FKQF and Minister for Home Affairs (Migration)
[2019] AATA 2712
•16 August 2019
FKQF and Minister for Home Affairs (Migration) [2019] AATA 2712 (16 August 2019)
Division:GENERAL DIVISION
File Number(s): 2018/6195
Re:FKQF
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:16 August 2019
Place:Sydney
The Tribunal sets aside the decision under review and remits it to the Respondent for reconsideration with a direction that the Applicant not be refused a visa under s 501(1) of the Migration Act 1958.
...........................[sgd].............................................
Chris Puplick AM, Senior Member
CATCHWORDS
MIGRATION – visa refusal on character grounds – failure to pass character test – substantial criminal record – whether the visa application should be refused – Ministerial Direction No. 79 – weighing of primary and other considerations – decision set aside and remitted with direction
LEGISLATION
Migration Act 1958
CASES
BFXK v Minister for Immigration and Border Protection [2018] AATA 886
CHFQ and Minister for Home Affairs (Migration) (2018) AATA 3858
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151
Do and Minister for Immigration and Border Protection [2016] AATA 390
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Falzon v Minister for Immigration and Border Protection [2018] HCA 2
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
KDSP and Minister for Immigration and Border Protection [2017] AATA 2169
Labi and Minister for Immigration and Border Protection [2016] AATA 316
LMYW and Minister for Immigration and Border Protection (Migration) [2016] AATA 936
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Immigration and Ethnic Affairs v Daniele [1981] 39 ALR 649
Minister for Immigration and Ethnic Affairs v Gungor [1982] 4 ALD 575
NBCM v Minister for Home Affairs [2019] FCA 1013
Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Re Drake and Minister for Immigration and Ethnic Affairs(No.2) (1979) 2 ALD 634
Re Gungor and Minister for Immigration and Ethnic Affairs [1980] 3 ALD 225
Shi v Migration Agents Registration Authority [2008] HCA 31
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Veen v R (No 2) (1988) 77 ALR 385
VKTT v Minister for Home Affairs [2019] FCA 1018
YNQY v Minister for Immigration and Border Protection [2017] FCA
SECONDARY MATERIALS
Direction No.79 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Chris Puplick AM, Senior Member
16 August 2019
FKQF seeks a review of a decision by the Delegate of the Minister (the Respondent) to refuse to grant his brother ‘MS’ (The Applicant) a Return (Residence) (Class BB) visa (the visa).
The Delegate’s decision was made on 25 September 2018[1] and notified to the Applicant the following day.[2] The application for review was lodged on 19 October 2018 and heard by the Tribunal on 8 August 2019.
[1] Section 37 Tribunal Documents at [17]-[22].
[2] Ibid at [8]-[9].
As the Applicant was in Germany at the time of the hearing without a valid Australian visa and unable to return to Australia, his testimony was given by telephone.
The Applicant’s case has been lodged and pursued, on his behalf, by his brother, FKQF, who appeared before the Tribunal.
LEGISLATIVE FRAMEWORK
The reviewable decision was made under section 501(1) of the Migration Act 1958 (Cth) (The Act) which provides as follows:
Refusal or cancellation of visa on character grounds
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.
The character test is set out in the relevant section of the Act at s501(6)
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)) …
The relevant part of the definition referred to in subsection 6(a) is found in section 7 as follows:
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
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
Subsection (12) of s 501 gives a definition of the word “sentence” to “include any form of determination of the punishment for an offence.” This is important because it means that the trigger-mechanism to enliven the provisions of this section is the actual fact of sentencing. A sentenced individual does not actually have to have been physically detained or incarcerated, it is the imposition of the sentence itself, not how it is served (eg by imprisonment, home detention or where suspended) which must be taken into account by the decision-maker.
Section 501(1) is cast in discretionary language. In the event of a visa applicant not satisfying the character test, the Minister may refuse the grant of the visa. This is in contrast to section 501 (3A) where the Minister must cancel a visa where the applicant fails the character test and is “serving a sentence of imprisonment on a full-time basis in a custodial institution”.
Nevertheless, in relation to this Applicant it is a matter of fact that he fails to meet the character test because of his 12 month sentence. The Applicant’s failure to meet the character test was not a matter challenged by the Applicant or on his behalf.
Section 500(1)(b) of the Act gives a refused applicant the right to seek a review of the Minister’s decision in which case the Tribunal is placed “in the shoes” of the original decision-maker and is required to hear evidence and determine the “correct or preferable” decision to be made, on the evidence before it, at the time of the hearing – in effect, hearing and determining the matter de novo.
The Tribunal’s duty is set out as follows:
“The Tribunal’s duty is to make the correct and preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.”[3]
“The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct and preferable one on the material before the Tribunal.”[4]
[3] Re Drake and Minister for Immigration and Ethnic Affairs(No.2) (1979) 2 ALD 634 at [640].
[4] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at, 11.
There may be material before the Tribunal which was not before the original decision-maker – if so, it must be taken into account.
“Davies J acknowledged that regard might be had to the decision of the primary decision-maker as part of the “material before the Tribunal”…….But ultimately, it was for the Tribunal to reach its own decision upon the relevant material, including any new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision. In effect, this was no more than a consequence of the Tribunal’s obligation to conduct a true merits review.”[5]
[5] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
The capacity of the Tribunal to take into account matters which were not before the original-decision maker assumes some significance in the consideration of the Tribunal’s reasons for decision.
THE APPLICANT’S PERSONAL AND VISA HISTORY
The Tribunal adopts the outline of the Applicant’s personal and visa history outline in its Statement of Facts, Issues and Contentions:
(5) The applicant is a 24 year old citizen of Germany who first arrived in Australia on 4 August 2000. On 2 June 2011, he was granted a Return (Residence) (Class BB) visa with a travel facility for five years, expiring on 2 June 2016. He failed to obtain a further visa, and upon his departure from Australia on 31 March 2018, the Return (Residence) (Class BB) visa ceased, leaving him with no visa to return. On 17 April 2018, the applicant lodged an application for the visa.
