FVHQ and Minister for Immigration and Citizenship

[2010] AATA 1032

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1032

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/3772

GENERAL ADMINISTRATIVE DIVISION        )

Re             FVHQ

Applicant

AndMinister for Immigration and Citizenship

Respondent

DECISION

TribunalMr R P Handley, Deputy President

Date21 December 2010

PlaceSydney

DecisionThe Tribunal sets aside the decision under review and remits the matter to the Minister with the direction that the visa applicant passes the character test.

.

………………[sgd]……………...

Mr R P Handley
  Deputy President

CATCHWORDS

IMMIGRATION – visa refusal – character test – association with group or organisation involved in criminal conduct - Direction 41 – primary considerations – protection of the Australian community – best interests of the child - decision under review set aside

RELEVANT ACT

Migration Act 1958 (Cth): ss 499, 501

CITATIONS

Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414; (2007) 99 ALD 443; (2007) 243 ALR 606; [2007] FCAFC 203

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321; [1999] FCA 1277

OTHER AUTHORITIES

Direction No 21: Visa Refusal and Cancellation under s 501 of the Migration Act 1958

Direction [no.41] – Visa Refusal and Cancellation under s 501

International Covenant on Civil and Political Rights International Covenant on Civil and Political Rights, General Assembly (Opened for signature 16 December 1966) 999 UNTS 171 art 23(1) (entered into force 23 March 1976)

REASONS FOR DECISION

21 December 2010 Mr RP Handley, Deputy President

1.      FVHQ (‘Mrs F’) has applied for the review of a decision to refuse to grant her husband, ‘Mr F’, a partner visa on the ground that he is not of good character because of his association with the Khedamat-e Etelea’at-e Dawlati (KhAD), the former State Intelligence Service in Afghanistan, which is known to have been involved in criminal conduct.

Background

2.      Mr F was born in Afghanistan in 1962 and is aged 48.  He and Mrs F, who was also born in Afghanistan, were married in Kabul in 1983.  They have six children: five born in Afghanistan between 1986 and 1998, and one born in Australia in 2007.

3.      Mr F states that in 1981, at the age of 19, he commenced employment as a clerk in the logistics branch of the KhAD in Kabul.  This branch was responsible for personnel and supplies.  The position was arranged by his father to avoid Mr F being conscripted into the army.  Afghanistan had been controlled by the USSR since 1979, and conscription into the army usually meant having to fight on the frontline against resistance to the Soviet occupation mounted by various local ethnic groups.  The army often suffered heavy casualties in such fighting. 

4.      The KhAD was established in 1980 and became Wazarat-e Amaniat-e Dowlati (WAD), the Ministry of State Security, in 1986.  In about July 1985, Mr F transferred to another position in the KhAD in the presidential bodyguard where he served as a security guard.  He continued working in this position until early 1992 towards the end of the presidency of Dr Najibullah, who resigned in April 1992.  Mr F subsequently worked for an Afghan Government organisation resettling returning Afghans but, after Kabul was captured by the Taliban in September 1996, this work ceased and he conducted a small money changing business.

5.      In late 2000, Mr F was detained by the Taliban.  However, he escaped from custody by bribing a guard and, with financial help from his father-in-law, he escaped to Pakistan and from there travelled to Europe.  Eventually, he arrived in the United Kingdom (UK) where, in March 2001, he sought protection as a refugee.  While his application for refugee status was unsuccessful, he was granted exceptional leave to enter the UK and, in March 2007, was granted British citizenship. 

6.      After leaving Afghanistan, Mr F lost contact with his family.  Mrs F states that a few weeks after her husband was arrested, she and their five children escaped to Pakistan where they sought assistance from the United Nations High Commission for Refugees (UNHCR).  In June 2002, Mrs F and the children were granted subclass 204 visas allowing them to enter Australia where they arrived in late July 2002.  On 18 October 2004, they were granted Australian citizenship.

7.      Having lost contact with each other, Mr F and his wife separately made enquiries about the other’s whereabouts and eventually re-established contact in December 2004.  Mrs F and their children had flown to the UK on 22 November 2004 to try and locate Mr F, about whom they had had some news through former neighbours in Afghanistan, but they were refused entry on the grounds that they lacked sufficient funds to support themselves and because they did not have Mr F’s address.  They therefore had to return to Australia.  Mrs F travelled to the UK again on 10 April 2006, this time accompanied only by their youngest daughter, and they were permitted entry.  They stayed with Mr F for about seven weeks returning to Australia on 10 June 2006.  In January 2007, Mrs F gave birth to their son, who is also an Australian citizen, in Sydney.

