GJQD and Minister for Immigration and Border Protection (Migration)
[2018] AATA 2
•4 January 2018
GJQD and Minister for Immigration and Border Protection (Migration) [2018] AATA 2 (4 January 2018)
Division:GENERAL DIVISION
File Number(s): 2017/6216
Re:GJQD
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Dr Damien Cremean, Senior Member
Date:4 January 2018
Place:Melbourne
The Tribunal affirms the decision under review.
.................[sgd].......................................................
Dr Damien Cremean, Senior Member
MIGRATION – revocation of visa – character grounds – substantial criminal record –review – “another reason” – claimed bisexuality – other factors – decision affirmed – anonymity of applicant and witnesses.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth); s 35
Migration Act 1958 (Cth)
Secondary Materials
Ministerial Declaration no 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Scott Morrison MP, Minister for Immigration and Border Protection)
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
4 January 2018
INTRODUCTION
The Applicant is GJQD. His Class BB Subclass 155 Five Year Resident Return visa was cancelled by a decision made on 22 November 2016 (‘original decision’) under s 501(3A) of the Migration Act 1958 (Cth) (‘Act’).
On 12 October 2017 a delegate of the Respondent made a decision (‘review decision’) under s 501CA(4) of the Act not to revoke the original decision.
By application made on 19 October 2017 the Applicant now seeks review by this Tribunal of the review decision.
A hearing was conducted on 19 December 2017 at which the Applicant was represented by Mr G Gilbert SC and the Respondent was represented by Mr J Grant, solicitor.
At the hearing the G Documents were received into evidence. The Applicant gave sworn evidence, as did the following on his behalf: CD, his brother; EF, another brother; GH, his aunt; and I J, a sister-in-law. Sworn evidence was also given by WS, a consulting psychologist.
Each such person was cross-examined by Mr Grant, who called no evidence on behalf of the Respondent.
Character references in support of GJQD were also tendered in evidence.
The parties made submissions at the conclusion of the hearing and the Tribunal reserved its decision.
Background
The Applicant GJQD was born in a small village in Lebanon in 1975. The village may have had between 3000 and 4000 persons living there at the time.
GJQD’s mother is aged in her mid-60s and his father in his mid-70s. GJQD is one of a number of children of the marriage. He grew up in impecunious circumstances.
At an early age GJQD was told to leave home, which he did by moving to Tripoli and later to Beirut. He did national service in the Lebanese Army.
The Applicant later travelled to Australia, arriving in 1998 in his early 20s.
The Applicant has been married twice. His second wife is KL, with whom he has had three children, aged 5, 13 and 15. These children are all Australian citizens and are at school.
The Applicant and KL are divorced.
With his first wife, GJQD has another child, MN, who is aged about 19 and is also an Australian citizen.
The Applicant has returned to Lebanon on a number of occasions since coming to Australia, but maintains he has little connection with it.
The original decision was based principally on the Applicant’s criminal record and was made under s 501(3A) of the Act, which provides:
(3) The Minister may:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person;
if:
(c) the Minister reasonably suspects that the person does not pass the character test; and
(d) the Minister is satisfied that the refusal or cancellation is in the national interest.
The Applicant’s National Police Certificate dated 26 June 2017 is as follows:
Court Date Offence Court Result Broadmeadows Magistrates Court 20 Apr 2017 Unlawful assault
Contravene family violence final intervention order
Aggregate 2 months imprisonment. Concurrent. Effective total state term imposed is 2 months Melbourne County Court 05 Apr 2016 Persistently contravene family violence notice/order
contravene family violence intervention order (4 charges)
Aggregate 18 months imprisonment Drive whilst authorisation suspended 2 months imprisonment. Total 1 year, 8 months Broadmeadows Magistrates Court 10 Mar 2016 Contravene community correction order Proven Broadmeadows Magistrates Court 10 Mar 2016 Breach re 31/07/2015
drive whilst authorisation suspended
4 months imprisonment.
