Hamana Hen and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Hamana Hen and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1098 (16 May 2024)
Division:GENERAL DIVISION
File Number: 2024/1055
Re:Lawrence Hamana Hen
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:16 May 2024
Place:Melbourne

Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the decision under review is set aside. In its place the Tribunal decides that the discretion in s 501(1) of the Migration Act 1958 to refuse the Applicant’s visa should not be exercised.
...................[SGN].....................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – applicant is a citizen of the State of Israel – applicant applied for an Australian visa – applicant does not pass the character test in the Migration Act – visa was refused on basis of predominantly overseas offending – applicant made representations – delegate affirmed visa refusal – applicant sought review by Tribunal – ministerial direction applied – primary and other considerations – applicant has several domestic violence offences within marriages – some other general offending – parties concede risk of family violence re-offending is low to moderate – risk of general offending low – parties concede best interests of minor child in Australia supports granting of visa – rehabilitative steps taken by applicant – decision under review set aside and new decision substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Crimes Act 1900 (Cth)
Migration Act 1958 (Cth)
Cases
Arachchi v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Ismail and Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Secondary Materials
Migration Act 1958 – direction under s 499 – Direction No. 99 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 3 March 2023)
REASONS FOR DECISION
Senior Member D. J. Morris
16 May 2024
INTRODUCTORY

The Applicant is a 55-year-old man who is a citizen of the State of Israel. He applied for a combined Partner (Provisional) Class UF visa and Partner (Permanent) Class BC visa. The sponsor for these visas was his wife who is an Australian citizen.
He was born in Israel and spent his formative years there. He married there to a woman who will be called Ms WO, and had two children. The marriage ended in divorce. He subsequently emigrated to the United States of America. He married for a second time, to a woman who will be called Ms WS. There was one child of that marriage. That marriage also ended in divorce. The Applicant returned to Israel. Subsequently he came to Australia as a tourist. He met an Australian woman. They commenced a romantic relationship and married. She will be called in these reasons Ms WT. That marriage lasted some two years and ended in divorce. There are no children from this relationship.
Subsequently, a friendship the Applicant had with an Australian woman developed into a romantic relationship. This woman had a new-born son from an earlier relationship, but her partner had left her. The Applicant returned to Israel, in company with this woman and her young son. They married there in November 2020, and lived together in Israel for around a year, before his wife, who will be called Ms WF, returned to Australia. Ms WF is the visa sponsor.
MIGRATION HISTORY
The Applicant first came to Australia in February 2017 as a tourist holding a visitor visa. On arrival, he declared on the incoming passenger card that he did not have any criminal convictions. He travelled out of Australia to visit New Zealand and Thailand, and on two other re-entries to Australia filled out incoming passenger cards with the same declaration, that he did not have any criminal convictions. This was untrue.
In October 2017, the Applicant applied for a Temporary Partner (Class UK)(subclass 820) visa. The sponsor for that visa was the Applicant’s third wife, Ms WT. Ms WT later withdrew her sponsorship when she separated from the Applicant. The Applicant was granted a Bridging B (Class WB) visa and departed Australia on 24 September 2019. Six days later this visa was cancelled by the Department of Home Affairs under s 128 of the Migration Act1958 (‘the Act’). A delegate of the Minister found there were reasons to cancel the visa under s 116 of the Act because Mr Hamana Hen failed to declare his criminal history in his visa application and on incoming passenger cards. The Applicant sought revocation of the cancellation decision and a different delegate decided not to revoke the cancellation in January 2020.
Separately, on 2 December 2019 a delegate of the Minister decided not to grant the Applicant a partner visa on the basis that he was no longer in a relationship with Ms WT.
On 3 March 2021, the Applicant lodged an application for a provisional partner visa with Ms WF as sponsor. That visa was refused on 9 February 2024 under s 501(1) of the Act. Because of recent changes to regulations under the Act, an application for a partner visa may now be brought by the prospective visa holder themselves, rather than by the sponsor. Mr Hamana Hen lodged an application for review with the Tribunal on 20 February 2024.
HEARING
A hybrid hearing was held on 23 and 24 April 2024. Mr Angel Aleksov, of counsel, appeared for the Applicant. Mr David Brown, Senior Lawyer with the Australian Government Solicitor, appeared for the Respondent. The Applicant participated by video link, as did Mr Patrick Newton, an expert witness. The Applicant’s wife, Ms WF, gave evidence in person. His first wife, Ms WO, gave evidence by telephone. The Tribunal appeared by video link. The Tribunal appreciates the assistance provided by interpreters of the Hebrew and Russian languages.
The Applicant submitted a Statement of Facts, Issues and Contentions. So did the Respondent. The Tribunal also admitted into evidence the documents listed in the annexure to these reasons.