8.      In June 2008, Mr F and his wife and four of their children met in Afghanistan and spent two months together there.  Otherwise, Mr F has continued to live in the UK and Mrs F has continued to live in Australia.  They maintain contact by telephone.  Mr F works as a minicab driver in London.  He told the Tribunal that there are other Afghans living in London, but the fact that he worked for KhAD has never caused him any problems.

9.      On 9 June 2005, Mr F lodged a combined Partner (Provisional) (Class UF) and Partner (Migrant) (Class BC) visa application at the Australian High Commission in London.  He was interviewed at the High Commission on 6 December 2005.  On 26 May 2006, the Department gave Mr F’s solicitor notice of an intention to consider refusal of Mr F’s visa application and inviting submissions.  Further submissions were invited by letter dated 2 March 2007.  Mr F was interviewed again at the Australian High Commission in London on 3 April 2009.  On 12 June 2009, a delegate of the Minister decided to refuse Mr F’s visa application for the reasons stated in a letter to Mr F dated 21 July 2009.  On 13 August 2009, Mrs F lodged an application for a review of this decision with the Tribunal.

RELEVANT LAW AND POLICY

10. Section 501(1) of the Migration Act 1958 (the Act) provides that 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”. Section 501(6) provides relevantly that a person does not pass the character test if:

(b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; …

11. Section 499 empowers the Minister to give written directions to a person or body having functions under the Act about the performance of those functions or the exercise of powers under the Act, and the person or body must comply with such directions. At the time of the decision to refuse Mr F’s visa application (12 June 2009), the relevant direction was Direction No 21, Visa Refusal and Cancellation under s 501 of the Migration Act 1958. A new direction, Direction [no.41] – Visa Refusal and Cancellation under s 501 (Direction No 41), has since replaced Direction No 21, commencing on 15 June 2009.  The Tribunal must also comply with this Direction.

12.     Direction No 41 states (paragraph 7(1)) that a visa may be refused if the person does not satisfy the Minister that the person passes the character test. 

13.     Paragraphs 7.2 states:

(1) A person will not pass the character test if the person has or has had an association as defined in paragraph 6(1) of the Direction.

…

(2) In establishing association, the following factors are to be considered:

(a) the nature of the association;

(b) the degree and frequency of association the person had or has with the individual, group or association; and

(c) the duration of the association.

(3) Subject to paragraph 7.2(2) of this Direction, an assessment of whether the person was sympathetic with, or supportive of, or involved in the criminal conduct of the person, group or organisation is required – mere knowledge of the criminality of the associate is not, in itself, sufficient to establish association.  In order to not pass the character test on this ground, the association must have some negative bearing upon the person’s character.

14.     ‘Association’ is defined in paragraph 6(1) as follows:

association is an association with someone else, or with a group or organisation, whom the decision-maker reasonably suspects has been, or is, involved in criminal conduct

15.     If a person does not pass the character test, consideration should be given to whether to exercise the discretion to refuse or cancel a visa having regard to the particular circumstances of the case.  Part B of Direction No 41 sets out a number of primary considerations that decision-makers must take into account in every case and also a number of other considerations that decision-makers should take into account where relevant, referred to below.  Generally, in accordance with paragraph 11(2), other considerations should be given less weight than the primary considerations.

16.     The primary considerations in Direction No 41 are set out in paragraph 10(1):

10.The primary considerations

(1)In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:

(a)   the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;

(b)   whether the person was a minor when they began living in Australia;

(c)   the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and

(d)   relevant international obligations, including but not limited to:

(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and

(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

17.     These considerations are elaborated on by a range of factors to which regard must be had. 

Does Mr F pass the ‘character test’?

18.     The first issue for the Tribunal to determine is whether Mr F passes the ‘character test’.  As stated above, the Tribunal must comply with Direction No 41 in making its decision and, relevantly, consider the matters referred to in paragraph 7.2.

19.     In Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414; (2007) 99 ALD 443; [2007] FCAFC 203 (Haneef), at [130], the Full Federal Court, in a joint judgment, said, at [127]:

… The use of the term "character test" itself suggests a legislative purpose directed to the exclusion or removal from Australia of people whose character, a reference to their enduring moral qualities, is at least questionable. Moreover, the Minister’s Second Reading Speech (as noted at [95] above) suggests that the fundamental aim was to deal with persons not of good character, also pointing to the need for some connection between an association and bad character, even if the connection were speculative. Most of the elements of the test set out in s 501(6) are plainly consistent with that purpose.