concurrent. Effective total state term imposed is 4 months
Breach re 31/07/2015
Exceed 70 speed sign by 10k – less than 25k
With conviction, fined $300 as [the Applicant] Broadmeadows Magistrates Court 31 Jul 2015 Drive whilst authorisation suspended
exceed 70 speed sign by 10k – less than 25k
Convicted and a community correction order for 24 months. This condition starts on 31/07/2015 and goes for 24 months. also with conviction, fined an aggregate of $1500
as [the Applicant]
Melbourne Magistrates Court 23 May 2011 Breach intervention order (6 charges)
contravene family intervention order (2 charges)
stalk another person (crimes ACT)
Aggregate 6 months imprisonment. Concurrent. effective total state term imposed is 6 months Fail to answer Bail
Granted
With conviction, fined $1000 Failure to comply with ico Proven Melbourne Magistrates Court 23 May 2011 Breach re 08/12/2009
breach of intervention order (2 charges)
make threat to kill
recklessly cause serious injury
criminal damage (intent damage/destroy)
fail to answer bail
recklessly cause injury
Breach of intensive correction order. Order cancelled. To serve unexpired portion of 331 days imprisonment
as [the Applicant]
Melbourne County Court 08 Apr 2011 Cth - breach/conv./no sent./fail comply condition Resentenced on cwlth2007/1536 convicted and sentenced to 2 years 6 months imprisonment commencing 08.04.2011. 115 days pre‑sentence detention to be reckoned as time served. Traffick drug of dependence 18 months imprisonment. 12 months of sentence concurrent Melbourne Magistrates Court 08 Dec 2009 Failure to comply with ico Proven Breach re 23/10/2008
breach intervention order (2 charges)
make threat to kill
recklessly cause serious injury
criminal damage (intent damage/destroy)
fail to answer bail
recklessly cause injury
Breach of intensive correction order. Order varied. 337 days imprisonment. To be served by way of intensive correction order
as [the Applicant]
Heidelberg Magistrates Court 05 Aug 2009 Use indecent language in public place With conviction, fined $250 with $42.10 statutory costs
as [the Applicant]
Broadmeadows Magistrates Court 23 Oct 2008 Breach intervention order (2 charges)
make threat to kill
recklessly cause serious injury
criminal damage (intent damage/destroy)
fail to answer bail
recklessly cause injury
Aggregate 12 months imprisonment. Concurrent.
to be served by way of an intensive correction order
Melbourne County Court 01 Dec 2006 Dishonestly cause a risk of loss 1) convicted. Sentenced to 2 years imprisonment
unlawfully move tobacco leaf 2) convicted. Sentenced to 6 months imprisonment. Total effective term of 2.5 years. Released forthwith after passing sentence on entering recognizance self $500 to be of good behaviour for 4 years. Broadmeadows Magistrates Court 09 Feb 2006 Fail to give left change direction signal
Fail to give right change direction signal
With conviction, adjourned to 09/02/2007 Holbrook Local Court 06 Apr 2005 Obtain money etc by deception [Code]: fine : $700 costs - court : $63 compensation : $78.52 (Local Court 35173) Broadmeadows Magistrates Court 08 Jan 2003 Att. To obtain property by deception (4 charges)
possess suspected stolen goods
possess property being proceeds of crime
have in possession a false document
Aggregate 4 months imprisonment. Concurrent. to be served by way of an intensive correction order Preston Magistrates Court 20 Sep 2001 Carry dangerous article With conviction, fined $600 with $55 statutory costs Melbourne Magistrates Court 10 May 2001 Handle/receive/retention stolen goods 1 month imprisonment. concurrent. Sentence is wholly suspended under section 27 of the sentencing act 1991 for 12 months Parramatta Local Court 16 Feb 2000 Possess thing like Australian driver licence with Intent to deceive
[Code]: fine : $600 costs - court : $54 (Local Court 27962) Possess thing like Australian driver licence With intent to deceive [Code]: fine : $600 costs - court : $54 (Local Court 27962)
It was admitted on behalf of GJQD at the hearing that he has a substantial criminal record, as defined by s 501(7) and (7A) of the Act, and that it is constituted by serious offending. It was admitted, therefore, that GJQD does not pass the character test, as per s 501(6)(a) of the Act.
It is argued on GJQD’s behalf that the discretion in s 501CA(4)(b)(ii) of the Act applies and should be exercised in his favour. That section provides:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
The principal contention made on behalf of GJQD is that he falls within s 501CA(4)(b)(ii) of the Act. Considering all the materials, it was submitted the Tribunal should find that there is another reason why the original decision should be revoked.
This was opposed by the Respondent who submitted that the original decision should be maintained and thus affirmed.
EVIDENCE
(a)GJQD
GJQD gave sworn evidence confirming as true and correct the contents of an Affidavit affirmed by him at Castlemaine on 21 December 2016, and a Declaration declared by him at Christmas Island on 21 September 2017.