….
(7) On 7 August 2018, the applicant was advised of the intention to consider refusal of his visa application. This was on the basis that he had a substantial criminal record, and therefore failed the character test in subsection 501(6) of the Act. The applicant was invited to comment, which he responded to on 28 August 2018.
(8) On 26 September 2018, a delegate decided to refuse the applicant's visa application and on 19 October 2018, the applicant, through his representative, applied to the Tribunal for review of the decision.
THE APPLICANT’S CRIMINAL RECORD
The basis of the Delegate’s refusal to grant the application for the visa in question is predicated upon the failure of the Applicant to meet the character test required because of his substantial criminal record. That record is as follows[6]:
[6] National Police Certificate (26 May 2018) Section 37 Tribunal Documents at [45]-[46].
Court
Month/Year
Offence
Result
Liverpool Local Court
March 2018
Possess Prohibited Drug
Fined $600
Central Local Court
April 2017
Resist or Hinder Police Officer In The Execution Of Duty
Assault Officer In Execution Of Duty
Intimidate Police Officer In Execution Of Duty
On each charge: Intensive correction order for 10 months commencing 27/04/2017 concluding 26/02/2018 taking into account 4 months in custody
Liverpool Local Court
August 2016
Assault Police Officer In Execution Of Duty Cause Abh-T1
Imprisonment for 12 months. Sentence suspended on entering bond for 12 months.
Liverpool Local Court
August 2016
Resist Officer In Execution Of Duty-T2
Imprisonment for 12 months. Sentence suspended on entering bond for 12 months.
Liverpool Local Court
August 2016
Destroy Or Damage Property
Fined $800.
Liverpool Local Court
August 2016
Not Give Left Change Of Direction Signal (Exit Roundabout)
Fined $150
Liverpool Local Court
March 2016
Drive Vehicle
Recklessly/Furiously Or Speed/Manner Dangerous
(Call up) Community service order extended 8 months.
Liverpool Local Court
June 2015
Possess Prohibited Drug
Fined $900.
Liverpool Local Court
June 2015
Possess Prohibited Drug
Fined $600.
Parramatta Childrens Court
August 2014
Reckless Grievous Bodily Harm
To perform 100 hours community service order.
Parramatta Childrens Court
July 2014
Dishonestly Obtain Property By Deception (3 Charges)
On each charge: Convicted. Bond to be of good behaviour for 9 months.
Parramatta Childrens Court
July 2014
Reckless Grievous Bodily Harm
To perform 100 hours community service order.
Parramatta Childrens Court
May 2014
Robbery Affray
On each charge: Probation for 18 months.
Kogarah Local Court
May 2014
Drive Vehicle Recklessly/Furiously Or Speed/Manner Dangerous
(Call up) To perform 100 hours community service order. Licence disqualified for 12 months
Kogarah Local Court
May 2014
Exceed Speed Greater Than 45km/H
Fined $1,000. Licence disqualified for 6 months.
Campbelltown Childrens Court
October 2013
Break And Enter House Etc Steal Value Less Than Or Equal To $60,000
Bond to be of good behaviour for 18 months.
Bankstown Local Court
March 2013
Drive Vehicle
Recklessly/Furiously Or Speed/Manner Dangerous
Without conviction. Bond to be of good behaviour for 18 months.
Bankstown Local Court
November 2012
Not Comply P1 Restrictions On Passenger Under
Fined $200
MINISTERIAL DIRECTION 79[7]
[7] Direction No 79, Migration Act 1958, Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Apart from consideration of the various sections of the Act, the Tribunal, acting as the decision-maker in its own right, is required to have due regard to Directions issued from time to time by the Minister which are intended to guide decision-makers by requiring them to have reference and regard to statements of Government policy. In the current circumstances, the relevant Direction is Ministerial Direction 79 (the Direction) made on 20 December 2018 and commenced on 28 February 2019. At the time that the original application was made, a previous Direction (Ministerial Direction 65) was in place, but it is the superseding Direction 79 which must now be applied.
The relevant part of Direction 79 is Part B which itself has two sections.
Section 11 is headed “Primary considerations – visa applicants”. These are listed as:
(a)Protection of the Australian community from criminal and other serious conduct;
(b)The best interest of minor children in Australia ; and
(c)Expectations of the Australian community.
Section 12 is headed: “Other considerations – visa applicants” and it requires the decision-maker to take into account, where relevant, further factors, namely:
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims; and
(d)Impact on Australian business interests.
The Direction further elaborates on each of these primary and other considerations and is informed by a set of Principles set out in paragraph 6.3 of the Direction itself. Those need to be set out in full to inform the consideration of the various submissions to the Tribunal.
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege. Australia confers on non-citizens in the expectation that they are, and have been, law- abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
THE IMPOSED SENTENCE
Since Direction 79 requires the Tribunal to assess matters such as “the nature and seriousness of the non-citizen’s conduct to date” it is necessary to examine, not the fact of his conviction(s) but rather the nature of the offences committed, in order to make such an assessment.
The Tribunal is aware that any convictions themselves cannot be challenged or called into question by it, nor can the Tribunal go behind the convictions and re-examine matters de novo.[8]
[8] Minister for Immigration and Ethnic Affairs v Gungor [1982] 4 ALD 575 per Sheppard J at [596]; Minister for Immigration and Ethnic Affairs v Daniele [1981] 39 ALR 649.
In Daniele, the Federal Court outlined the limits of the Tribunal’s powers in this regard:
“The conviction is the genesis of the Minister's power to deport. There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However, such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant's criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial. Whether these circumstances and matters are susceptible of examination, and the extent of that inquiry, will vary from case to case. The matters which the Tribunal is called upon to determine are wider than and different from the questions which a trial judge and jury must determine”.[9]
[9]Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649 at [653] per Fisher and Lockhart JJ
These “wider and different” matters for determination require specifically, that the Tribunal’s task includes making assessments in relation to the considerations laid out in Direction No 79.
In HZCP[10] Bromberg J said:
Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
[10] HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 at [78].