20.     In Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321; [1999] FCA 1277 (Goldie), at [8], the Full Federal Court, in a joint judgment, said:

The concept of "good character" in s 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry.

21.     The Minister contends that Mr F does not pass the character test because of his association with the KhAD, “a repressive regime which is commonly known to have committed atrocities” and, therefore, criminal behaviour.  Mr F worked for the KhAD for a period of about 10 years, rising to the rank of ‘Jag Turan’ (Senior Captain).  While initially he worked as a clerk in the logistics branch, for about 8 years he worked as a security guard in the security/protection branch, providing security/protection for the President and senior government officials and their families.  The Minister contends Mr F knew of the criminal activities in which KhAD was involved.

22.     In Haneef, the Court said, at [130]:

Having regard to its ordinary meaning, the context in which it appears and the legislative purpose, we conclude that the association to which s 501(6)(b) refers is an association involving some sympathy with, or support for, or involvement in, the criminal conduct of the person, group or organisation. The association must be such as to have some bearing upon the person’s character. It is, of course, not necessary, to enliven the Minister’s discretion to cancel the visa, that the Minister be satisfied that such an association actually exists. It is enough for the purposes of s 501(6) that the Minister reasonably suspects that the visa holder has such an association with someone else or a group or organisation which the Minister reasonably suspects has been or is involved in criminal conduct.

23. Thus, for the purposes of the character test and s 501(6)(b), the Minister must reasonably suspect that the person has an association involving either (1) some sympathy with, or (2) support for, or (3) involvement with someone else or a group or organisation whom the Minister reasonably suspects has been or is involved in criminal conduct. Further, such an association must have some bearing upon the person’s character in terms of their enduring moral qualities.

24.     Mr F’s evidence is that he worked for KhAD between 1981 and early 1992, at first as a clerk in the logistics branch performing clerical work such as arranging supplies and then, from July 1985, as a security guard in the safety and security department protecting the president and senior government officials and their families.  During his first year of working for the KhAD, he studied part-time at Kabul University. 

25.     In a statutory declaration dated 13 May 2010, Mr F said his father, who worked for the Ministry for Health and Social Services in Kabul, asked a friend who was a manager for the KhAD and knew Mr F was an only son, whether there were any vacancies there.  A position in the KhAD would avoid conscription into the military and being sent to fight on the frontline.  Military service was compulsory for men aged 18 and over.  Mr F said he knew of other families who were similarly able to arrange for their sons to work for the government to avoid them having “to go to the war”.  After serving in the KhAD for eight years, there was no further compulsion to undertake military service.

26.     In oral evidence by telephone from the UK, Mr F said conscripts were required to serve two terms of four years, a total of eight years with a break of one year between the two terms.  

27.     When Mr F commenced work in the logistics branch he did not initially have a rank, but about two years after joining the KhAD, he was appointed to the rank of ‘Dreyem Bridman’ (Third Lieutenant).  Thereafter while working in the KhAD, he was routinely promoted to ‘Doham Bridman’ (Second Lieutenant), ‘Lomrai Bridman’ (Lieutenant), ‘Turan’ (Captain,) in about 1986, and then to the rank of ‘Jag Turan’ (Senior Captain) in about 1989.  

28.     Mr F acknowledged that he could have been relocated within the KhAD at any time or even sent to serve in the military.  However, he stated that service in the KhAD essentially precluded this.

29.     Mr F said his duties in the safety and security department included providing security for the president and senior government officials and their families: maintaining security in areas where they travelled locally, for example, to the airport, to hotels, to meetings, conferences and other formal occasions, and in the case of their families, providing security when their children were driven to school, following the car in which the children were being driven.  Mr F stated that he travelled outside Kabul in the course of his duties on only two occasions, one being for the day only.  He said he was never physically close to the president or other officials, usually being posted outside doors, at the perimeter of buildings or alongside routes being travelled.  He was part of a group of between about five and 25, depending on the duties to be performed, with greater numbers during national celebrations and religious festivals.

30.     Mr F said when he was first transferred to the safety and security department in 1985, he was sent to Moscow with a group of 25 or 30 others for three months’ training in how to perform security duties, use a radio and keep fit.  He denied that his training had included the use of handcuffs and restraints.  He said his job was not to arrest or detain people.  While in Moscow, Mr F also obtained treatment for the eczema that affects his hands and causes bleeding.