A further Declaration made on 7 December 2017 at Christmas Island was also confirmed by GJQD as true and correct.
In a letter dated 1 March 2016, which he confirmed in evidence, GJQD refers to his criminal behaviour for which he expresses sincere and heartfelt regret. He explains, due to my deppression [sic] and associated drug use I found myself in a dark place and unable to deal properly with issues facing me at this time.
In that same letter GJQD says that he sincerely wish[es] to change. He says he wants to be a great father to his children and to lead by example, and that he realises he is now getting closer to fifty years. He says he does not want to miss any more of his children’s lives – I do not want my children to see me as a stranger. Among other things, GJQD says, I am absolutely determined to live a drug free future with no re‑offending involved.
In the Affidavit of 21 December 2016, GJQD says, [I have] little connection to Lebanon my country of birth nor could I effectively resettle [there] after 18 years of absence. He refers to several rehabilitation and educational programs he has undertaken while in prison and attaches certificates. These include a Certificate of Completion dated 17 March 2016 for attending a Philosophy of Parenting program. He says he is deeply remorseful of [his] criminal offending.
In the Declaration of 21 September 2017 GJQD says that before coming to Australia, he was living in Lebanon, which he describes as war stricken. He says he was kicked out of home by his father at about the age of 12 or 13 years. He describes him as a hard man [who] was physically abusive, often daily.
GJQD says that after this, for two years he lived in Beirut in terrible conditions, sleeping among rats and mice. One occasion he recalls witnessing is when his cousin was struck by a bomb in Beiruit and had his arm blown off.
In that Declaration GJQD says I love my kids very much but he says because of an intervention order, he has been unable to see them. It would be impossible to gain access to them or see them if he was living in Lebanon. He says that they are living with KL, his ex-wife, and that they could not live in Lebanon. He says that I’m scared that without my kids, I might do something to myself.
In that same Declaration GJQD also mentions that he at one stage owned in Australia an Asian restaurant and then a coffee shop, but both businesses failed. He says also that he has not been involved in any fights in prison or in immigration detention. He stated that if he is released, he plans on working with EF, his brother, in a tow truck business and that he plans on living with CD, another brother.
In the Declaration made on 7 December 2017 GJQD says, regarding the possibility of being returned to Lebanon, I am scared that I will be killed. This is because of his claimed sexual orientation. GJQD says he is bisexual and has been intimate with men in Australia, in hiding. By in hiding, I expect GJQD means in secret. He says he discovered this about himself after arriving in Australia. He says that before going to prison and being placed in detention, [he] frequented many homosexual bars and clubs in Melbourne and used to visit online homosexual dating sites, where [he] had an online profile.
In cross-examination GJQD was taken at length through the various offences he had committed over the years. He said that he and his first wife divorced in about 2000. He indicated he got involved in drug trafficking because he was without money and this was an easy available option. In the letter of 1 March 2016 GJQD however speaks of his drug use being associated with his depression.
GJQD readily acknowledged his criminal history, which includes many contraventions of family violence orders.
Nonetheless, at the hearing, GJQD appeared to have an imperfect recollection of some of his convictions. Either he genuinely could not recall – possibly because there are so many – or he was being evasive. I am inclined to think the former. I took particular note though that, on one occasion, he could not recall whether he was on bail when he was convicted of drug trafficking. However, he did recall a severe beating he was given by those in the drug trade which resulted in him having his leg being broken.
GJQD also gave evidence of being raped by an employer in Lebanon when he was about 12 years old. GJQD said his children were not aware of what was going on in his life but they were aware he was in prison because they visited him there. He said however that he had lost contact with them since about 2015, though he still has seen his daughter MN every day.
GJQD admitted he had travelled back to Lebanon on several occasions. He repeated that if he was returned to Lebanon he feared he would be killed.
GJQD was cross-examined also about one particular incident, which was the subject of a Statement by Senior Constable XY, dated 1 March 2016. In summary, it details an incident, reported by KL, to which police were called. The allegation made by KL is that GJQD came to see his children and was verbally aggressive, that he started pushing her around the house and began hitting her around the face and body with his open hands.
Senior Constable XY notes however that KL had no visible injuries and that GJQD denied the allegations made by her. The Statement indicates that despite multiple efforts by the officer to follow the matter up with KL she did not respond and did not sign any statement.
In cross examination and in reply to my questions, it seems that GJQD’s convictions in 2016 and 2017 stem from this particular incident.