The incident which led to the imposition of the custodial sentence in the Liverpool Local Court in August 2016 itself took place in November 2015. The Applicant, who was driving with a friend as a passenger, was pulled-over by the Police who state:
“The accused has approached the round-a-bout at the intersection and continued straight through failing to indicate with his left indicator his intention to leave the round-a-bout.”[11]
[11] Index to Respondent’s Evidence at [33].
The Applicant had apparently turned into a driveway in his own neighbourhood when actually approached by the Police and during what followed both his friend (the passenger) and several other people who were related to either of the men, including one of their fathers became involved in some sort of a melee.
It appears that when pulled-over, the Applicant became verbally abusive and this in turn led to an escalation where the Applicant pushed the Police officer “to the chest with both hands”. During what turned into a scuffle the Applicant damaged the Officer’s radio handset leading to him being placed under arrest. He resisted arrest and, according to the Police Report:
“(the accused) has taken hold of ….. with this right hand and taken hold of …. on the left pectoral and started to grab hold and dug his fingers into the area causing significant pain to the areas. He was told to let go several time but continued to do it squeezing harder and also stating, ‘I’m going to break your face in...”[12]
[12] Ibid at [34].
The Applicant was subsequently subdued by use of a police baton and OC spray during which time he made further verbal threats against the officers.
When the matter came to court, the Magistrate:
1.In relation to a charge of affray – dismissed the charge;
2.In relation to the offence of assault occasioning actual bodily harm found it made out;
3.In relation to the offence of resist police officer found it proven;
4.In relation to the offence of intimidate police officer – dismissed the charge;
5.In relation to the offence of offensive language – dismissed the charge;
6.In relation to the charge of malicious damage found it made out, and
7.In relation to the traffic offence of not give change of direction found it proven.[13]
[13] Supplementary Tribunal Documents at [207]-[208].
In sentencing, the Magistrate said:
“… I have considered the options in relation to it and you are not suitable for some community service work because you had some difficulty with them in the past for whatever reason. I am not of the view that it should go up to a full time custodial sentence at this point of time. I am happy to suspend the sentence but the bottom line is that you put your hands on a police officer in relation to it and the Supreme Court has said you can expect a gaol terms (sic). You put your hands on a police officer and effectively draw blood or break the skin, effectively gaol term is the only sentence that should be imposed. Simple as that.
… You were emotional at your friend. You had nothing wrong (sic). Your friend got out and all the rest of it, all you had to do was sit in that car and stay there. That is it, you would have copped a fine of a couple of hundred dollars for the ticket and then that is it. By you getting out it only makes the situation worse. Everybody else decides to join in. That is how it escalates.
In relation to the matter of assault occasioning I am of the view a custodial sentence is appropriate in all the circumstances……However in all of the circumstances I am prepared to suspend that term of imprisonment.
You are convicted. You are sentenced to a term of imprisonment of 12 months. That will be suspended upon your entering a bond to be of good behaviour for 12 months. There is no other condition in relation to that.”[14]
[14] Ibid at [210].
In addition a bond was imposed in relation to the resist police officer charge and fines were imposed for the malicious damage (to the radio handset) and traffic offences.
The Sentencing Magistrate mentioned previous difficulties with the Applicant in discharging previous community service obligations and these are outlined in a Pre-Sentence Report of August 2018[15] and in an application for revocation of the CSO on 2 April 2015.[16] These relate to the Applicant’s repeated failure to attend and what is described as his “recent unsatisfactory response to a Community Service Order.”[17]
[15] Ibid at [151].
[16] Ibid at [100]-[102].
[17] Ibid at [152].
On the other hand, the Applicant told the Tribunal that he had complied with all CSO obligations and in an Intensive Corrections Order Assessment Report dated 26 April 2017 the reviewing officer concludes that: “He (the Applicant) received a 100 hour community service order …. which he successfully completed after seeking an eight month extension.”[18]
[18] Ibid at [73].
OTHER OFFENCES
The Applicant has been before various courts on 18 occasions on some occasions facing multiple charges. Five of these charges relate to traffic offences, two of which were committed while the Applicant was a juvenile. Five or more[19] charges relate to offences dealing with break/entry, robbery or obtain property by deception. There is one assault charge and three related to drug offences.
[19] It is unclear how many charges were involved in relation to listed appearances in the Children’s Court in July 2014.
The other six relate to incidents involving confrontations between the Applicant and the Police, three of which were included in the matter where the Applicant was sentenced (see above). Apart from these six offences, all the others were committed while the Applicant was between 17 and 21 years of age.
There appears to be a history of bad blood between the Applicant and at least one police officer in particular.[20] A Police Risk Assessment Report states that, “The accused (the Applicant) has an extreme personal hatred of …. Senior Constable X.”[21] The Applicant in his oral testimony to the Tribunal told it that he regards this officer as having a set against him, having regularly harassed him and deliberately targeting him in November 2015 for what he regarded as a trivial offence of failing to signal his exiting a roundabout.
[20] Applicant’s Statement (Character Declaration Details request) at Section 37 Tribunal Documents [49].
[21] Supplementary Tribunal Documents at [128].
Similarly, the Applicant drew attention to what he perceives as on-going harassment by police citing incidents involving being stopped as the driver of a car because the police noticed a “faulty rear passenger break (sic) light”[22] which again led to an arrest for using offensive language; several incidents where police searched the Applicant and his car on suspicion that he had been smoking cannabis (with nothing found in those searches)[23] and one incident resulting from a serious fight with a family member (who was subject to an unprovoked physical assault by the Applicant and one of his other brothers) which resulted in both an AVO being issued together with a firearms prohibition order.[24] Similarly, the Police pulled-over the Applicant on 24 February 2018 and searched him, with the police report noting that his “family is well known for drug and anti-social offences”. Again, nothing was found.[25]
[22] Index to Respondent’s evidence at [40].
[23] Ibid at [40], [42], [43], [44], [46], [47].
[24] Ibid at [38].
[25] Ibid at [13].