31.     Mr F said that in his work as a security guard, he carried a pistol on a day-to-day basis and had access to a Kalashnikov rifle if needed – this was only very occasionally, for example, for major events.  His duties included providing security outside offices and alongside roads where government officials were travelling by car, and monitoring activity in the area and controlling those in the vicinity to ensure there was no threat.  During his time as a security guard, he never had to arrest anyone or report them to a more senior person and had never fired a weapon at anyone. 

32.     Mr F said he was never trained in torture or interrogation techniques and was never involved in interrogation or in standing guard outside places where interrogation was being undertaken.  Whilst he acknowledged that people were afraid of KhAD, he stated that neither he nor his section ever detained anybody and they were never involved in any torture or mistreatment of people.  He never harmed anyone - if he had done so, it would have put him at risk.  He was aware that KhAD were involved in interrogation involving abuse of prisoners, and while he did not agree with this, he was not in a position to do anything about it.  His was a low level position and those higher up would not have listened had he protested.  Moreover, he tried to avoid doing anything that would put him or his family at risk.

33.     Mr F said even when his rank was that of ‘Jag Turan’ (Senior Captain), he was not in charge of the team in which he worked and could not do anything without instruction from his boss.  Each day, he was assigned to undertake some task – to secure roads outside offices, buildings etc.  During his time working as a security guard, he never encountered anything unusual or suspicious. 

34.     Mr F was asked why he did not leave the KhAD in about 1989 when he had completed eight years’ service.  He said he had no choice but to continue working as a security guard because if he left that position without permission, he was at risk of being arrested or detained on suspicion that he would pass information to the enemies of Afghanistan.  Apart from his knowledge of the home addresses of senior government officials and their families, and their pattern of movements, he denied having any information of value.  Secondly, Mr F said he used his eczema as an excuse for leaving and it took him some time to obtain the necessary medical reports to support this (he did not have any documents confirming his treatment in Moscow) and to obtain a certificate to say that he had completed the required service.  It was a very slow process and his father’s friend who had helped him in the past was not prepared to help him with this.

35.     Mr F stated that he resigned in 1992 when he was no longer at risk of being conscripted into the army and felt he could choose a job that interested him.  He applied for and was appointed to a clerical position with a government organisation that helped resettle returning Afghans and he worked for that organisation until the Taliban seized power and the organisation could no longer pay salaries.  Even though the organisation knew he had worked for the KhAD, he never had any problems because he had never done anything to harm his people.  After the Taliban seized power, he ran a small money changing business until he was arrested. 

36.     Mr F said that after Dr Najibullah resigned as President in April 1992 and the mujahidin dominated the government, he never had any problems with the Mujahadin as a result of his past work in the KhAD, and he continued to live in Kabul.  From the time the Taliban captured Kabul in September 1996 until the time of his arrest in late 2000, Mr F had also not had any problems with the Taliban although it was difficult with them in control.

37.     Mr F stated that when he was arrested by the Taliban in December 2000, he was taken to a room where he was held for three days and questioned, beaten and tortured.  He was asked religious questions but also where he worked.  He did not reveal that he had worked as a security guard in the KhAD because he feared his interrogators might think he had been involved in mistreating members of the Taliban and would kill him.  They beat and tortured him even though he told them that he had not taken sides in the war.

38.     The Tribunal has also been provided with an expert report dated 27 February 2010 from Dr Antonio Giustozzi, a research fellow at the Development Studies Institute at the London School of Economics and Political Science (LSE), who is a leading academic expert on Afghanistan including the KhAD.  Dr Giustozzi said that from Mr F’s description of his activities working as a security guard (from 1985 onwards), “it would seem he belonged to Directorate 10, in charge of protecting the leadership of the state, i.e. including the President”.  Dr Giustozzi said the KhAD was a huge organisation with complex logistics and administration divided into sections or operational directorates, one of which was responsible for protecting the leadership.  While there is no doubt that the KhAD committed human rights violations on a large scale, including extra-judicial executions and torture, many as a result of the brutality of individual officers, from 1987 the number of political prisoners declined and so did reports of torture being used:

7. However, the violation of human rights was essentially concentrated in a few directorates: first and foremost interrogation, followed by counter-insurgency and the provincial counter-insurgency.  It appears obvious that in his position [Mr F] did not have [sic] to do with repressive activities.  The fact that he was retained in service after the collapse of the pro-Soviet regime in 1992 until the occupation of Kabul by the Taliban suggests that he was not considered responsible for abuses against the mujahidin.