GJQD denies he hit KL on this occasion, though he pleaded guilty to charges arising out of the incident.
At one point, GJQD said I will never forgive myself for what I have done to my kids.
(b)CD
CD in evidence confirmed as true and correct the contents of a Statutory Declaration made by him on an unspecified date in December 2017.
In that Declaration, among other things, CD says he is GJQD’s younger brother. He says he has always been close to GJQD. He says their father is a hard man and a very tough character who was hard on all the family but who was most especially hard on GJQD. He believes that the way he treated GJQD affected him a lot.
CD also recalled an incident in Australia when GJQD was assaulted while in the shower by his first wife’s brother or brothers.
CD says that from his conversations with GJQD, he knows that GJQD knows what he has done was wrong and that he is very sorry. He said he knows GJQD loves his children very much.
CD says in the Declaration that he knows GJQD has personal matters he wants to talk about but is too embarrassed to do so. He says he is worried if GJQD must return to Lebanon as there is bad history between GJQD and their father.
CD also says he is worried also about how GJQD would financially support himself in Lebanon if he had to go back there. He makes reference to possible future working arrangements with GJQD in Australia
In cross-examination CD said that their father in Lebanon is still healthy but with some pain in his legs. However he said the family in Lebanon could not help GJQD if he was sent there because they do not have the capacity to do so. He indicated he had worked with GJQD before but that GJQD had not told him anything about his drug trafficking.
CD said he regarded GJQD as having been faithful to his wife but, by this, he seemed to mean that GJQD had been good to his wife. CD said that he has not seen KL, the Applicant’s second wife, for about two years.
CD described GJQD as having a very nice heart, which I took to mean that he is ‘kindly’.
(c)EF
EF confirmed in evidence as true and correct the contents of a Statutory Declaration made by him on 15 December 2017.
In that Declaration, among other things, EF says he is a younger brother of GJQD and that GJQD and he have talked about him possibly living with him or CD if released. He says in Lebanon he witnessed their father being physically abusive to GJQD.
EF says that GJQD’s personality seemed to change after an incident when he was assaulted while in the shower by one of his first wife’s family members. Though EF was in Lebanon at the time, he says he believes it was from this time that GJQD started to associate with the wrong people and became, in his words, an angry man.
EF says he feels GJQD has changed since being in prison. He says GJQD has matured and realises that he doesn’t need that life any more. He said GJQD is very scared and afraid to go back to Lebanon.
EF says he is worried about GJQD’s safety in Lebanon because of the constant war and unrest.
EF mentions in his Declaration that GJQD may start working in the tow truck industry if released. He says GJQD has often spoken about being sorry for what he has done and has given his brothers a promise in that regard.
In cross-examination EF said with reference to the shower incident that the brother or brothers of GJQD’s first wife had beaten him up following an argument he had had with her. He was aware of GJQD being in trouble with the law in Australia and he knew of the intervention orders regarding KL and the children. He said he is worried about the personal safety of GJQD if he must go back to Lebanon. Further, their father takes medication and walks with a stick but could shoot GJQD if he returned.
(d)GH
GH gave evidence that she is GJQD’s aunt.
GH confirmed the contents of a letter dated 26 October 2017 in her name in support of GJQD.
In that letter GH refers to the few mistakes GJQD has made in life and says how sorry he is and how he really wants to change his life around. She says GJQD wants a chance to bring up his boys properly and says she knows he will do the right thing.
GH says in the letter that she and her husband will help GJQD in any way they can so he can get his life back on track. She says her children who are GJQD’s cousins love him very much and will be very upset if he goes back to Lebanon. GH asks for her family to be kept together especially for his kids.
In cross examination GH said that both GJQD’s parents are alive but both are old. She said she is scared for him if he must go back to Lebanon because things could happen to him in the blink of an eye. She described GJQD’s father as difficult and as one who gets angry. She said his father already has a sick son and two single daughters at home, whom he supports.
(e)I J
I J confirmed in evidence the contents of her Statutory Declaration made on 1 December 2017.
In that Declaration I J says that she is married to CD, and that she is from the same village in Lebanon as her husband and GJQD.
I J says that GJQD is a loving, caring and supporting father. She says he loves his kids and will give them their time and will play with them. She says GJQD has good family support in Australia and that she believes he followed the wrong crowd and got involved in wrong things and made wrong choices.