At the conclusion of the hearing the Tribunal reserved its decision. For the reasons that follow, the Tribunal has decided that the decision under review should be set aside. A new decision is substituted that the discretion should not be exercised to refuse the visa.
QUESTIONS BEFORE THE TRIBUNAL
Does the Applicant fail the character test?
At the start of the hearing, Mr Aleksov reiterated the concession in written submissions that it was accepted by the Applicant that he does not pass the character test.
Section 501(7) of the Act provides relevantly as follows:
For the purposes of the character test, a person has a substantial criminal record if:
…
(d) The person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or...
Section 5AB of the Act provides that, in calculating whether a person has been sentenced to 12 months or more imprisonment, whether a single sentence is imposed for more than one offence does not affect the calculation, in other words where a court imposes an aggregated sentence, it can be counted towards deciding whether a total gaol sentence is 12 months or more.
Applicant’s offending in Israel
Before the Tribunal was an Israeli Police Criminal Record dated 19 October 2023 which recorded that in 1996 the Applicant was convicted of two offences: Assault of a public servant and Obstruction of a public servant. For these two offences he was sentenced to a term of imprisonment for four months, suspended for two years (GD, p 47).
The document also recorded that the Applicant was convicted before Haifa Magistrates Court in 1998 of offences committed in July 1997, namely Theft and Threatening behaviour. For these offences he was sentenced to a term of imprisonment for six months, which was suspended for two years.
Also in 1998 the Applicant was before the Magistrates Court in Haifa and convicted of four offences. The first was the offence of Threatening behaviour, with the date of the offence being March 1998. The second was the offence of Common assault, with the date of the offence being 13 December 1997. The third and fourth offences of Disobeying a lawful directive and Threatening behaviour occurred on 22 December 1997. For this group of offences he was sentenced to a custodial sentence of four months, to be served in the community, a suspended sentence of 12 months with an undertaking to refrain from offending, and fined 3,000 New Israeli Shekels (NIS).
In 1989 the Applicant was before the Haifa Magistrates Court (GD, p 48) and convicted of the offence of Insulting a public servant. For this offence he was fined 50 NIS and made an undertaking to avoid committing an offence for 30 days or otherwise pay a further fine of 1,500 NIS.
In 1988 the Applicant appeared for the first time before the Magistrates Court in Haifa charged with the offence of Disrupting a police officer in carrying out his duty. No conviction was recorded; however the Court issued a probation order for a six-month period, that he avoid committing an offence of violence for a year or be fined 1,000 NIS.
On 7 September 1998, the Applicant was convicted of the offence of Common assault; Threatening behaviour (2 counts) and Disobeying a lawful directive. He received a custodial sentence of four months, a sentence of imprisonment for 12 months suspended for three years, and was ordered to pay a fine of 3,000 NIS.
The Israeli Police Criminal Record also recorded (GD, p 46) that in 2015 the Haifa Magistrates Court convicted the Applicant of three offences committed in October 2006. The offences were: Using a forged document; Obstruction of Court proceedings; Forgery in aggravated circumstances; and Obtaining property by deception in aggravated circumstances. For this group of offences the Applicant was ordered to serve a period of incarceration for six months. The sentence was suspended for three years on the undertaking that the Applicant refrain from committing offences for which he has been convicted.
Applicant’s offending in the USA
Before the Tribunal was a United States Department of Justice Federal Bureau of Investigation (FBI) Criminal History Record dated 19 October 2018 (GD, p 37). That record stated that on 13 June 2014 the Applicant was convicted in the Bergen County Superior Court of the State of New Jersey of the following offences: Contempt – violate judicial domestic violence order; Invasion of privacy – record sexual act; and Aggravated assault – attempt/cause. For this group of offences he was sentenced to a total term of 364 days incarceration in the county gaol.
The Tribunal is satisfied that the facts of these overseas offences mean that the Applicant does not satisfy the character test under the Act and so the concession by him was properly made. He has a ‘substantial criminal record’ in terms of s 501(7)(d) of the Act.
As a consequence, the discretion in s 501(1) of the Act to refuse to grant the visa was enlivened.
Applicant’s offending in Australia
Apart from the offending referred to above in Israel and the United States, the Applicant has offended in Australia. Before the Tribunal was a National Police Certificate (GD, p 34) produced by the Australian Federal Police. It recorded three offences the subject of a Magistrates Court hearing in Melbourne in July 2019: Contravene Family Violence Intervention Order; and Contravene Personal Safety Intervention Order (2 counts). For these three charges the Court did not record a conviction but fined Mr Hamana Hen an aggregate of $700.