8. … Generally speaking there is no reason to believe that most violations of human rights were carried out by others than specialised ‘interrogators’ as they exist in all intelligence services.  Their methods were brutal, but it appears highly unrealistic to assert that every officer in KhAD/WAD was involved in such activities.

39.     Dr Giustozzi said he could find no indication in any source that basic training for KhAD members included torture/interrogation skills. 

40.     With regard to Mr F’s evidence about joining KhAD, Dr Giustozzi said:

13. It was common during the 1980s to try to avoid service in the army, which was deployed mostly to the frontlines and suffered heavy casualties.  People connected to the regime used their connections to try [to] get positions in the police and the army, which would not imply being sent to the front, or in the directorates of KhAD which implied staying in Kabul or doing a desk job.  Therefore it is plausible that [Mr F] would also have used the same channels to get recruited into KhAD.

41.     Dr Giustozzi said conscripts would not be assigned to special units involved in infiltrating or tracking down insurgents and interrogating them.  Such operational roles were assigned to ‘professionals’.  Dr Giustozzi said that from 1985, various economic incentives were introduced to make military service more attractive:

16. In February 1987, the length of compulsory service was reduced back to two years.  [Mr F] would therefore have strong incentives to stay in the KhAD even after [his] term had expired; it should also be considered that after a year break, former conscript[s] were subject to being recalled from the reserve, without the economic advantages of having volunteered.  Their career path would also have been disrupted.  Hence staying in was the most rational thing to do, particularly for those positions which did not entail high levels of risk.

42.     The other information provided by the parties also refers to the non-operational sections within the KhAD and to the complex logistics and administration needed to support the organisation. 

43.     In determining whether Mr F does not pass the character test, the Tribunal is bound by the Full Federal Court decision in Haneef as to how s 501(6)(b) should be applied. There must be a reasonable suspicion that the person has an association involving either (1) some sympathy with, or (2) support for, or (3) involvement with someone else or a group or organisation that the Minister reasonably suspects has been or is involved in criminal conduct. Further, such an association must have some bearing upon the person’s character in terms of their enduring moral qualities.

44.     There is no dispute that Mr F had an association with the KhAD as a result of his employment between late 1981 and early 1992.  Equally, there is no dispute that the KhAD was involved in criminal conduct.  However, the evidence does not support the finding required by the Full Federal Court decision in Haneef that his association with the KhAD involved some sympathy with or support for that criminal conduct such that his association has some bearing on his character (in the sense of enduring moral qualities) so that it is for the public good to refuse entry: Goldie, at [8], quoted above.

45.     Mr F was involved with the KhAD by reason of his employment in that organisation.  But did that involvement have some bearing on his character?  In my view, the answer to that question is ‘no’.  Mr F’s and Dr Giustozzi’s evidence is that at the time Mr F obtained employment with the KhAD, families who had connections with those in government might use those connections to obtain employment for their sons in government to avoid them being conscripted into the military and thereby risking being sent to the frontline with its attendant danger of death or injury.

46.     Mr F spent about two years working as a clerk in the logistics branch of the KhAD and about nine years working as a security guard in the security/protection branch.  While he was aware that the KhAD was involved in the torture and mistreatment of prisoners, he said he was not in a position to do anything about it and such conduct never occurred in the course of his work.  Dr Giustozzi’s evidence is that the violations of human rights perpetrated by the KhAD were concentrated in a few directorates and “it appears obvious that in his position [Mr F] did not have [sic] to do with repressive activities”.

47.     The fact that by the end of his service with the KhAD Mr F had attained the rank of Senior Captain is not, in my view, significant.  Mr F’s evidence is that he was promoted routinely, and it appears that, at least at his level, promotion was based on longevity of service.  His evidence is that he did not have any supervisory duties as a Senior Captain and that he was subject to instructions from superior officers for his day-to-day deployment.

48.     The fact that Mr F continued to work for the KhAD after the expiry, in 1988/1989, of the eight‑year period during which he might otherwise have been conscripted into military service is also not significant.  He had a financial incentive to remain in employment to support his growing family.  I accept his evidence that he needed permission to leave the KhAD and feared that unless he had a good reason for wanting to leave that employment, he might be the subject of suspicion as to his motives.  I also accept that obtaining the necessary supporting medical evidence about his eczema and the processing of his application for permission to leave was a lengthy one.