I J said she knows GJQD regrets all his actions and behaviour but she says he should be allowed to remain in Australia. She says Lebanon is a very hard country for him to go back to; in Lebanon there is no real support for him as his parents are old and tired. I J says there is no government support in Lebanon.
In cross-examination I J said she understood that GJQD went to prison for breaching intervention orders. She said that maybe his wife led him to do so.
I J said that GJQD will not get on back in Lebanon if he must go there and will face lots of problems. I J said GJQD will suffer really badly if he must go back there. She said of GJQD’s father that he is a very strict and very hard man who expects others to follow his rules.
(f)WS
WS, a consulting psychologist, gave sworn evidence in which he confirmed as true and correct the contents of a report prepared by him dated 23 November 2017 (‘Report’).
That Report was prepared after a conference call with GJQD, conducted the day before. He had been engaged by GJQD’s lawyers by letter dated 17 November 2017. He was told the central issue is whether in GJQD’s case there are factors to be considered in deciding how to exercise the discretion under the Act.
WS indicated he had been in psychology practice for about 18 years and that he held appropriate qualifications set out in the covering letter dated 23 November 2017. I accepted him as sufficiently qualified by learning and experience to be in a position to express expert opinion.
In his Report, WS gives a very thorough history of GJQD and of his troubled background extending back to the time when he was a young boy living in a village Lebanon.
WS says that GJQD grew up in impecunious circumstances. GJQD indicated to him that his father was a violent man who beat him. WS says it appears discipline [in his case] was often more significant than it should have been. He refers to GJQD having been the victim at a young age of prolonged sexual abuse over a period of about 18 months. He states this would have led to some confusion regarding GJQD’s own sexuality.
WS indicates his view that GJQD’s childhood would have left him vulnerable to substance abuse and that while he engaged in drug use to manage his emotional state. He states in his Report, there is no doubt that over time there has been an element of dependence creeping in. He notes GJQD’s various periods of incarceration (following offending which he describes as mild until his first period of incarceration and following also the breakdown of his marriage) and notes also that there is no significant period of incarceration involving the use of drugs. WS however says he does not regard GJQD as meeting the criteria for the formal diagnosis of depression.
Further in the Report, WS says he rates GJQD’s risk of re-offending as medium.
WS specifies certain factors that increase GJQD’s risk and these include being the victim of both physical and sexual abuse and the traumatic experiences of his childhood. Additional risk factors include GJQD’s history of substance abuse and a variety of offences and progression in the seriousness of [his] offending. Regarding indications of a reduction of risk, WS specifies factors including having had a long term relationship, employment in the past and some evidence of the ability to gain from treatment. WS expresses the view that some of GJQD’s underlying problems are amenable to treatment, although he says how far this is possible is unknown.
In the course of a short cross-examination WS indicated his view that GJQD may suffer some mild depression. GJQD’s history of offending, WS seemed to attribute to abuse GJQD had suffered in Lebanon as a child. GJQD’s issues regarding own sexuality, he agreed, may have contributed to this also. It was his view that if GJQD was released into the community he would still require professional assistance.
ANALYSIS
In discussing how to deal with some aspects of the evidence, Mr Grant suggested anonymising the Applicant and persons mentioned in these reasons, and I have taken up that suggestion. Pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) I have made an order to that effect and also I make a direction that no part of the affidavits or Declarations on file (including the one made on 7 December 2017) shall be inspected or published except pursuant to leave of the Tribunal or by law.
Mr Gilbert SC submitted the Tribunal should prepare two sets of Reasons – one open and one closed – as he said is done in the Security Division. He did not develop this submission very far.
I do not consider I should follow that course; this is not a security matter. There is a tradition of open justice and the community has a right to know what is going on. However, purely for GJQD’s personal safety, I have agreed to anonymise the Reasons and make other orders.
Mr Gilbert SC submits that the discretion exists under s 501CA(4)(b)(ii) of the Act to revoke the original decision, notwithstanding that GJQD has a substantial criminal record and does not pass the character test as specified in s 501(6)(a) of the Act. I agree the relevant words in s 501CA(4)(b)(ii) give the Tribunal a very broad discretion. However in the exercise of that discretion, the Tribunal is bound to apply Ministerial Direction no 65 (‘Direction’) given by the Minister under the Act. See s 499(2A) of the Act.
By para 8(1) of the Direction, the Tribunal in performing its functions must take into account the primary and other considerations relevant to the individual case. In applying both primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight (para 8(2)). However, generally primary considerations should be given greater weight than the other considerations (para 8(4)).
