’s evidence is that he decided to end the relationship by the time the incident took place. The Respondent submits that there had been a relationship of 18 months prior to the incident and that the girlfriend was not aware that the relationship ended shortly before the incident. That is not consistent, in the Tribunal’s view, with the Applicant’s evidence (which was not challenged) as the Applicant claimed the relationship ended and his girlfriend was aware of that and came to visit him to see if they could reconcile. The Tribunal accepts the Applicant’s evidence that by the time of the incident, the Applicant’s relationship with his girlfriend had ended. Thus, even on a generous construction of the term ‘member of the person’s family’, the Tribunal does not consider that the 2014 incident involving the girlfriend could be said to constitute family violence, given the nature of the Applicant’s relationship with his girlfriend at the time of the incident.
In relation to the other incidents involving the Applicant’s partner, the Tribunal acknowledges the Applicant had not been convicted of any further offences. However, during his oral evidence, he did admit to smashing a plate and a computer in the 2016 incident. This is in addition to taking his wife’s phone, in an effort to prevent her from contacting others. The Applicant also admits that in a later argument with his wife he had smashed perfume bottles. The Applicant argues that these incidents did not cause his wife to be fearful, but there is no evidence from the Applicant’s partner about the effect of these incidents on her. It is possible that during the incident of damage to property, his wife may have felt apprehensive and fearful. The Tribunal does view this incident as constituting family violence, therefore weighing against the Applicant.
The Tribunal has formed the view that the Applicant did commit family violence in relation to his spouse. This consideration weighs against the Applicant.
In the alternative, the Tribunal accepts the Respondent’s submission that if the above incidents did not constitute family violence, the Applicant’s conduct constituted violence towards another woman and that is serious contact. That would strongly favour the exercise of discretion to refuse to grant the visa even if it was determined that the Applicant did not commit family violence and if that consideration is neutral.
Expectations of the Australian community
Clause 8.4 of Direction No. 90 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Clause 5.2(3) of the Directions sets out the government’s view in relation to community expectations:
‘The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.’
In considering the expectations of the Australian community, the Tribunal has considered the nature of the offending conduct. The 2014 incident involved the Applicant causing damage to his girlfriend’s property. The Applicant denies he had engaged in aggressive behaviour towards his girlfriend or his wife. While the Tribunal does not consider the Applicant to be a truthful person when he describes the past events, the Tribunal has also decided that very limited weight, if any, can be placed on the reported information which has not been tested.
In the Tribunal’s view, the community would find offending against another person or offending causing damage to property to be serious. The Tribunal has formed the view that the community would expect that the Applicant’s conduct would result in him losing the opportunity to remain in Australia. However, the Tribunal is also of the view that the community may be somewhat sympathetic and unwilling to separate the Applicant from his two minor children, noting in particular that if the Applicant is not granted the visa, there is very little likelihood that he will be able to see his children in the near future. The Tribunal has formed the view that this consideration weighs moderately against the Applicant.
Other Considerations
International non-refoulement obligations
The Applicant submits that if he returns to Lebanon, he will be recognised as a foreigner, given the length of his residence overseas, and he would be perceived as being ‘made out of money’. The Applicant states that he would be attacked, and he believes that theft is increasing because of the poor economic situation in Lebanon.
In the Tribunal’s view, these claims, if true, would require consideration in relation to Australia’s non-refoulement obligations. However, the Applicant presented no evidence in support of these very limited and very generalised assertions and the Tribunal is not able to assess the veracity and the plausibility of these claims. The Tribunal does not accept on the evidence before it that these claims give rise to Australia’s protection obligations.
In his written evidence to the Tribunal, the Applicant claims that the non-refoulement claims do not arise in his case. In oral evidence, the Applicant also confirmed that he does not contend that Australia’s non-refoulement obligations are engaged, stating that the above claim is relevant in assessing the extent of impediment if removed rather than Australia’s protection obligations. In the circumstances, the Tribunal does not consider that Australia’s non-refoulement obligations arise in this case. This consideration is neutral.
Extent of impediments if removed
The applicant is 34 years of age and has lived the majority of his life in Lebanon. This means there would be no language and cultural barriers if he was to return to Lebanon. His parents and several siblings remain in Lebanon and the Applicant himself remains a citizen of Lebanon.
The Applicant states that he is the eldest of his siblings and provides financial support to his parents and siblings. He states that if he is forced to return to Lebanon, his family will have no one to support them financially. The Applicant submits that his father relies on the funds he provides to buy mediation. He states that if he is to return to Lebanon, his family will not be able to survive without his financial support and he would be in the same situation as them.
The Applicant refers to his wife’s condition and states that they rely on each other significantly. The Applicant provided to the Tribunal a number of medical reports relating to his partner. He states that his wife would not be able to accompany him to Lebanon where she had never lived, and he would not be able to afford to support her there. The Applicant provided to the Tribunal evidence of his partner’s pregnancy, with the expected date of delivery in October 2023. Ms Istanbouli’s evidence to the Tribunal is that she has a good relationship with her family, but she did not receive emotional or financial support from her parents and such support is provided by the Applicant.
