Gharib and Minister for Immigration and Border Protection (Migration)

[2017] AATA 1102

Gharib and Minister for Immigration and Border Protection (Migration) [2017] AATA 1102 (19 July 2017)

Division:GENERAL DIVISION

File Number:           2016/5634

Re:Souraya Gharib

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member Griffin

Date:19 July 2017

Place:Sydney

The decision under review is affirmed.

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

Senior Member Griffin

CATCHWORDS

MIGRATION – visa refusal – partner visa –  failure to pass the character test – whether to exercise s 501(1) discretion to refuse on character grounds –  substantial criminal record – term of imprisonment – nature and seriousness of conduct – protection of the Australian community – risk to the Australian community – Applicant’s risk of reoffending – decision affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 499, 501

SECONDARY MATERIALS

Ministerial Direction No 65 ‘Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under

s 501CA’

REASONS FOR DECISION

Senior Member Griffin

19 July 2017

1. The applicant (the review applicant) seeks review of a decision of a delegate of the Minister dated 20 September 2016 to refuse to grant Mr Abdul Salam Kerdi (the visa applicant) a Partner (Provision)(Class BC) visa (the visa). The decision was made under s 501(1) of the Migration Act 1958 (the Act).

   BACKGROUND

2. The review applicant is a 28 year old citizen of Lebanon, who resides in Lebanon with the visa applicant and their 3 sons. The review applicant was granted Australian citizenship by descent on 5 December 2014. The visa applicant is a 38 year old citizen of Lebanon. On 22 April 2015 the review applicant made an offshore application for the visa to sponsor the visa applicant, as her partner, to migrate to Australia. 


3. In the visa application, the visa applicant disclosed that:

   ·He travelled from Italy to Tunisia for work, and from there he travelled to Switzerland where he went to the refugee department, told them he was a Palestinian refugee named Wael Kerdi because, in Switzerland, Palestinians have a better chance of getting a refugee visa with accommodation in a refugee camp.

   ·He made friends with some south Lebanese persons at the refugee camp who invited the visa applicant to travel with them to visit relatives in the next region. These friends were called away, and asked the visa applicant to travel ahead with their bag. At some point during the visa applicant’s travel, the friends’ bag was searched by a controller and found a small quantity of drugs which he knew nothing about. The visa applicant was imprisoned for 2 years.

   ·He then returned to the refugee camp, married and had a daughter. He says later he discovered his wife took drugs and assisted her to seek treatment. The police accompanied him to his house, found drugs which his wife had been taking and he was convicted and imprisoned for 2 years ”for the crimes of entering the country in an illegal way, using a name other than mine for five years and having drugs in my house”.

   ·The visa applicant returned to Lebanon on 27 December 2007. 


4. On 5 August 2016, the visa applicant was sent a Notice of Intention to Consider Refusal under s 501(1) of the Act (the Notice). The Notice set out the grounds for proposed refusal of the visa, namely that the visa applicant’s substantial criminal history suggested he did not pass the character test by virtue of s 501(6)(a) of the Act. 


5. Along with extracts of the Act and Ministerial Direction No 65 ‘Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under
s 501CA’ (the Direction), attached to the Notice was a Swiss Police Certificate dated 17 March 2015 and English translation which recorded the following court outcomes: 


Bucheggberg Court – Wasseramt	28 November 2007	Offence of Foreigners’ accommodation and establishment (committed several times)	Sentence of blocking freedom for 42 months Fine 800 CHF
Contravention of foreigners’ accommodation and establishment (committed several times)
Offence on narcotics (drugs) (Committed several times)
Crime on narcotics (drugs) (committed several times)

1. Among the documents attached to the Notice was a personal statement of the visa applicant dated 6 October 2015 and the visa applicant’s Form 80 (‘Personal particulars for assessment including character assessment’) dated 16 April 2015. These documents set out further details about the circumstances that led to the offences, namely:

   ·The visa applicant travelled from Lebanon to Switzerland in June 2000 in search of a better life. Upon arrival in Switzerland the visa applicant assumed a false identity, and claimed to be from Pakistan in order to obtain a refugee visa.

   ·While in a refugee camp the visa applicant became friends with some other people from Lebanon. At some point he and these friends decided to travel together to visit another place. While at the train station these friends were called away, and asked the visa applicant to travel ahead with their bag. They said they would follow after him once they had finished some work. At some point during the visa applicant’s travel (there are inconsistent statements on this point) the friend’s bag was searched by a person in authority and found to contain drugs. The visa applicant was charged and held in custody. He was sentenced a year later for transporting drugs, to a total period of 2 years imprisonment.