49.     In my view, Mr F’s evidence as to his service in the KhAD is credible and I do not agree with the submission made by Mr Johnson, for the Minister, that Mr F was evasive or non-responsive in answering questions in cross-examination.  While I accept there were some discrepancies in the evidence – between Mr F’s written and oral evidence - the circumstances of his cross-examination and the difficulties of translation and interpretation should be taken into account. 

50.     Mr F first gave evidence on 28 July 2010 by telephone from London between the hours of about 2.00 am and 6.00 am British Summer Time (GMT + 1).  All communication was through an interpreter in the Dari language who was present in the hearing room in Sydney.  It seems Mr F’s English is poor and he is from a different cultural background with little exposure to our legal system.  The questions employed in cross-examination were of a kind that are commonly used in cross-examining witnesses in an Australian court, that is, they involved the making of a statement – often involving several sentences - and then asking the witness to confirm that the statement is correct.  In my view, such a situation can be fraught with communication problems and this proved to be the case. 

51.     As a result of perceived problems with the interpretation, a different interpreter was employed to listen to the audio recording of Mr F’s evidence, compare this with the English transcript, and prepare a report on the accuracy of the interpretation.  At a directions hearing on 20 October 2010, it was agreed between the parties and the Tribunal, having read the interpreter’s report, that there were material failings in the interpretation in relation to Mr F’s evidence.  The fairest course was, therefore, to disregard that evidence and for Mr F to give evidence again using a different interpreter.  This took place at the resumed hearing on 9 December 2010.

52.     In my view, despite the assistance of a different interpreter, Mr F still had difficulty understanding some of the questions put to him, especially those in cross-examination, and therefore in answering those questions appropriately.  Thus, what might have appeared to be evasiveness was probably more a reflection of Mr F’s lack of understanding of what he was being asked and, in my view, some of his answers clearly reflected this.  I did not form the impression that he was being deliberately evasive in answering questions and, despite the difficult circumstances of his giving evidence, I formed the impression that he was being candid in answering questions to the best of his ability.  I am aware that there were some discrepancies between statements in his statutory declaration dated 13 May 2010 and his evidence during the hearing.  However, I am satisfied that these were not significant and are explicable by reason of the difficulty of Mr F’s statement being adequately translated into English.

53. Thus, in my view, Mr F’s involvement with the KhAD by reason of his employment as a security guard does not, in the particular circumstances of this case, bear negatively on his character. Section 501(6)(b) is not satisfied and Mr F does not fail the character test as a result of his association with the KhAD. The Minister does not contend that Mr F does not pass the character test on any other ground. If I am wrong in so determining, I am satisfied that, notwithstanding this, the discretion to not refuse the grant of a visa to Mr F should be exercised in his favour for the reasons set out below.

If Mr F were to fail the character test, should the discretion nevertheless be exercised in his favour?

54.     As stated above, in making such a determination, I must take into account both the primary considerations and the other considerations referred to in Direction No 41.

Primary considerations

55.     The relevant primary considerations in Mr F’s case are the protection of the Australian community and the best interests of those of his children who are under the age of 18.  The other two primary considerations are not relevant because Mr F has not visited Australia and is presently resident in the UK where he is now a citizen. 

the protection of the australian community

56.     Direction No 41 identifies two factors relevant to this consideration: the seriousness and nature of the relevant conduct, and the risk that the conduct may be repeated.  With regard to the seriousness and nature of the conduct, the Tribunal notes that paragraph 10.1.1(1) states:

Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community.  Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community.

57.     The Minister states that the KhAD was involved in torture, murder and intimidation, conduct that is especially abhorrent to the Australian community and must be considered extremely serious.  While there is a low risk of the conduct being repeated because the KhAD no longer exists, there is a high risk of the presence of a KhAD officer in Australia adversely affecting the emotional and psychological state of members of the Afghan community in Australia who were persecuted by the KhAD or who had relatives or acquaintances who were persecuted.  Thus, the protection of the Australian community weighs heavily against the discretion being exercised in Mr F’s favour.

58.     Mr Murphy, for Mr F, said Mr F has not been convicted of any offences anywhere, he has police clearances from both Afghanistan and the UK, and he has been assessed as not presenting a risk, either directly or indirectly, to Australian security.  Moreover, the Minute prepared for the delegate of the Minister found there was no evidence that Mr F was personally involved in the commission of crimes of the KhAD.  Thus, Mr Murphy contended, there is no risk to the Australian community in granting Mr F a visa.