The firearms order which was highlighted in submissions by the Respondent, when considered in context, appears less sinister than suggested by the Respondent. In brief, the representing brother was the legal owner of a firearm which he kept at his home. The Applicant lived in that home and the Police obtained an order prohibiting him from accessing that firearm.[26]
[26] Ibid at [39].
It is also clear that the Police regard the Applicant as a person “well known to police for serious offences”,[27] while the Applicant resorts to grossly offensive language virtually every time there is a contact or confrontation with Police officers and appears unable to contain or control his anger or behaviour.
[27] Ibid at [42].
The Tribunal takes particular note of three offences each of which inform its evaluation of the attitude taken by the Applicant to his responsibilities to obey and respect Australia’s laws.
Apart from the observations made already about the Applicant’s alleged failure to meet his community service obligations, there are also at least two instances of the Applicant breaching his bail conditions, in October 2016 and December 2016.[28] There was an earlier instance where some sort of warning about potential breach of bail was involved on 21 August 2016[29] and a redetermination of bail following a previous incident in November 2013.[30] It appears from the record that the Applicant spent approximately four months in jail (from December 2016 to April 2017) as a result of these breaches which appear to relate to failure to adhere to his curfew time.[31]
[28] Supplementary Tribunal Documents at [19]-[22].
[29] Ibid at [17]-[18].
[30] Section 37 Tribunal Documents at [134].
[31] Applicant’s Statement (Character Declaration Details request) at Section 37 Tribunal Documents [49].
The second matter of concern to the Tribunal is that while the Applicant has made numerous claims in his oral evidence that his period in jail has helped him to sort his life out, to get off drugs and to change his behaviour generally, he was nevertheless convicted of a further offence of possess a prohibited drug on 6 March 2018 that offence having taken place on 24 October 2017.[32]
[32] Section 37 Tribunal Documents at [140].
Finally there was a second serious incident (on 14 June 2016) involving a confrontation with the Police again arising from a vehicle (this time where the Applicant was the front seat passenger) being pulled-over by the Police to check whether or not it was being driven by a person suspected of having had their driver’s licence suspended. When the vehicle was stopped the Police noticed drug-use equipment (a bong) in the car and so told the passengers they would be searched, after first being handcuffed. It appears from the Police report that the Applicant resisted being handcuffed and that this led to him kicking the Police officer resulting in a further struggle which was only resolved when additional police officers arrived (including some by helicopter) and the Applicant was subdued. The Applicant is also alleged to have made a series of verbal threats to the officers concerned some of which were of a vile nature involving threats against the officer’s children. In his evidence to the Tribunal the Applicant strenuously denied making such threats.
This incident took place at a time when the Applicant knew that he would be coming before the court on similar charges arising from the November 2015 incident.
When the matter came to court on 27 April 2017 the Applicant was convicted of the offences of resisting police, assaulting an officer in the execution of their duty and intimidating an officer in the execution of their duty. On this occasion the court imposed, on each charge, a 10 months Intensive Corrections Order commencing 27 April 2017 and concluding on 26 February 2018 “taking into account 4 months in custody.”[33]
[33] Ibid at [139].
It is unfortunate that the Tribunal was not provided with a transcript of the sentencing remarks on that occasion as they may have elucidated why such a sentence was imposed having regard to the Applicant’s alleged record of (non-)compliance with ICOs and why a custodial sentence was not deemed appropriate.
EVIDENCE BEFORE THE TRIBUNAL
As noted above, the Applicant gave evidence by telephone from Germany. Unfortunately some of his answers were indistinct or hard to comprehend due to the quality of the telephone connection and it is often difficult to make assessments about witnesses when they are not physically before the Tribunal.
Applicant: The Applicant put it to the Tribunal that the principal causes of his offending were that he developed a pattern of youthful drug taking and had fallen in with bad company. He had worked consistently in Australia and completed the majority of his apprenticeship. He stated that he felt victimised by the Police and by one officer in particular and that the incident involving that officer on 19 November 2015 was a result of the officer seeking to “get even” with him because he had recently “won a case” about drug offences initiated by that officer. He described this incident as being “100% payback”. He characterised his offences as “relatively minor” or “minor and trivial” and committed when he was “a minor, young, naïve and did not anticipate the consequences it would have on my future.”[34]
[34] Applicant’s Statement (Character Declaration Details request) at Section 37 Tribunal Documents [50]-[51].
The Applicant submits that his offences were relatively minor “when the seriousness of the offence is weighed against ordinary community standards” and that this is “evidenced by the leniency of the sentence as I received suspended sentences, licence disqualification and fines.”[35]
[35] Ibid at [50].
He says that he completed the Traffic Offenders Program in 2013 and 2014 and sought “advice” about drug issues when he was in jail. He claims that he was in a relationship with a young woman for a period of some three years prior to June 2018, but that his intentions to get engaged were thwarted by his period of incarceration. This is somewhat at odds with his statements to Corrective Services officers compiling ICO (April 2017)[36] and Community Corrections Officers compiling a Pre-Sentencing report (August 2016)[37] reporting that he was single. The Applicant explains this discrepancy by characterising the relationship as an on/off one. Although this discrepancy was brought to the attention of the Tribunal by counsel for the Respondent, the Tribunal does not attach great weight to it.
[36] Supplementary Tribunal Documents at [73]
[37] Ibid at [151].
The Applicant claims that he feels that he is being “punished again” by not being allowed to return to Australia and that the only matter of concern for him now is to be re-united with his parents (for whom he claims some caring responsibility) and the members of his family who reside here: father, mother, two brothers, three sisters, five uncles, five aunts, four nephews, two nieces and 21 cousins.
The Applicant told the Tribunal that he accepts responsibility for his actions and while they may have been influenced by others he said: “I play the most role. I make my own mistakes. You are who you hang out with.”