Having made the finding on the basis of the Applicant’s overseas offending that he does not pass the character test and that the discretion is enlivened, the question before the Tribunal thereby becomes whether, notwithstanding that, the Applicant should be granted the visa. In considering this question, the Tribunal must have regard to any direction made by the Minister under s 499 of the Act. The relevant direction is Direction No. 99 (‘the Direction’). Decision-makers, including this Tribunal, must, under s 499(2A) of the Act, comply with the Direction. This means that the Tribunal must take into account relevant considerations spelt out in the Direction. It may also take into account any other matter relevant to the general provisions and purpose of the Act.
THE MINISTERIAL DIRECTION
The Direction sets out objectives, principles and how a decision-maker should exercise the discretion. It lists five primary considerations which must be considered by decision-makers. It also sets out four other considerations, which may be relevant to the non-citizen’s circumstances.
Primary consideration: Protection of the Australian community from criminal or other serious conduct (paragraph 8.1)
The nature and seriousness of the conduct (para 8.1.1)
The Tribunal is obliged by paragraph 8.1.1(1)(a) of the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children, or acts of family violence.
Mr Aleksov conceded that the Applicant’s past criminal conduct may be described as ‘very serious.’ He has not committed any sexual crimes, but he has committed an assault on a former wife, Ms WS, which the Applicant conceded involving him striking her either on the upper body or her head, so as to cause her spectacles to fall off. He has also committed assaults against his first wife, Ms WO which he and she stated comprised of verbal assaults but no physical contact. He has committed breaches of Court-imposed family violence orders in Israel, the USA and Australia. There is no evidence of any crimes against children.
Paragraph 8.1.1(1)(b) of the Direction lists other categories of crimes or conduct that are considered by the Australian Government or Australian community to be serious. They are causing a person to enter into a forced marriage; crimes committed against vulnerable members of the community such as the elderly and the disabled, or government representatives or officials due to the positions they hold or in the performance of their duties; and any conduct that forms the basis of a finding that a non-citizen does not pass the character test that is dependent on a decision-maker’s opinion; or crimes in, or related to, immigration detention. None of these categories are relevant.
Paragraph 8.1.1(1)(c) requires that the Tribunal must have regard to the sentence imposed by the court for a crime or crimes. Although the Israeli Courts imposed various prison sentences on the Applicant for his offending in the 1980s, all of them were suspended. He has served one custodial sentence, which was in the County Jail in New Jersey, and the evidence is that the sentence was one day short of a year. The Applicant stated that he was released after nine months because of good behaviour.
In respect of the three related Australian offences, the Court imposed no conviction. The Applicant said in his evidence that he was not found guilty and believed that the $700 fine he received was for ‘court costs’. The Tribunal does not accept this. The fact that the National Police Certificate records a fine being imposed indicates (in the absence of any other Court record) that there was a finding of guilt, albeit with no conviction. A fine could not have been imposed if there was no finding of culpability. However, the fact that there was no conviction, like the first offence in Israel, gives an indication of the weight of seriousness that the Court attached to the particular offences.
Paragraph 8.1.1(1)(d) requires the Tribunal to consider the frequency of the offending or whether there is any trend of increasing seriousness. Mr Brown submitted that the Respondent does not contend there has been a trend of increasing seriousness in Mr Hamana Hen’s offending, but that ten offences in three temporal clusters represent a significant frequency. The Tribunal agrees there has been some spates of frequent offending, but also agrees with the Respondent’s characterisation that they occurred in three ‘clusters.’ The facts do not support a conclusion that the Applicant is an habitual offender.
In his evidence, the Applicant told the Tribunal that his 1987 conviction for disrupting a police officer involved an incident where the officer wanted to give Mr Hamana Hen a parking fine. He said he placed his hand on the officer’s notebook, as he commenced to write the ticket, asking the officer to change his mind. He said he was aged around 18 at the time. In respect of the 1988 conviction for insulting a public servant, the Applicant said a bus was blocking his car. He had an argument with the bus driver and the police arrived. He said the bus blocked him for no reason because he was parked before the bus station.
In respect of the offences in December 1997 and March 1998, including common assault, Mr Hamana Hen said he was in the middle of divorce proceedings with Ms WO. He said there was no physical violence but there was “screaming and high tone.” In cross-examination he said that the assault charge related to insulting and shouting, which are also considered to be an assault. He accepted that in the heat of the arguments he may have made threats to Ms WO but as it was 40 years ago, he did not remember the detail.
In respect of the breach of a legal order, the Applicant said that he went to their former marital home when he thought Ms WO was at work. He knew there was an apprehended violence order that he keep a certain distance from her, but he wanted to pick up a treadmill which was at the house which he said she did not use. As it happened, Ms WO was at home. He said he believed the theft conviction related to the treadmill; “I did not take any other item.” He said they also had an argument when he went to the house to pick up his uniform for his army reserve service.