Primary Considerations
Primary considerations in Part C of the Direction apply to GJQD and are set out in para 13(2). They include (a) protection of the Australian community from criminal or other serious conduct; (b) the best interests of minor children in Australia; and (c) expectations of the Australian community.
These primary considerations are further detailed as follows:
·Regarding para 13(2)(a) the Direction provides that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community (para 13.1(1)).
·Regarding para 13(2)(b), in considering the best interests of a child, matters to take into account by para 13.2(4) include (a) the nature and duration of the relationship between the child and the non-citizen […]; (b) the extent to which the non-citizen is likely to play a positive parental role in the future, considering the length of time until the child turns 18 and any court orders; (c) whether the impact of the non-citizen’s prior or likely future conduct will have a negative impact on the child; (d) the likely effect that any separation from the non-citizen would have on the child; (e) whether there are other persons who already fulfil a parental role in relation to the child; (f) any known views of the child […]; and (g) evidence of abuse or neglect of the child by the non-citizen.
·Regarding para 13(2)(c), the Direction (para 13.3(1)) specifies that the Australian community expects non-citizens to obey Australian laws while in Australia. It provides that it may be appropriate not to revoke a visa cancellation where the non-citizen has been convicted of offences in Australia or where there is an unacceptable risk that the non-citizen will breach the trust of the Australian community.
Other Considerations
The Direction at para 14 specifies that other considerations must also be taken into account where relevant. These include: (a) international non-refoulement obligations; (b) strength, nature and duration of ties; (c) impact on Australian business interests; (d) impact on victims; and (e) extent of impediments if removed.
Mr Gilbert SC submits that the discretion in s 501CA(4)(b)(ii) of the Act should be exercised in favour of GJQD having regard to a number of considerations – primary and other. They include: the length of time GJQD has been in Australia; the interests of his children; the level of support he has here; how circumstances are different now for him; the difficulties and risks he would face in Lebanon if returned there; and certain religious aspects. Moreover, if GJQD wished to see his children this could only be done in Australia. Going back to Lebanon would be very difficult for him. There is also, he submitted, the matter of GJQD’s claimed bisexuality.
Mr Grant however submitting such discretion should not be exercised in GJQD’s favour, referred to GJQD’s very serious offending over almost the entire period of his residency in Australia. He contended there was a real risk of GJQD re-offending. Although the primary consideration of the interests of his children weighed in GJQD’s favour, the position regarding the other considerations concerning Lebanon was problematic and would be outweighed in any event by the strength and nature of the case for maintaining the review decision. He mentioned GJQD’s attitude to law and authority based on his record of offending and noted in his submission that it had escalated over time. He drew attention to the fact that GJQD already had returned to Lebanon on a number of occasions in recent years. He also drew attention to the fact that GJQD had been convicted of offences involving dishonesty.
I am satisfied that GJQD has ties with Australia which have been maintained for nearly 20 years. He has fathered children here who are Australian citizens and he has close family members and other relatives who live here. The strength, nature and duration of the ties he has with Australia point towards an exercise of discretion in his favour.
I am not aware of any current continuing romantic or similar personal relationship GJQD has with anyone in Australia. Nothing was said to me about this in evidence.
I am not aware of any real estate owned by GJQD in Australia and I am not aware of his financial state of affairs. Nothing was said to me about this in evidence.
However, having acknowledged GJQD’s ties to Australia, it must also be said that, in my view, GJQD at the same time also has ties with Lebanon. I reject his statement that he has now little connection with Lebanon, though his ties with Australia include the children he has fathered here.
Both GJQD’s parents are alive and live in Lebanon, as do yet more siblings and other relatives. His parents live in the very village he grew up in.
Further indicative of GJQD’s continuing ties with Lebanon is the fact that he has travelled there several times in recent years, as recently as 2008 and 2009.
The evidence I heard about where GJQD might live and the work he might do if released from detention was far from encouraging. It seems he would live with his brother and work in the tow truck industry.
How long it might prove satisfactory for GJQD to live with his brother and his brother’s family, I am unable to say. The proposal to working in the tow truck industry seemed very vague to me.
I am not satisfied that the Australian community is protected from harm if GJQD is released. I am not satisfied, based on his history, and on the risk of him re-offending, that GJQD will not threaten or do harm if released. I consider this a circumstance contrary to the expectations of the Australian community.