   ·After being released, the visa applicant returned to the refugee camp. He was then instructed to move to refugee accommodation in Zurich and was paid an allowance. In Zurich the visa applicant met a woman. They married in February or May 2005 (conflicting dates have been given). After he married this woman, the visa applicant found out that she used drugs. When she fell pregnant the visa applicant sought to assist her to stop using drugs. For some reason (conflicting reasons have been given) this process caused the visa applicant to come to the attention of the police. It was discovered that he had lied about his identity and his house was searched. Drugs belonging to his wife were found and the visa applicant was charged and convicted of a further 2 years in prison. The visa applicant’s wife gave birth to a daughter in February 2006. The visa applicant was released from prison in December 2007 and deported to Lebanon. The visa applicant’s relationship with his wife ended at this time.

   ·The visa applicant and the review applicant commenced a relationship in 2008. The application for the visa is made on the basis that they are in a de facto relationship said to have commenced on 19 June 2009 (it is noted that on the Department’s file is a marriage certificate stating they were married on 31 December 2008). They have 3 children together.

   ·The review applicant’s wife is an Australian citizen. She has been granted Australian citizenship by descent, but has never travelled to or lived in Australia. 


2. The
visa applicant responded to the Notice through an authorised representative on 13 and 15 August 2016, providing statements of himself and the review applicant. The review applicant, in her statement dated 13 August 2016, states that the visa applicant is a good man. She wishes to bring her family to Australia as she is fearful for her children’s safety in Lebanon and wants the visa applicant to accompany them. The visa applicant, in his statements dated 6 October 2015 and 13 August 2016, says that everything that happened to him in Switzerland was a mistake, resulting from ‘bad friends’ who took advantage of his ‘misunderstanding for language’. He notes that he has no criminal history in Lebanon. The applicants also provided a reference from the Mayor of El Sfire (Lebanon) dated 11 August 2016.

3. On 20 September 2016 a delegate exercised the discretion under s 501(1) of the Act to refuse the visa.

4. The Tribunal must reach a decision that is the correct or preferable decision i.e. the decision that is correct according to the law and on the evidence and, where more than one decision meets that description, the decision that is preferable having regard to the limits imposed by the legislation under which the decision is made and the facts of the case. 


5. Section 501(1) 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. 


6. I am satisfied on all the material, including the evidence of Mr Kerdi (the visa applicant) that he does not pass the character test set out in s 501(6) of the Act. 


7. Accordingly, the issue for the Tribunal is whether the discretion under s 501(1) should be exercised to refuse the visa. 


8. In exercising the discretion, the Tribunal must have regard to the Direction (s 499(2A) of the Act).

9. The principles set out at paragraph 6.3 of the Direction make it clear that:

   ·coming to 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: at subpara 6.3(1)

   ·a non-citizen who has committed a serious crime, including of a violent nature, should generally expect to be denied the privilege of coming to or to forfeit the privilege of staying in, Australia: at subpara 6.3(3)

   ·Australia has a low tolerance of any criminal conduct by visa applicants reflecting that there should be no expectation that such people should be allowed to remain permanently in Australia: at subpara 6.3(6). 


10. Paragraph 7 of the Direction requires a decision-maker, including the Tribunal, to take into account the considerations in Part B of the Direction in deciding whether to refuse to grant a visa. These considerations are described as either ‘primary considerations’ or ‘other considerations’. 


11. Paragraph 11 of the Direction sets out the primary considerations as:

    ·protection of the Australian community from criminal or other serious conduct;

    ·the best interests of minor children in Australia; and

    ·expectations of the Australian community. 


12. Paragraph 12 of the Direction sets out the other considerations as: 


    ·international non-refoulement obligations;

    ·impact on family members;

    ·impact on victims; and

    ·impact on Australian business interests.

    ISSUES

13. It is relevant to consider the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non- citizens, and there is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct: subparas 6.2(1) and 11.1(1).

14. The factors in considering the nature and seriousness of conduct relevantly include:

    ·the principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under s 501(6)(c), is considered to be serious: subpara11.1.1(1)(d). The visa applicant falls into this category

    ·the sentence imposed: subpara 11.1.1(1)(e). In this case the sentences imposed were approximately 4 years which suggest that the offences were of a serious nature

    ·the frequency or trend of offending: subpara11.1.1(1)(f). The offences committed by the visa applicant include multiple drug offences, including trafficking, which attracted significant custodial sentences of approximately 4 years. 


15. The visa applicant’s criminal history also includes making false claims about his identity and false claims for protection. 


16. There can be no doubt that such offences, committed on multiple occasions, are serious in nature.

    Risk to the Australian community

17. The Direction states that decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases (subpara 11.1.2(1)). Given the seriousness of the visa applicant’s offences, I consider that the community’s tolerance in this case would be limited.

18. It is contended by the visa applicant, in submissions filed with the Tribunal on 24 February 2017, that:

    ·his ‘likelihood of recidivism is very low’;

    ·‘there is a very low probability of risk, or no risk at all, that the Applicant will commit 
an offence or engage in serious conduct, in the future’; and

    ·‘there is a low risk of the Applicant committing further offences or engage in other 
serious conduct’. 