The Applicant was asked about his most recent Israeli offences, which related to incidents in 2006. He told the Tribunal that in 2006 he wanted to travel to the United States and the Court asked him to bring ‘assurances’ before it from two people for securities to ensure that he would pay child support while he was out of Israel. The Applicant told the Tribunal that there are companies that provide such assurances, and they brought documents forward which he submitted to the Court, not knowing they had used false documents. He said he did in fact continue to pay child support for the minor children he had of his marriage to Ms WO.
Mr Brown asked Mr Hamana Hen to confirm that he asked two guarantors to provide pay slips to assure the Court they were able to meet the amount of money they were guaranteeing, should the Applicant fail to return to Israel within a month of departing. Mr Hamana Hen confirmed that understanding was correct. He then conceded he did not return to Israel because he received a good offer of work in the USA, so he decided to stay. He said the guarantors did not lose any money, because he continued to provide child support. Mr Hamana Hen said he did not inform the Court of his changed travel plans, but he did inform his ex-wife. Mr Brown asked if he thought he had an obligation, in these circumstances, to inform the Court. The Applicant responded that he assumed that if he told Ms WO and she did not complain, “then there wouldn’t be an issue.” He said he was unaware that the pay slips were bogus.
Mr Brown then took the Applicant to a statement he made dated 20 May 2021 (GD, p 94) in which he wrote “I created false pay slips”, not that someone else did. Mr Hamana Hen said that he had misunderstood and that the assuring company had provided the guarantors, but that he accepted responsibility because he had submitted the material to the Court.

The Respondent noted that this was the first time it has been suggested that a company providing guarantees was involved, and noted that the Applicant pleaded guilty to providing false information. The Applicant said that would not have interested the Court, and he had to take responsibility because there was no defence that someone else did it.
The Applicant said he was sentenced to service in the community and told the Tribunal he worked in a hospital assisting the treatment of cancer patients in fulfilment of this Court order.
The Tribunal has significant difficulties with accepting the Applicant’s accounts of what happened in respect of the lodgement in Court of false materials. The fact that the Applicant has not in previous statements suggested that a company had provided bogus pay slips which he did not know were false, as he now asserts, is significant. This also is not consistent with the Applicant’s earlier statements that he, not someone else, created and lodged the false pay slips. The Tribunal reaches the conclusion that the Applicant was trying to put a more favourable gloss on this old offending in this hearing, and is satisfied that his guilty plea in relation to the offences was precisely because he knew fake documents had been submitted to the Court. However, the Tribunal also accepts that Ms WO in her statement said she accompanied the Applicant to Court to assure the judge that Mr Hamana Hen always provided child support during his time in the United States, in accordance with the agreement they had come to.
In respect of the offending in the USA, it involved his relationship with Ms WS. The Applicant said he married Ms WS in 2007 and the marriage lasted for six years. He said he had noticed a change in his wife’s behaviour and so told her he was going away to another state for work reasons for two days. In fact, he told the Tribunal, he booked into a hotel two streets away from their house. Mr Hamana Hen said a ‘nanny Cam’ had been previously set up in the house to monitor their young son and he had remote access to it. He activated the camera and observed Ms WS having sexual congress with a person he described as his best friend. He said he was unaware that filming a person without their permission was an offence in New Jersey and that he did not share the clip with anyone. He returned to the house and confronted Ms WS and his friend. He said while he was arguing with the other man, Ms WS moved between them to intervene. The Applicant told the Tribunal he struck out and knocked Ms WS, dislodging her spectacles, but said she did not fall down. This sequence of events led to the convictions for invasion of privacy by filming a sexual act and assault. In response to a question from Mr Brown, the Applicant said that he and Ms WS separated that day.
Mr Hamana Hen agreed that the date of the offence was February 2013. He was asked about subsequent offences for violating a domestic violence order in August and November 2013. The Applicant said the facts might be that he was in the area close to Ms WS’s home for work, but thereby breached a condition to keep a stipulated distance from her. He said other breaches were related to him visiting the kindergarten where his and Ms WS’s son attended, so he could see his son. He was reported and pleaded guilty.
The Applicant said he did not attend rehabilitation programmes when he was in the County Jail in New Jersey because they were not offered. He said that on release he spent one week in immigration detention and then was brought before an Immigration Court Judge. He said the judge asked if he faced any danger if he was returned to Israel and he said he did not, and so the judge approved his expulsion from the USA on the basis of his visa being cancelled. Mr Hamana Hen said he asked to be allowed to depart the USA voluntarily because he considered Ms WS would continue to bring complaints against him for trying to make contact with their son. He was permitted to immediately depart the USA.