The Applicant informed the Tribunal that he left Australia on 31 March 2018 not knowing that his Return Resident Visa issued in June 2011 had expired in June 2016 and that, as a consequence, he was not in possession of a visa authorising his return to Australia. He travelled to Lebanon to see his grandmother and stayed there some 7 months before heading to Germany to see his uncle. He stated that in Germany he had been able to obtain some limited employment (for about a month) but that this was difficult because he speaks no German. He also states that since he left Australia he has not used drugs, he exercises in the gym and elsewhere and has “never felt better”.
Applicant’s Father: The Applicant’s father indicated that he was aware of his son’s offending behaviour and that he had made serious efforts to correct him but that these efforts had come to nothing. The Tribunal was not impressed by his claim that without these efforts the Applicant “would have done more that he did.” He claimed that his son’s absence was causing real emotional and financial hardship for the family and that he, aged 57 years, was having to undertake extra work in order to earn enough money to send to the Applicant both in Lebanon and in Germany where he appeared unable to secure employment. His father had visited the Applicant in Germany (in September 2018) and stated that he found him changed for the better as a result of no longer being associated with his usual group of friends and acquaintances in Australia.
Applicant’s Mother: The Applicant’s mother indicated that her health had been greatly affected by her son’s absence[38] and that all she wanted was to have him back with her. She had visited him in Lebanon (in January 2019), travelling there on the advice of her general practitioner[39] and found that he “had changed 180 degrees” and was “a different person”.
[38] Supported by written statements from her general practitioner and clinical psychologist attachments to Applicant’s Statement of 26 July 2019.
[39] Statement of Dr M Hamad (dated 29 January 2019)
Applicant’s Elder Brother: This brother (not to be confused with the representing brother, FKQF) gave evidence to the effect that he had taken responsibility for the Applicant in terms of helping him to secure both an apprenticeship and employment at the place where he worked as an electrician. He told the Tribunal that he helped support the Applicant financially and had borrowed money to do so. He attested to noticing a major change in the Applicant after his brief period of incarceration and that after that period the Applicant had started to go to the gym, to look after himself better and ceased taking drugs. He characterised the Applicant as having ‘been sidetracked a bit (but that) he was a good worker.” He spoke of the Applicant’s role in supporting his parents and how it had increased as each of his siblings had married and started their own families.
Applicant’s Sister: She gave evidence of the impact which the Applicant had had on her two minor children (aged 8.5 and 7.5 years) and that he was the male role model for them following her divorce. In her written statement she said: “My boys absolutely adore him and there is a not a day that goes by that they don’t ask me when uncle … is coming back and I keep telling them he is on holidays and will be coming back soon.” [40] His sister reported that she had visited the Applicant while he was in jail and that she had noticed a significant difference in his behaviour following his release.
[40] Statement attached to Applicant’s Statement of 26 July 2019 (Sister’s statement undated).
Applicant’s previous Employer: He has been conducting a highly successful electrical business since 1997 and has employed over 300 people during that period. On the initiative of the Applicant’s elder brother, who had been a long-term employee, he employed the Applicant while he was undertaking his apprenticeship. He found him to be hardworking and industrious; never being involved in any difficulties or incidents at work and had no knowledge or indication that he ever used drugs. The Employer has loaned money to the family for the Applicant’s support and put it to the Tribunal strongly, that the Applicant should be given a second chance.
Other material: written letters of support were provided from the President of the Australian Islamic House (a Muslim charity based in Liverpool); the vice-president of the Al Mina Charitable Association (for whom the Applicant undertook charitable work supporting elderly and homeless clients); from the General Manager of Suncorp Electrical Pty Ltd (who referred to the Applicant’s determination to focus on work and family after his release from jail), together with a letter from Mr Paul Lynch MP (State Member for Liverpool) which was a testimonial to the good character of the Applicant’s father.
CONSIDERATION OF THE DIRECTION’S INDICIA
As noted above. Direction 79 (Part B section 11) sets out both three “primary” and four “other” matters which decision-makers must take into consideration.
It should be noted at the outset that although the four latter considerations are designated as “other” this does not mean in any sense that they are lesser.
As Colvin J has made clear in Suleiman that, “To treat the other considerations as secondary irrespective of its character in this particular case does not conform to the language of Direction 65.”[41] His Honour made it clear that the weight of “other” considerations could, in appropriate circumstances, overbear the weight of the primary considerations to the advantage of the Applicant.[42]
[41] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28]. As noted above Direction 65 was the predecessor of Direction 79 and the latter Direction is, in this respect, in exactly the same terms as the former.
[42] Ibid at [26].
This was made more explicit in CFHQ where Deputy President Redfern, referencing Suleiman stated:
“… factors set out in Direction 65 as ‘other considerations’ should be given appropriate weight, which may, in some cases, outweigh the primary considerations.”[43]
[43] CHFQ and Minister for Home Affairs (Migration) [2018] AATA 3858 at [88]. Also Minister for Home Affairs v HSKJ [2018] FCAFC 217.
Protection of the Australian community from criminal or other serious conduct
In considering this matter the Tribunal is instructed to have regard to the nature and seriousness of the Applicant’s conduct and the risk to the Australian community should the Applicant reoffend.
Furthermore, crimes against women or children are to be regarded as “very” serious regardless of any sentence imposed[44] and crimes against “government representatives or officials due to the position they hold”[45] (this includes police officers) are “serious”. The decision-maker should also have regard to the frequency of the offending and any increase in seriousness over time, together with the cumulative impact of repeated offending.[46]
[44] Direction 79 Part B 11.1.1 (b).
[45] Direction 79 Part B 11.1.1 (c).
[46] Direction 79 Part B 11.1.1 (g) and (h).
Risk assessment must take into account the Australian community’s low tolerance for criminal behaviour and the nature of harm that would result from reoffending behaviour on the part of an applicant. It is also accepted that the Direction itself “implicitly acknowledges the community is not completely intolerant of risk, rather, it will have regard to the nature of the character concerns or offences and make a reasonable judgment.”[47]
[47] Labi and Minister for Immigration and Border Protection [2016] AATA 316 at [60]; KDSP and Minister for Immigration and Border Protection [2017] AATA 2169 at [36].