As Mr Grant points out, over almost the whole of his 20 year period in Australia, GJQD’s presence here has been characterised by serious and significant offending. His record includes threats to kill and drug trafficking, as well as dishonesty and fail to abide by court orders. I note that Mr Gilbert SC himself agreed that GJQD had a serious criminal record.
I consider that based on his history, that GJQD appears to have great difficulty being law abiding and in complying with orders made by institutions of law.
I am not satisfied that GJQD is not a risk to the Australian community or that there is no risk he will not threaten harm to individuals if released.
I rely upon the expert opinion of WS who puts GJQD’s risk of re-offending as medium.
A medium risk of re-offending is quite worrying, given the serious nature of GJQD’s past offending.
In my view this medium risk of reoffending is not acceptable to the Australian community. The Australian community, I would think, is entitled to expect better from someone wanting to remain in Australia. But I note I was not provided with any specific evidence by the Respondent on this point.
I can accept that GJQD now does regret his actions and is sorry for them but he persisted in criminal behaviour over many years.
It can be said that GJQD has not been charged with any offences in recent times. I note also that Mr Grant has no instructions regarding misconduct by GJQD whilst in custody or detention.
However, this good conduct has come only very late in the piece and it is preceded by serious criminality extending over a lengthy period.
I am not satisfied I am able to say it is in his children’s best interests for him to remain in Australia. I consider that I lack the necessary evidence.
I accept that GJQD loves his children very dearly.
Loving his children very dearly is one thing. However, what is or may be in their best interests is quite another.
On this question, I have precious little to go on and I do not feel satisfied I am able to rely entirely on GJQD’s testimony. I have no evidence from the children themselves or from KL, their mother. I have no psychologist reports on this question. I have nothing from the Family Court, nor was MN called to give any evidence on the point.
AB says he wants to be a great father and lead by example. However he did not mention in evidence any of the examples he may have had in mind. Moreover, GJQD said in evidence, as I recall, that he has lost contact with his children. I exclude MN, but if this is right, I was left uninformed on how it might be now that he could be, or could still be, a positive influence in their lives.
The children have been living with KL for some time now without GJQD. It could be now that it is distinctly not in their best interests to have their lives with KL disrupted.
GJQD has contravened numerous family violence orders and the circumstances giving rise to each may or must have been upsetting to KL or the children.
I was not made aware of any specific harms which would follow for the children if GJQD returned to Lebanon, nor was I informed of any specific harms being done to the children out of living with KL and having her care for them. There were, however, some general comments made by GJQD about KL but nothing in writing such as a police report about her or similar was provided
I can accept though that GJQD could not see his children in Lebanon or fight for access or for parenting orders from there.
It was said in evidence by GH that her children love GJQD very much and would be very upset if he was returned to Lebanon. However, I did not hear from GH’s children who are GJQD’s cousins. Presumably they are adults or close to being so.
None of these cousins gave evidence and nothing in writing from them was provided to the Tribunal. No psychologist report in regards to this was tendered.
GH mentioned in evidence that it would be better to keep the family together, especially for GJQD’s children. That, however, seems to depend on whether it is in the children’s best interests for him still to be an influence in their lives.
I was not able to be satisfied that GJQD is bisexual, as he claims. This has implications on the question of whether GJQD’s life truly would be in danger if he returned to Lebanon. I would point out in this regard that this is not a refugee case, but my misgivings are with regard to the veracity of his claim.
It has been put to me that GJQD is scared he will be killed if people find out. I am unclear of the precise basis for this belief of his. GJQD indicated even he would or could kill himself.
GJQD’s claim to bisexuality has not been raised before now. I recognise though it was not put to GJQD in cross-examination that this was a recent invention, but I find it surprising that GJQD has not raised this earlier.
GJQD, at a time when legally represented, had an opportunity to disclose claimed bisexuality to the authorised review officer. This would have been the ideal time to disclose it because so much could depend on it, but it was not disclosed. No explanation was given for this, and I would have expected that one would be given.
It is not so much a question of corroborating GJQD’s sexuality as explaining why it has not been made known to those in authority much earlier. Embarrassment could be a factor, but that does not seem to be so in this case. On one view, GJQD has not been very discreet in the matter it seems in that he said he had frequented many homosexual bars and clubs in Melbourne and that he had an online profile.
GJQD went on oath to say that he had had many, many encounters with men in Australia. None of these men were called to give evidence, nor were any written statements from such people provided to the Tribunal. No one who saw him with any of them was called, nor was any person from any of the bars or clubs GJQD said he frequented. No print out of GJQD’s claimed online profile was given to me.