The Applicant said he came to Australia in 2017 as a tourist. He said a company in Israel helped him apply for a visitor visa and lodged it with the Australian Embassy in Tel Aviv. He agreed that he signed the application and that there was a question relating to whether the person applying for the visa had a criminal record. When Mr Brown pointed out that the application stated he did not have criminal record, Mr Haman Hen responded, “I don’t know.” He agreed that he signed the visa application.
In respect of the incoming passenger card, the Applicant said he asked the traveller next to him on the aircraft to help him with the form. He said, “I gave him my passport and the only question he asked was where I would be staying. In hindsight, I should’ve asked him what was written on the card.” The Applicant said he was in Australia for a period and then went to New Zealand for about six weeks, then returned to Australia. After nine weeks, he then travelled to Thailand, and returned to Australia. On this occasion he was stopped by Immigration officers who asked him about his incoming passenger card and what had happened in the USA. He said they interviewed him for about 30 minutes then returned his passport and said he was free to go, “I didn’t try to hide anything, I just didn’t fill in the card correctly.”
Mr Hamana Hen told the Tribunal he had taken a photograph of the incoming passenger card on his mobile phone and replicated the answers on two further incoming cards – because he could not read English, and told the Tribunal that the only question his fellow traveller asked him when filling in the card for him was where he would be staying.
The Applicant said he arrived back in Australia in July 2017 and remained until September 2019. He told the Tribunal he met his third wife, Ms WT, at a barbecue to mark Israel’s independence day. He married her a few months later. They lived together until January 2019 when he said Ms WT decided to go back to her third husband. He said she moved out of the marital home. At the time he was awaiting a decision on the partner visa application Ms WT had sponsored. The Applicant agreed with Mr Brown that Ms WT informed the Department that she was no longer in a relationship with him.
Mr Brown asked the Applicant about the three Australian breaches of orders. He responded, “She came to take something. Told me to leave. Took it to Court. The Judge said I was in the right and ordered both of us to pay $700 court costs.”
Mr Brown noted that the details of the offending suggested Mr Hamana Hen drove by Ms WT’s residence. He responded, “I had a business with a fleet of eight cars. It might have been one of my workers, it wasn’t me driving the car.”
The Tribunal finds these responses of Mr Hamana Hen not to be in accord with the details of the offences. Although the details before the Tribunal are ambiguous, the Tribunal is satisfied that the three offences relate to the Applicant driving past the residence or the place of work of Ms WT on three occasions. The Tribunal does not accept it might have been one of the Applicant’s work cars being driven by another person; I am satisfied that the Court recorded a guilty plea, which means the Applicant accepted all the elements of the offence. It may be that the Applicant is confused about the circumstances in giving evidence that Ms WT came to ‘take something,’ that could have been another occasion. All these offences related to driving past particular locations.
The Tribunal also does not accept all of the Applicant’s evidence about the incoming passenger cards. Even if it is accepted that he asked a fellow traveller to help him, and provided his passport, there was other information on the cards that had been filled in, such as Mr Hamana Hen’s contact details in Australia and his occupation. So his conversation with his helper was more than he said, and it is reasonable that the person filling in the card would ask the person he or she was helping about each of the questions on the card. In spite of the fact that he may have been helped, the onus is on a traveller who signs a card that the declaration therein is accurate and truthful. These cards were not. It is also axiomatic that a person applying for an Australian visa has a personal responsibility to be truthful and complete in his or her responses to questions; it is irrelevant whether they are filling in the application form on-line or whether a travel or immigration agent are assisting them.
Paragraph 8.1.1(1)(e) requires the Tribunal to consider the cumulative effect of repeat offending. There has been repeat offending in respect of breaching orders made by Courts in three countries. Although the Tribunal does not consider Mr Hamana Hen an habitual offender, it is concerning that he has a steady history of flouting the orders of Courts. If that may be originally put down to youthful impetuosity in the early incidents in Israel, that excuse is not available for subsequent breaches of orders made by the Courts. The Applicant strikes the Tribunal as an intelligent man. He should have been more cognisant of his obligation to obey orders in terms of his conduct that the Court had imposed.
Paragraph 8.1.1(1)(f) requires the Tribunal to consider whether the Applicant has provided any false or misleading information to the Department, including by not disclosing prior criminal offending. The delegate found that the Applicant had not disclosed his overseas offending in his Australian visa application, which is false representation. Given that Departments of State in Australia share relevant information, the false declarations made by the incoming passenger cards are relevant to this particular part of the Direction.
Paragraph 8.1.1(1)(g) of the Direction requires the Tribunal to consider whether the non-citizen has re-offended after being warned by the Department, or otherwise made aware in writing of the consequences of further offending on the person’s migration status. Although on the evidence of the Applicant he knew, because of his appearance before an Immigration judge in the USA, that he had compromised his entitlement to remain in that country, the Tribunal considers the wording ‘or since otherwise being made aware’ in the Direction must be confined to being aware in relation to a person’s migration status in Australia, not how their conduct may have affected the exercise by foreign governments of their own migration regimes. However, it is factual that the Applicant was generally aware, because of what happened in the United States, that offending can affect a non-citizen’s permission to remain in a foreign country.