It is beyond denial that the Applicant has a lengthy history of offending and that it has increased in seriousness over time, from minor traffic offences to assaults against police officers. There are however, no indications of any offences or acts of violence committed against women or minors. What is apparent is a lack of self-control on the part of the Applicant whether in relation to misuse of a motor vehicle and failure to obey the road rules, to the repeated offences involving drugs (including an offence after leaving jail), to failure to adhere to bail conditions and constant resort to the use of offensive language in encounters with the police.
The Tribunal does not accept the attempts by the Applicant to reduce his offences to the characterisation of being minor or trivial. Some of them may be, other clearly are not. Equally, attempts to blame bad company are unacceptable. Being “young and naïve” is no excuse. The Applicant’s family attempted to steer him in the right direction and he chose to ignore them.
It is obvious that the Applicant has trouble with the Police, and while he may think that they are deliberately targeting him, his response to them always appears to escalate the situation. This causes the Tribunal to have concerns about the prospect of the Applicant reoffending. The claims that he has changed substantially since release from jail are undermined by his being convicted of a further drug offence which was committed in October 2017[48] and before the court in March 2018 well after his release. The Tribunal does however take note of the professional assessment of a Senior Corrections Officer in preparing an Intensive Correction Order Assessment Report on the Applicant that he was assessed as having “a low/medium risk of re-offending.”[49]
[48] Index to Respondent’s evidence at [97].
[49] Supplementary Tribunal Documents at [74].
On this criterion the facts speak for themselves and they weigh against the Applicant.
The best interests of minor children in Australia
Both the Applicant and the Respondent in their formal statements to the Tribunal record that the Applicant “has no minor children.” Thereafter they do not discuss the matter further. There is no mention of any consideration, or even recognition, of this issue in the reasons given by the Delegate for the initial refusal of the visa.[50]
[50] Section 37 Tribunal Documents at [14] and [22].
The Act however does not require that the only minor children whose interest may be considered are those who are the biological children of the individual applicant. Provided the Tribunal accepts that they are “relevant” children then their best interests must be considered and each of them must be considered separately.[51]
[51] NBCM v Minister for Home Affairs [2019] FCA 1013 at [51]-[55] per Markovic J.
The Tribunal would equally have passed over the matter but for the written statement and oral testimony of the Applicant’s sister which was clearly presented to it. As noted above, the High Court has held that the Tribunal must take into account matters which are before it but which may not have been available to the original decision-maker.[52] That appears to be the case in this instance.
[52] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
In her written statement, the Applicant’s sister writes:
“(The Applicant) has had a big impact in my life not only to me but to my two children... My boys absolutely adore him there is not a day that goes by that they don’t ask me when uncle…. is coming back and I keep telling them his (sic) still on holidays he will be home soon!! I have been divorced for three years now so … to my children is a father figure he was always there when needed my boys looked at him as a role model after them adapting to a broken home and family. …was taken away from them as well it mentally and physically destroyed them! Especially my older son…he isn’t himself no more having a lot of problems with him at school teachers trying to figure out why he is acting so strange up until one day he turned to me and told me that he wants to go on the plane and live with uncle … that he no longer wants to see him over the phone that he wants him to take him to school and get a hair cut and soccer training. …leaving me and my children has broken us to pieces because we know his (sic) got so much potential so much to offer we know the … that is genuine and the big hearted person he is no words can describe how much we want him back home with us our life will make sense again.”[53]
[53] Statement attached to Applicant’s Statement of 26 July 2019 (statement undated).
This written statement was the basis for some questions asked by the Tribunal of the Applicant’s sister in which she elaborated on what she had written, outlined the regular contact of the Applicant with these minor children and stated that without him, “home doesn’t feel like home.”
In relation to assessing the best interests of minor children, Direction 79 requires the decision-maker to consider the nature and duration of the relationship and the extent to which the applicant plays a positive parental role in the future of the minor(s). It also indicates that “less weight generally (should) be given when the relationship is non-parental” or there have been long periods of absence in the relationship.[54]
[54] Direction 79 Part B 11.2 (4)(a) and (b).
The evidence given by the Applicant’s sister was not challenged by the Respondent and the Tribunal has no reason not to accept it at face value. In this instance this consideration must count in the Applicant’s favour.
The expectations of the Australian community
Dealing with the expectations of the Australian community is always a difficult task for the Tribunal. Community expectations change over time and they vary according to the circumstances of each case. The Tribunal expects that they would be more favourable to people who have learned from previous experiences of offending and have made serious attempts to get their lives back together and to take active steps for their own rehabilitation. On the other hand they would be less inclined to view favourably those who have committed particular types of offences, persisted in offending behaviour and failed to take control of their own lives and act responsibly.
The Direction itself gives only minimal guidance in the interpretation or application of this consideration. It states:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because of the nature of the character concerns or offences are such that the Australian community would expect the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.”[55]
[55] Direction 79 11.3(1).
This statement is replete with qualifications such as “may be appropriate”, or “unacceptable” risk and clearly leaves significant discretion in the hands of the decision-maker.
In cases such as YNQY and BFXK the Federal Court and this Tribunal have noted that this criterion starts off from a position of being, ipso facto and indeed, by intention, unfavourable to the applicant.[56] However as was stated in BFXK the degree of this unfavourability is to be assessed in relation to the individual circumstances of each applicant and each case.
[56] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76]; BFXK v Minister for Immigration and Border Protection [2018] AATA 886 at [126].
Deputy President Block outlined one of the inherent difficulties with this part of the Direction, saying it:
“is always difficult to interpret. It assumes (incorrectly) that there is an Australian community which thinks as one. The supporters of One Nation would have one view as regards immigration, and there is of course a very large diametrically opposed body of opinion in Australia. I construe this reference as being correctly made to middle-of-the-road reasonable members of the Australian community who do not hold extreme views one way or another. And I think that there is a further limiting factor and that is that one must import into that Australian community, knowledge of the evidence before me. ….. I believe that the Australian community, so informed, would expect me to interpret the Direction in a humane fashion.”[57]
[57] Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458.