59.     I am satisfied that while the criminal conduct in which the KhAD was involved was very serious and is undoubtedly abhorrent to the Australian community, there is no evidence that Mr F was involved in any such criminal activity, and there is evidence that Mr F has never been convicted of any offence in Afghanistan or the UK.  The Minister has not produced any evidence to support the contention that his presence in Australia would affect members of the Afghan community here and it could equally be said that if the circumstances surrounding Mr F’s employment in Afghanistan and his and Mrs F’s escape from Afghanistan were known to the Afghan community here, they would be supportive of Mr F being granted a visa and being reunited with his family.  I note Mr F’s evidence that his employment with the KhAD has never caused him any problems with the Afghan community in London.

60.     Thus, I am satisfied that Mr F’s presence in Australia would not pose a risk to the Australian community and that this primary consideration does not weigh against the refusal of the grant of a visa to him. 

The Best Interests of the Child

61.     Direction No 41, paragraph 10.4.1(4) states: “Under Australian law, it is generally presumed that a child’s best interests will be served if the child remains with its parents”.

62.     The Direction sets out a number of factors to be considered in ascertaining the best interests of the child.  These include, relevantly, the nature of the relationship between the child and the person; the duration of the relationship including the number and length of any separations and the reasons for those separations; the extent to which the person is likely to play a full parental role in relation to the child; the child’s age, citizenship and relationships with others in a parental role; the likely effect that any separation from the person would have on the child; any known wishes expressed by the child; and the circumstances of the probable country of future residence and any language and cultural barriers there for the child.

63.     Mr F and Mrs F have six children but only the two youngest, his daughter aged 12 and his son aged three, are under the age of 18.  Both are Australian citizens living with their mother in Sydney.  The Tribunal has been provided with a Mental Health Plan for the daughter prepared by the family doctor, dated 28 July 2009, and a report from a psychologist, dated 19 February 2010, with regard to both the daughter and Mrs F.  The psychologist said the daughter had been assessed as having an adjustment disorder with depression and had been treated for depression “within a cognitive behavioural framework”.  She ceased treatment in November 2009 but, in the psychologist’s opinion, her “initial presenting symptoms had not improved significantly, and further treatment was recommended”.

64.     In her statutory declaration dated 15 December 2009, Mrs F noted that her youngest son “is very attached to his father and wants to talk to him nearly every day on the phone.  If he does not get to talk to his father he gets very upset.”  Mr F’s and Mrs F’s eldest son, who is aged 24, in a statutory declaration dated 9 December 2009, said that his youngest sister, who is attending the same psychologist as their mother for counselling, sometimes just starts crying and this upsets him and he does not know what to do for her. 

65.     Mr Murphy said Mr F was separated from his family due to the war in Afghanistan and they have continued to maintain close contact and meet up despite difficult circumstances and Mr F presently being in the UK.  There is nothing in Mr F’s conduct to raise concerns that he is not a good parent.  

66.     Mr Murphy also noted that as a ratifying State Party, Australia has obligations under Article 23(1) of the International Covenant on Civil and Political Rights to protect the right of the family as “the natural and fundamental group unit of society”.  He contended that this is such a case, the family having been separated for nearly 10 years.

67.     The Minister contended that it is possible for the two youngest children to move to the UK with their mother where they will have an equivalent level of education and standard of support.  He contended that the difficulties for the family in relocation to the UK do not outweigh the unacceptable risk of harm to the Australian community.

68.     I am satisfied from Mrs F’s and the older children’s evidence that they are now well established in Australia, which they regard as their home.  There is no dispute that it is in the two youngest children’s best interests to be with their parents.  The evidence of the family doctor and treating psychologist indicates that the youngest daughter has been suffering from depression as a result of the separation from her father.  Assuming Mrs F and the two youngest children could obtain entry to the UK to live there with Mr F, a move to the UK would undoubtedly be very disruptive for the family and would be likely to cause significant anxiety to family members with consequent flow‑on effects to the youngest children.  By contrast, there would be no disruption to the family if Mr F is permitted to come to Australia to be reunited with them.