The Direction includes a clause, at paragraph 8.1.1(1)(h), requiring the Tribunal to have regard to a situation where a non-citizen’s offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia. The Tribunal considers that most of Mr Hamana Hen’s offending in Israel would have equivalent Australian offences for the same conduct, with the possible exception of the offence of insulting a public servant, minor as the circumstances were. In respect of the USA conviction for assault, Australia has equivalent offences. In relation to the offence of invasion of privacy by filming a sexual act, the Tribunal is unaware of a direct Australian equivalent to the New Jersey law. Section 91L of the Crimes Act 1900 (Cth) makes it an offence to film another person’s private parts but an element of that offence is that the person undertaking the filming must be doing so for their own sexual gratification of for that of others. The facts of this offending, as far as they are known to the Tribunal, do not fit this category. It is possible that there could be a general correlative offence for invading someone’s privacy. The Respondent did not make submissions on this point.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
The Direction states that decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. The Direction states that some conduct and the harm that would be caused by it, if it were repeated, is so serious that any risk that it may be repeated is unacceptable.
Paragraph 8.1.2(2)(a) of the Direction requires the Tribunal to have regard to the nature of harm to individuals or the community should the non-citizen engage in further criminal or other serious conduct, and the likelihood of engaging in further criminal or other serious conduct. The nature of harm to the community if the Applicant continued to offend would, because of the nature of his offending, be more than likely to be in the nature of a family violence infraction. Also because of the nature of the Applicant’s past offending, potential offending would be likely to relate to Ms WF or a future domestic partner, but not her son or any other child.
The Tribunal had before it two reports on the Applicant by Mr Patrick Newton, forensic and clinical psychologist. The first was dated 18 July 2023 and a supplementary report was dated 19 April 2024. Mr Newton also gave oral evidence.
Mr Newton wrote relevantly, in his second report:
I have carefully reviewed the risk assessment…of my first report, in the light of my re-assessment of Mr Hamana. This included a review of each item within the tables presented in those paragraphs to ensure they remain accurate.
In this regard, Mr Hamana has made some progress towards addressing ‘Negative Attitudes’ (#5 of the risk factors on the B-SAFER, paragraph [43]). In particular, Mr Hamana was at pains to stress that a) he accepts full responsibility for the violence that occurred in his past relationships and b) that he is committed to ensuring that such events will never happen again. While this is positive, Mr Hamana also indicated that he continues to hold that he had been the victim of false allegations in regard to the incidents involving [Ms WS]. Thus, no change to the scoring of this item or the overall risk category on the B-SAFER would be warranted. That is, Mr Hamana remains assessed at posing a moderate-low risk of recidivism to intimate partner violence.
Further, no items of the HCR-20 version 3 need to be changed on the basis of this assessment. That is, it remains my opinion that Mr Hamana is accurately assessed as posing a low-moderate risk of violent offending.
Finally, no factors related to Mr Hamana’s risk of general recidivism are affected by the material reviewed in his reassessment. That is, I remain of the opinion that he is at low risk of recidivism to general offending.
(Bold type in the original.)
Mr Newton, further on in the report, expressed the view that the moderate-low risk of committing further intimate partner violence is trending lower with the passage of time and could be reduced through participation in further offence-specific treatment. He said the low-moderate risk of committing violence outside of an intimate partner setting is also trending lower with the passage of time. In regard to the low risk of committing general offences, Mr Newton opined that the ‘risk of general offending is small.’
In his oral evidence, Mr Newton said that the Applicant is not quite in the ‘low risk’ range and that intervention was necessary, such as a men’s behaviour programme, but it was not absolutely necessary. He said that Mr Hamana Hen had made some progress through counselling but has ‘some way to go.’ In response to Mr Aleksov, Mr Newton said that he considered the Applicant’s risk of recidivism was moving in the right direction and that his prognosis of moving further (i.e. the risk falling lower) is in his view moderately good. He expressed the view that the Applicant had not only expressed a willingness to undertake further rehabilitative courses, but had also taken concrete steps to do so. He said he regarded Mr Hamana Hen’s intentions in this regard as sincere and that there are, in his view, good prospects of the Applicant remaining offence-free into the future.
The Tribunal accepts, as did the parties, the level of risk assessment given by Mr Newton. It further accepts Mr Newton’s opinion that the trend is heading in the right direction. The Applicant does not strike the Tribunal as someone with an entrenched violent nature, although it would be a fair conclusion that a short temper has led to a number of his offences, especially when he was a young man. However, there is no evidence of any recent physical violence towards Ms WT and none at all towards Ms WF, who gave oral evidence at the hearing.