Similarly Deputy President McCabe has stated:
“The third primary consideration is complicated by the fact the Direction does not give a clear indication of how a decision-maker might divine the expectations of the Australian community.”[58]
[58] LMYW and Minister for Immigration and Border Protection (Migration) [2016] AATA 936 at [54].
In his concluding remarks in this matter, the Deputy President, after reviewing the evidence of the contrition and rehabilitation of the applicant in question stated:
“In all the circumstances, I am not satisfied this consideration weighs against the exercise of the discretion. Indeed, it may actually weigh in favour of the exercise of the discretion.”[59]
[59] Ibid at [58].
In Murphy v Minister for Immigration and Border Protection[60], Senior Member P W Taylor SC wrote:
[58] When cl 13.3 is read as a whole, and applied in a context where all relevant considerations required to be taken into account (see cl 8(1)), it does point to the likelihood, but it does not dictate an inflexible conclusion, that community expectation will always call for non-revocation. Nor is to be taken as elevating community expectation to the status of a determinative consideration. It remains as a primary consideration, to which appropriate weight must be given. But what constitutes appropriate weight, and whether that weight is a determinative factor in the exercise of the revocation discretion, will depend on the totality of the relevant circumstances.”
[60] Murphy and Minister for Immigration and Border Protection [2018] AATA 750.
The Tribunal notes Deputy President Forgie’s comments in Rabino and Minister for Immigration and Border Protection that “the Principles are directed to whether the Australian community is prepared to give the person another opportunity to remain in Australia”.[61] Although this is a reference to the tests imposed in citizenship matters, it remains apposite when considering the way in which the Ministerial Directions in visa refusal cases should be considered.
[61] Rabino and Minister for Immigration and Border Protection [2016] AATA 999 at [68].
Deputy President McCabe in Do and Minister for Immigration and Border Protection[62] reflected on the question of second chances when he said that:
A decision-maker is, to some extent, required to guess at the community’s expectations… As I begin my deliberations, I assume the Australian community would be fair-minded and mature… The community would certainly not be vengeful… after all: we are a nation built on second chances.
[62] Do and Minister for Immigration and Border Protection [2016] AATA 390 at [23].
The Respondent urged the Tribunal to weigh this consideration against the Applicant on the basis that:
“Given the violent nature of the applicant’s offences, involving drugs, reckless driving and police officers in the execution of their duty, the Minister contends that the Australian community would expect that the applicant should not hold a visa.”[63]
[63] Respondent’s Statement of Facts, Issues and Contentions at [29].
The Applicant contends that he has made attempts to “rehabilitate himself. He acknowledges that he has not lived a good life to date and, indeed, he is ashamed of himself.” Further, he submits that he has managed to stay out of trouble since his last conviction in 2018 and that he has “reflect(ed) on his past behaviours and he has managed to do that is a credit to the maturity and understanding of himself that he has come to through his efforts in recent years.”[64]
[64] Applicant’s Statement in Reply (26 July 2019).
The Applicant does not appear to have taken heed of his family’s warnings; he breached his bail conditions; he repeated traffic offences; he displayed consistently aggressive behaviour towards police; despite his claims of change he reoffended with further drug possession after his release from jail; there is no indication that he has sought or undertaken any formal rehabilitation programmes and his lack of more recent offending may simply be due to his absence from Australia.
On balance the Tribunal assesses that this consideration weighs against the Applicant.
Other considerations
There are four “other” considerations which must be taken into account as noted above. Three of these may be dealt with summarily as they do not appear to have any significant relevance:
(a)International non-refoulement obligations simply do not arise;
(b)Impact on victims: although members of the Police Force have been impacted by the Applicant’s behaviour and offending, the way in which the Direction is presented does not seem to enliven any particular consideration under this heading[65] and the Respondent conceded it was not a relevant consideration.[66]
(c)Impact on Australian business interests: although the Applicant presented some evidence in relation to the desire of the Applicant’s former employer to re-employ him, this does not amount to a demonstration of any impact upon Australian business interests which themselves (in terms of the Direction) must be related to where an employment link touches upon “the delivery of a major project or delivery of an important service in Australia.”[67]
[65] Direction 79 Part B 12.3
[66] Respondent’s Statement of Facts, Issues and Contentions at [30].
[67] Direction 79 Part B 12.4(1).
This leaves consideration of the “impact on family members”. The Direction requires consideration of the impact upon those people who are “immediate family members”, being either citizens or people with permanent residency or the right to remain in Australia.[68] As noted above this encompasses parents, several siblings and numerous nephews, nieces, aunts, uncles and cousins.
[68] Direction 79 Part B 12.2(1).
There is no doubt that the impact on several members of the family would be significant. His mother in particular speaks of her dependency on him and his father speaks of having to undertake additional work (and borrow money) to help support the Applicant overseas. His siblings gave evidence as to the impact on their lives of his absence – both in terms of their shouldering additional responsibilities for their parents; borrowing money on his behalf and missing a male role-model for his minor nephews.
The Tribunal does not question the sincerity of the family members in wanting the Applicant to return and the genuine nature of their description of the impact of his current absence. In his submission the Minister concedes that this is a consideration to be weighed in favour of the Applicant.[69]
[69] Respondent’s Statement of Facts, Issus and Contentions at [32].
The Tribunal notes that the Applicant advanced a number of strong arguments about the impact which denial of a visa and the consequence that the Applicant will continue to reside overseas (presumably in Germany where he was born and is a citizen but speaks no German and has a limited number of family members; or in Lebanon where he has some family support and some language capacity). These would constitute valid matters of concern were this an application covered by Part A of Direction 79 relating to existing visa holders. Subsection 10 of Part A includes consideration of the “extent of impediments if removed”. However in consideration of a visa refusal (under Part B of Subsection 10) this is not a matter which the Tribunal is empowered or able to take into account.
THE CALCULUS
In Contreras the Federal Court characterised the weighing of multiple elements that the Tribunal must consider as being a “calculus”.[70]
[70] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].