69.     In my view, this primary consideration therefore strongly favours the grant of a visa to Mr F.

OTHER CONSIDERATIONS

70.     As noted above, Direction No 41 states that ‘other’ considerations, where relevant, must be taken into account but, generally, should be given less weight than ‘primary’ considerations.  Relevant ‘other’ considerations in Mr F’s case specifically referred to in the Direction are his family ties and the nature and extent of his relationships with those in the Australian community, his links with the UK, and the hardship that may be experienced by both Mr F and his immediate family members in Australia if a visa is refused.  

71.     The examples of other considerations listed in paragraph 11(3) of Direction 41 are not exhaustive and the Minister contends that the expectations of the Australian community, and in particular of the Australian Afghan community, is also a relevant consideration.  The Minister contends that the primary consideration of the protection of the Australian community together with the expectations of the Australian community weighs against the exercise of the discretion in Mr F’s favour.

72.     Mr Murphy noted that the Minister accepts that there is a genuine marriage between Mr F and Mrs F and that their enforced separation is causing serious hardship for both the parents and the children.  Mr Murphy contended that neither of the primary considerations are adverse to Mr F – indeed, they support his application. 

73.     The Tribunal heard evidence from Mrs F and her two oldest children - her oldest son who is aged 24 and her oldest daughter who is aged 23 - both of whom have provided statutory declarations to the Tribunal.  Her oldest son said, at the time that he gave evidence, that two of his younger brothers were currently with Mr F in England.  He said he travelled to England in January 2009 in order to be with his father who is very depressed and always thinking about his family in Australia.  He was with his father when he was interviewed at the Australian High Commission in London in April 2009.  The immigration officer asked the son to act as interpreter when his father was unable to answer the questions put to him in English.  The son said there were some occasions when he did not understand the questions put by the officer or was unable to interpret particular words in answers given by his father.

74.     The son said Australia is his home and he loves living here.  He does not want to live in the UK.  He said that when he returned to Australia in June 2009, he tried to return to TAFE to complete the Certificate IV and diploma in retailing that he had started before travelling to England, but he was upset about his father’s visa application being refused and he could not concentrate.  However, he has now obtained his security licence and is currently looking for work.  While his father is in the UK, in Afghan culture, as the oldest son, he has a responsibility to look after the family.  He really misses his father and it is very hard on everyone in the family being separated from him and not knowing their future.

75.     The eldest daughter said she has not seen her father for 10 years, since late 2000 when they left Afghanistan.  She speaks to him regularly on the phone.  She was devastated when her father’s visa application was refused and felt very stressed.  She does not understand why he has not been allowed to come to Australia: he is not a criminal.  It is very hard on all the family. 

76.     The daughter said Australia is her home and she does not want to go and live in the UK.  She is in the final year of studying for a Bachelor of Commerce and Business degree at the University of Western Sydney and she hopes to get a job in a bank on graduation and then pursue a career as a manager.

77.     Mrs F also provided a statutory declaration and gave evidence at the hearing.  She said she last saw her husband in 2008 when they spent time together in Afghanistan.  The Tribunal has been provided with a Mental Health Plan for Mrs F prepared by the family doctor, dated 28 July 2009, and, as noted above, a report from a psychologist, dated 19 February 2010, with regard to both the daughter and Mrs F.  The Tribunal was also provided with a medical certificate dated 16 July 2010 signed by her family doctor stating that Mrs F is suffering from “moderately severe depression”, confirmation from a consultant psychologist that Mrs F has been referred to her practice for treatment and is currently being treated for anxiety and depression, and a copy of Mrs F’s prescription for the medication Avanza signed by her family doctor.

78.     I accept that Mr F’s separation from his family is causing both him and his family in Australia hardship.  While it might be possible for Mrs F and her younger children to live with their father in the UK, it is not clear whether the other four children would be permitted entry.  In any event, as stated above, it is clear that the family is well established in Australia, the children completed or are undertaking their education here, their friends are here and they regard Australia as their home.  A move to the UK, if permitted, would undoubtedly cause significant disruption to them all. 

79.     Thus, both the primary and the other considerations support the exercise of the discretion to not refuse the grant of a visa to Mr F.

80.     The Tribunal sets aside the decision under review and remits the matter to the Minister with the direction that Mr F passes the character test.

I certify that the 80 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President.

Signed:   ………[sgd]..................................................................

A Veness, Associate

Dates of Hearing:  28 July 2010 and 9 December 2010
Date of Decision:  21 December 2010
Applicant representative:       D’Ambra Murphy Lawyers
Respondent representative:   DLA Phillips Fox
Respondent counsel:             Mr G T Johnson