There is therefore a tension in weight that should be assigned to this primary consideration with sporadic but relatively serious offending on the one hand, and improvements in conduct and ‘concrete steps,’ to use the words of Mr Newton, on the other to ameliorate his behaviour. The USA offending, in particular, must, in the Tribunal’s view, be viewed within the context of a man finding his wife was having a sexual affair with someone he regarded as his friend, and confronting them, and in the reasonable (in the Tribunal’s view) yearning of a father to see his son at kindergarten after the marriage had broken up.
The Tribunal finds that this primary consideration weighs somewhat against exercising the discretion to grant the visa.
Primary consideration: Family violence committed by the non-citizen (paragraph 8.2)
The Direction requires the Tribunal to consider whether a non-citizen has been convicted of any offence or had charges proven that involve family violence.
It was conceded by Mr Aleksov that this primary consideration is relevant to the Applicant’s offending history. In his submissions to the Tribunal, he submitted that the nature of the offending in his category is at the lower end of the scale apart from the single incident in the United States.
The Applicant’s first wife, Ms WO, in her statement and evidence, agreed that she went to the police and reported Mr Hamana Hen for his conduct but said she does not recall he ever touched her or hurt her physically. She said that looking back she considered his convictions for making threats, breaching an intervention order and assault led to a disproportionate punishment, but she said at the time she just wanted to hurt him, because it was a bitter separation. She described their relationship as tumultuous.
Mr Aleksov submitted that there is no evidence of domestic distress or hostility in the Applicant’s current marriage with Ms WF, which is itself indicative of rehabilitation. Mr Brown said the Respondent accepts that the Applicant has expressed some remorse and accepted responsibility for his family violence offending but put to the Tribunal that Mr Hamana Hen continued to commit family violence offences even after spending nine and a half months in gaol in the USA.
The Tribunal finds that the Applicant has committed offences in Israel and the United States which fulfil the ingredients in paragraph 8.2(2) of the Direction as family violence. In regard to the Australian offences, on the material before it the Tribunal considers this offending to be at the very lowest part of the scale, as it solely involved driving past a location, and no contact at all with the protected person. While it is always wrong to breach the conditions of a Court order, the fact that no conviction was recorded is significantly relevant to the weight I give to those three Australian breach offences.
The USA offending is serious. While the Tribunal may accept some context, the fact is that the Applicant himself admitted striking out at his then wife. He said he immediately regretted it. Clearly the events of that day ended the marriage and, more painfully for the Applicant, severed his ability to see his young son. He told the Tribunal that he has tried to make contact through social media, so far without success, but hopes that when this son is older, he will be able so to do.

The oral evidence of Ms WO was also important. The tenor of it was that she and the Applicant were young and impetuous, and there was significant volatility in their marriage. She said both have mellowed and made a particular point of kindnesses that the Applicant had shown to her and her current husband when he suffered a health scare. She said she had met Ms WF when she resided in Israel with the Applicant and had lightly remarked to her that she wished the Applicant had treated her as well as he does Ms WF, when they were married. The Tribunal places certain weight on Ms WO’s assessment because she has current knowledge of the Applicant and has no particular stake in whether or not he is granted an Australian visa.
However, in spite of well put submissions to the Tribunal about the Applicant posing a ‘negligible’ risk of further family violence offending, the Tribunal is unpersuaded that it should depart from Mr Newton’s professional assessment. There is a low to moderate risk, a risk that is trending downwards. But at present that is the risk that is found.
The Tribunal finds this primary consideration weighs against revoking the visa cancellation, to a moderate extent.
Primary consideration: the strength, nature and duration of ties to Australia (paragraph 8.3)
The Direction requires that decision-makers must consider any impact of a decision relating to a non-citizen’s visa on the person’s family members in Australia, where those family members are Australian citizens, Australian permanent residents or people who have the right to remain in Australia indefinitely. The most recent Direction has elevated this consideration to the status of a primary consideration.
As mentioned above, the Applicant is married to an Australian citizen, Ms WF. He has an Australian citizen stepson to whom, it was not in contest, he is a father figure. He has lived in Australia for around two years but, even in that short time, built up what appears to have been a successful business as a locksmith. He has other connexions here, in particular his mother-in-law and a brother-in-law, who lodged a statement of support.