Here the calculus is in the relative weight to be given to the factors of protection of the Australian community and respect for its expectations which weigh against the Applicant compared with those of the best interest of the minor children and the impact on immediate family which weigh in his favour.
In this respect, “the choice of, and weight to be given to competing information is a matter for the Tribunal”[71] provided it gives proper consideration to all mandatory elements.
[71] VKTT v Minister for Home Affairs [2019] FCA 1018 at [44] per Burley J.
The Applicant has claimed that he is being “punished a second time” for his offences by being refused re-entry to Australia which has been his home for some 18 years and where all his immediate family reside. His view is that he has “served his time” and hence should suffer no further disadvantage or penalty arising from his previous offence. The Tribunal does not accept that the refusal of a visa constitutes some form of “punishment”. It may well have been had the only reason for the visa cancellation been to deter people in similar circumstances as outlined in Gungor.[72] However this visa refusal arises as a direct result of the operations of the Act which require the Minister to take certain action after an applicant has been relevantly sentenced.[73] As such no taint of improper double punishment arises.
[72] Re Gungor and Minister for Immigration and Ethnic Affairs [1980] 3 ALD 225 at [232].
[73] See Falzon v Minister for Immigration and Border Protection [2018] HCA 2 at [63]; Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 at [76]-[77].
However, the consequences which have been suffered by the Applicant and which he has caused to be suffered by members of his family may well act as a deterrent against the Applicant committing further offences. Should he return to Australia and should he commit further offences leading to the imposition of a sentence of twelve months or more then, being a non-citizen he will be subject to the cancellation of his visa and, in those circumstances may well find the barriers to its revocation insuperable. In this respect the deterrent component of his punishment[74] may well have proved to be effective.
[74] Veen v R (No 2) (1988) 77 ALR 385 at [393].
The Tribunal gives some weight to this consideration as a countervailing element in assessing he Applicant’s likelihood of reoffending. In his original Character Declaration, the Applicant stated that, in relation to his behaviour he “did not anticipate the consequences it would have on my future.”[75] The Tribunal believes that it is safe to assume that he now does.
[75] Section 37 Tribunal Documents at [50].
Without impugning the sentence handed to the Applicant, the Tribunal takes note of the Sentencing Magistrates’ comments that, in effect, the sentence was one mandated for the offence by the Supreme Court and that he personally was “happy” to suspend it. It also notes that when the resist and assault police charges (from the incident on 14 June 2016) were before the Court in April 2017, and given that the Court had the offender’s record before it (as can be seen by its reference to the time spent in custody), it nevertheless chose to impose only Intensive Corrections Orders rather than a custodial sentence.
Apart from the incidents with the Police which have been described above, the only evidence in the Applicant’s extensive police record which involves acts of violence is one reported to involve another brother as “co-accused” and a “first cousin” as “the victim”.[76] However, it appears that when this matter came to court on 29 April 2016 the charges were withdrawn.[77]
[76] Index to Respondent’s evidence at [38].
[77] Section 37 Tribunal Documents at [136].
Without minimising the seriousness of repeat offending behaviour the Tribunal does accept that each of the individual offences committed by the Applicant was low on the scale of violence or seriousness.[78] All of his drug offences appear to involve personal use and none relate to trafficking or supply. The Pre-Sentence Report of 9 August 2016 states that “the offender does not appear to have any criminogenic needs that can be addressed at this time.”[79]
[78] The Applicant’s description of the events leading to the charges of reckless grievous bodily harm which occurred on in December 2012 and were heard in the Parramatta Children’s Court in July and August 2014 suggest that this was a matter of a brawl rather than a planned assault. The charges resulted in the imposition of community service orders.
[79] Supplementary Tribunal Documents at [151].
Of greater seriousness are the repeat traffic offences which were of a nature as to put other road users and pedestrians at risk despite the Applicant seeking to claim credit for having completed the Traffic Offenders Program on at least two occasions.[80]
[80] Section 37 Tribunal Documents at [50].
These considerations lead the Tribunal to assess that the weight to be given to the Primary Considerations of protection of the Australian community and the expectations of that community should be at only a mid-range level. They certainly weigh against the Applicant but not so far as to outweigh the other considerations, and certainly not fatally so.
The Tribunal accepts the evidence from the Applicant’s sister in relation to the impact that the Applicant’s absence has had on, and the role that he has played in, her life and her children’s development, especially in the three years since her divorce. In relation to each of the minor nephews, the Tribunal accepts that it would be in their best interest for the Applicant to be granted a visa and given the opportunity to play some role in their lives as a male role model consistent with the evidence given by his sister. This of course presupposes that he has genuinely changed and that his offending behaviour will not be repeated.
The Tribunal is in no doubt that the Applicant’s extensive immediate and extended family has suffered as a result of his being unable to return to Australia. It accepts the medical evidence submitted in relation to the impact which this separation has had on the mental health of his mother, although noting that at one stage she was able to travel to Lebanon to spend some time with him. It accepts that his father and brother have had to undertake additional work and to borrow money to support the Applicant overseas and to meet other costs associated with these proceedings.
The Tribunal gives significant weight to these considerations, one designated as “Primary” and the other as “Other” – with the repeated acknowledgement that “other” does not imply “lesser”. Parliament clearly intended that individual personal ties and family interests are matters which must be given due regard and if necessary, balanced against wider community expectations and interests.
In the opinion of the Tribunal the weight to be given to the considerations of the best interests of minor children and the impact of the visa refusal on the family members is far greater than that to be given to the other considerations identified and taken into account.
The balance of the calculus is in favour of the Applicant.
DECISION
The Tribunal sets aside the decision under review and remits it to the Respondent for reconsideration with a direction that the Applicant not be refused a visa under s 501(1) of the Migration Act 1958.
I certify that the preceding 115 (one hundred and fifteen) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
............................[sgd]............................................
Associate
Dated: 16 August 2019
Date(s) of hearing: 8 August 2019 Applicant: In person Solicitors for the Respondent: Ms C Campbell, Minter Ellison
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