I find it odd that GJQD, having frequented bars and clubs and having developed an online profile and having had so many encounters, should be so concerned to restrict knowledge of this sexual issue to so few in his family. I am not suggesting by this that he had a duty to make disclosure of the matter but the two, on the surface, do not seem consistent.
Another troubling circumstance is that according to WS’s Report, GJQD indicated that his relationship with KL was never a very positive one, adding that he would have numerous affairs with women, but could not explain why. GJQD did not say to WS that he would seek male contact.
WS does mention GJQD telling him of an apparent encounter with a man which led to him being assaulted by his first wife’s brothers. However, WS and I only have GJQD’s word for this. I do not know whether there was ever a police report filed or not, or whether this figured in divorce proceedings. I was given nothing in writing about the matter.
In all the circumstances, I am unable to be satisfied by the evidence before me to make any definite finding about GJQD’s claim regarding his sexuality. I consider though a psychiatric or psychological report specifically addressing his claim of bisexuality could have assisted me in deciding whether to accept the veracity of his claim. My concerns could thereby have been dispelled. However, without such a report I have nothing independently to go on. I should add that I do not feel confident in merely accepting GJQD’s word in the matter, in light of my misgivings.
Because I am unable to make a finding about GJQD’s claim, I am unable to make a finding that GJQD will be in danger in Lebanon from his father or others because of his claimed sexuality. But, should I accept GJQD’s word and find that he is bisexual, I am not satisfied I can make a finding that he will suffer harm in Lebanon as a result of that. The evidence on that point given by GJQD I regard as purely speculative. In any event, I could not be satisfied that the possible risk of harm to him in Lebanon – if people were to find out – is such as to outweigh the risk of harm to others in Australia arising from the risk of him re-offending here.
I am, however, able to make a finding on the evidence that life would be very different for GJQD if returned to Lebanon. This is to be expected and seemed to be the view of all the members of the Applicant’s family that appeared as witnesses.
I heard much evidence about conditions in Lebanon. GJQD described it as war stricken, but I am not in a position to comment on conditions in another country in the absence of proper country information. No such information was provided to me.
I am therefore unable to make findings about Lebanon. I cannot say what job prospects are like there for someone such as GJQD, or whether there is a developed welfare system, or indeed whether it is war stricken or not.
It is true that GJQD has not lived as a resident in Lebanon for many years but he has travelled back there often enough in recent times
It seems it could be difficult for GJQD to take up residence with his parents. While his father particularly seems difficult, he is quite elderly now and may be infirm to some extent.
CONCLUSION
Having regard to my analysis above, I am satisfied that the correct or preferable decision is to affirm the review decision.
In summary of my reasons, I highlight that I am satisfied that GJQD’s criminal record is appalling and has involved drug trafficking, dishonesty, acts of violence, and disregard of law and legal rulings or orders. I am also satisfied that the risk of GJQD re-offending is too great, having been assessed as medium. As such, despite the ties GJQD has with Australia, which are not inconsequential, I consider there is a threat to those in the Australian community of harm or wrongdoing if GJQD is released. The Australian community is entitled to expect protection against this eventuality.
On the evidence before me, I am not in a position to find that GJQD’s release is in the best interests of his children; I am not well enough informed to be able to do so. Had I been in a position to do so, I may have ruled differently on this point. I am also not in a position to make a finding that GJQD is bisexual and will, on that account, be in danger in Lebanon. Had I been in a position to do so, I may have ruled differently on this point.
I am in a position to find that GJQD’s return to Lebanon will prove personally difficult for him and for his relatives and children in Australia.
Taking into account the primary and other considerations, I am satisfied there is risk of danger to the Australian community or sectors of it in revoking the decision under review.
Therefore, I do not consider that an occasion for a favourable exercise of discretion under s 501CA(4)(b)(ii) of the Act arises.
The decision under review is, accordingly, affirmed.
142. I certify that the preceding 141 (one hundred and forty-one) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member
..........[sgd].......................................
Associate
Dated 4 January 2018
Date of hearing 19 December 2017 Advocate for the Applicant Mr Dushan Nikolic
Solicitors for the Applicant
Counsel for the Applicant
Carina Ford Immigration Lawyers
Mr Guy Gilbert
Advocate for the Respondent Jamie Grant Solicitors for the Respondent
Sparke Helmore
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Standing
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Remedies
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