The Tribunal accepts that, given the partner’s medical condition and ongoing pregnancy, her separation with the Applicant (a likely consequence of his visa cancellation) may cause significant hardship to his partner, given her particular circumstances.
The Applicant states that there is an informal agreement with his ex-wife about him seeing the children, but she does not cooperate after any argument, and he is concerned that she may not allow him to see the children. The Applicant states that he is considering obtaining a formal court order and plans to initiate family law proceedings when he has the funds to do so. The Tribunal accepts that the Applicant may not be able to do this if he is not allowed to remain in Australia and generally the Tribunal accepts that if the applicant is to depart Australia as a result of his visa being refused, the likelihood of him seeing his children (at least until they are older and able to travel independently) would be greatly reduced.
The Applicant claims that if he is to return to his home country, he may be targeted and harmed. As noted above, the Applicant presented no evidence to support these claims (even in the form of country reports) and the Tribunal does not accept on the limited evidence before it, that the Applicant would be targeted if he returns to Lebanon.
Nevertheless, the Tribunal accepts that there would be significant impediment to the Applicant, his present partner, and his children, as well as his family overseas, if the Applicant’s visa is not granted. The Tribunal finds that this consideration weighs heavily in favour of the visa being granted.
Impact on victims
There is no evidence before the Tribunal about the impact of the applicant’s conduct on the victim of the offence (the Applicant’s previous partner). The Tribunal is of the view that this consideration is neutral.
Links to the Australian community including the strength, nature, and duration of ties to Australia and impact on Australian business interests
The Applicant has been living in Australia since November 2009, for a period exceeding 13 years. The Applicant has a partner, and he states in his declaration that he cannot imagine life without her if he is forced to leave Australia. The Applicant’s partner Ms Istanbouli provided a declaration and oral evidence to the Tribunal. She refers to having a close relationship with the Applicant and the support he provides to her and her close relationship with the Applicant’s children. Ms Istanbouli states that she would be emotionally, mentally, and physically affected if the Applicant was to leave Australia and her health would rapidly decline. In oral evidence, she told the Tribunal that despite having a large family, she relies on the Applicant for emotional and other support. The Applicant’s two young children are in Australia and are Australian citizens.
The Applicant refers to his past long-term employment at a construction company as a machine operator. He provided a character reference from his employer. The Applicant states that his present visa does not allow him to work, but he intends to return to the same work if he is permitted to remain in Australia.
The Tribunal accepts that the Applicant has been living in Australia for over 13 years and has meaningful family and employment ties. The Tribunal finds that these factors weigh in favour of not exercising the discretion to refuse the visa.
CONCLUSION
The Tribunal has found that the Applicant does not pass the character test and that the discretion to refuse the visa is enlivened. In considering how to exercise the discretion, the Tribunal has considered the totality of the Applicant’s circumstances, noting that the considerations set out in Direction No. 90 are not exhaustive.
The Tribunal has formed the view that there remains a risk of the Applicant reoffending, but that risk is not a high risk. Additionally, the Tribunal has determined that should the Applicant reoffend, there may be considerable risk to the community. Additionally, the Tribunal has found that the protection of the Australian community and the expectations of the community weigh in favour of the discretion to refuse to grant the visa. However, in the circumstances of this case, the Tribunal has decided to give greater weight to the other considerations, such as the best interests of the Applicant’s minor children and the extent of impediment to the Applicant and his partner if he is removed from Australia.
For the reasons set out above, it is in the best interests of the Applicant’s children to retain their relationship and contact with the Applicant and it is in their best interests if the Applicant’s visa is not cancelled. The Tribunal gives this consideration significant weight in favour of the Applicant.
Furthermore, particular weight is placed on the fact that the Applicant has been living in Australia for a lengthy period exceeding 13 years and he seems to be well settled in this country. The evidence before the Tribunal is that the Applicant provides comfort and support to his current partner who is currently pregnant. The Tribunal is mindful that if the Applicant is not granted the visa, there is a real possibility that he will be unable to form a meaningful relationship with his newborn child. The Applicant’s settlement in Australia, the extent of impediment if removed and the hardship that would be caused to the Applicant and his partner, should the visa be refused, are factors that weigh strongly in favour of the Applicant. Overall, the Tribunal has decided, in the circumstances of this case, to give greatest weight to the factors that are against the exercise of discretion to refuse to grant the visa. Having regard to all the relevant circumstances, the Tribunal finds that the discretion to refuse the application under s 501 should not be exercised.
DECISION
The Tribunal sets aside the decision under review and substitutes it with a decision that the discretion to refuse the Applicant’s Class UK Partner (Temporary) visa under s 501 is not exercised.
I certify that the preceding 96 (ninety-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Raif.
.........................[SGD]..................................... Associate
Dated: 16 March 2023
Dates of hearing: 1 and 2 March 2023
Representatives for the Applicant: Ms A El Kady, Bardo Lawyers
Mr A Aleksov (counsel)
Representatives for the Respondent: Ms E Maker
Mr B Kaplan (counsel)
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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Remedies
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