19. I infer that the visa applicant submits that he does not pose a risk to the Australian community.

20. In relation to the considerations set out in para 11.1.2(3) of the Direction, the Tribunal must consider, cumulatively, that the nature of the harm is serious and drug related and that there is a likelihood of the visa applicant engaging in further criminal or other serious conduct. 

21. Apart from the material provided in the Tribunal file, evidence was given by Mr Kerdi and his wife.

22. The effect of that evidence was that the visa applicant was remorseful for his past conduct, a reformed individual and desirous of coming to Australia where he would be a model of respectability and no danger to the Australian community.

23. The evidence was translated from his native language. Making considerable allowance for that, I nonetheless found his evidence to be evasive about the extent of his involvement in the various offences committed by him, with a tendency to distance himself largely from most criminal responsibility. For example, the reason for his travel to Switzerland, which he said was for work purposes was, in reality I conclude, for the purpose of illegal entry to that country so as to attempt to portray himself as a refugee. Furthermore, the clandestine and fraudulent manner of his attempt cannot be disregarded when considering the authenticity and honesty of his visa application to Australia. I find he dissembled about his involvement in the drug offences, involving both himself and his wife. I am satisfied on the objective evidence, including the facts relating to those offences, that he was far more deeply involved.

24. Overall, the view I formed of the visa applicant is that he is worthy of very little credit in both his oral evidence and of assertions made by him in his documentary application particularly as those assertions relate to the fact that he has reformed and he is now of good behaviour and will now, in effect, behave in accordance with the expectations of the Australian community.

25. The view I take of his evidence greatly outweighs the positive references provided and the oral evidence of his wife.

26. In summary, on his evidence, I am left with a feeling of considerable disquiet about his application as it affects issues of recidivism, safety of the Australian community and his future behaviour should he be allowed a visa.

27. I am therefore not satisfied that the visa applicant poses little or no risk to the Australian community.

28. Although the visa applicant has not committed an offence since approximately 2005, I conclude that it cannot be said that there is no risk of the visa applicant reoffending. Further, there is a low tolerance for visa applicants who have previously engaged in criminal conduct: subparas 6.2(1) and 11.1.2(2). 


29. Even though understandably the visa applicant may suffer should he be separated from his family, I do not consider any strong or compassionate reasons have been demonstrated by the visa applicant for the grant of a visa.

30. I have previously referred to various references from the visa applicant’s employer and local Mayor and the weight overall that I give to those references.

31. Taking into account the nature and seriousness of the offences committed, the cumulative effect of the visa applicant’s repeat offending, the visa applicant’s inconsistent evidence, the lack of evidence to support the visa applicant’s claims, and the risk to the Australian community should the visa applicant commit similar offences in future, the respondent contends that this primary consideration supports the exercise of the discretion to refuse to grant the visa. I agree with this submission.

    Best interests of minor children in Australia

32. The visa applicant has 4 children. The visa applicant’s evidence is that one child resides in Switzerland and 3 children reside with the applicants in Lebanon. The visa applicant does not have any minor children in Australia whose best interests would be affected by a decision to refuse to grant the visa. Therefore the best interests of minor children is of no relevance in this case nor are there any other considerations relevant to the assessment of Mr Kerdi’s application in this case.

    Expectations of the Australian community

33. Paragraph 11.3(1) of the Direction, provides that: 


    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 the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.

34. While there is no test or standard for assessing the expectations of the community, the authoritative statements in the Direction give meaning and flavour to the “community expectation test”. Furthermore, community expectations must be applied reasonably and in full, taking into account all facts and circumstances, both in favour of refusal and equally and taking into account those facts and circumstances positive for the applicant.

35. I conclude that the Australian community would expect that a person who has been found guilty of multiple drug offences, including trafficking, would not be granted a visa not least because of the seriousness of the offences.

36. The visa applicant’s conduct with respect to obtaining refugee status in Switzerland, particularly his willingness to give false information to obtain financial and practical support, independently supports the proposition that the Australian community would expect that the visa applicant should not be granted a visa. 


37. The weight of these matters, in the context of an application for long-term entry, suggests that the visa applicant has moral qualities that put the public good at risk, such that the visa should be refused on character grounds. 


    Other Considerations

38. There is no other relevant matter or matters regarding the other considerations. 


    CONCLUSION

39. The visa applicant does not pass the character test. The primary and other considerations set out in the Direction weigh in favour of exercising the discretion to refuse the visa. The decision under review should be affirmed.

I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Griffin

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

Associate

Dated: 19 July 2017

Date of hearing:	7 April 2017
Solicitors for the Applicant:	Ms R Sayed, Bardo Lawyers
Solicitors for the Respondent:	Ms K Gawidziel, Australian Government Solicitor