Ms WF’s mother is aged 80. Her health is not good. She has cardiac symptoms and severe pain in her hip after hip surgery. Her sight has deteriorated to the extent that she is almost blind. There is substantial medical evidence before the Tribunal to support the health conditions Ms WF’s mother faces, including macular degeneration. Ms WF is unable to work because she must care for her mother. She and her son live in a one-bedroom apartment of her mother. The Applicant provides some financial support to Ms WF and his stepson, but his evidence was that his current work, as a driving instructor, has been significantly affected by the recent terrorist incursions into Israel, and the subsequent conflict, because parents are reluctant to let their children take driving lessons in such a parlous general atmosphere.
Ms WF said that they previously rented a two-bedroom house in Melbourne before the Applicant returned to Israel, and their intention, if he is granted an Australian visa, is to obtain such a place again. The Tribunal accepts Mr Aleksov’s submissions that Ms WF’s and her son’s material circumstances would significantly improve if the visa were granted to the Applicant. The Respondent submitted that refusal of the visa has a significant impact on them and conceded that the Minister’s accepts this weighs significantly against refusing the visa.
The Tribunal notes the evidence in the papers that the Applicant has engaged, using Mr Newton’s word, concretely in therapy sessions to improve his response to stress and his understanding of his responsibilities and proper conduct in a domestic relationship.
The Tribunal also notes the evidence that, although he only resided in Australia for a short time, the Applicant became actively involved in a Jewish benevolent organisation. The Director of the organisation stated (GD, p 129) that the Applicant was an active member until he left Australia and said, “Through his generosity and kindness Lawrence is highly respected in our community, assisting people with finding jobs and other needs.” The Director said he made this statement in the full knowledge of the Applicant’s offending history and past relationship history. This indicates some positive contribution to the Australian community, albeit only for around two years.
Notwithstanding the relatively short time the Applicant resided in Australia, the particular circumstances of being married to an Australian citizen and having a stepson here leads the Tribunal to find that this primary consideration weighs very significantly in favour of exercising the discretion to grant the visa.
Primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 8.3)
The Direction requires decision-makers to make a determination as to whether non-revocation is or is not in the best interests of a child affected by the decision. To be considered under this part, a child must be aged under 18 years at the time of the decision. Where there are more than two relevant children, the best interests of each should be given individual consideration to the extent that their best interests may differ.
The only relevant minor child is the Applicant’s stepson. He is aged 6 and an Australian citizen. The evidence is that his biological father left Ms WF very soon after their son’s birth. Mr Aleksov submitted, and the Tribunal accepts on the basis of the oral evidence of Ms WF, that for all intents and purposes, the Applicant has fulfilled a fatherly role in the life of this minor child from a very young age, and certainly so once he moved in with Ms WF and when she and her son travelled to Israel and lived with the Applicant for a year.
There is evidence in Ms WF’s statement that, from abroad, the Applicant has provided regular financial support for his stepson including funds for purchase of school uniform, after-school care, holiday programmes and swimming lessons, although with the downturn in his employment owing to the current volatile situation in Haifa, this financial support has lessened.
There is evidence from Ms WF and in a statement from her mother that the Applicant provided accommodation in Australia for Ms WF and her son, and would be able to provide accommodation for them and for his mother-in-law if the visa were granted. It is relevant to the Tribunal that the biological father of this child has refused to approve him residing permanently in Israel and thereby being able to apply for Israeli citizenship, which limits educational possibilities and entitlements in that country.
The Respondent accepted that it is in the best interests of the Applicant’s stepson for the visa to be granted, but also submitted that this should not be determinative.
The prospects for this child would objectively be greatly improved if the Applicant were able to re-join his wife and re-establish his locksmith business, and Ms WF and her mother and son would be able to relocate from the one-bedroom public housing unit they currently occupied into more suitable accommodation. The additional household income Mr Hamana Hen could provide would also have a positive effect on his stepson, because Ms WF is not able to work, being the full-time carer of her mother, and is reliant on social welfare benefits.
The Tribunal is satisfied to make a determination as the Direction requires that exercising the discretion to grant the Applicant the visa is in the best interests of this minor child, and the weight of this primary consideration is significant.
Primary consideration: Expectations of the Australian Community (paragraph 8.5)
Paragraphs 8.5(1) and (2) of the Direction state:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
…
The Direction highlights specific categories of identified offences: 8.5(2)(a) – acts of family violence; 8.5(2)(c) – commission of serious crimes against, inter alia, women and children; 8.5(2)(d) – commission of crimes against government representatives due to the positions they hold, or in the performance of their duties.
The Australian community’s expectation is taken to be a ‘norm.’ The word ‘norm’ means of a ‘standard’ or ‘pattern or type.’ A superseded version of the Direction contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (‘FYBR’). The Court held that it is not for a decision-maker to make a personal assessment of what the ‘expectations’ of the Australian community may be. The expectations articulated in the Direction are ‘deemed.’ In other words, they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may endeavour to derive by another evaluative process.
Direction No. 99 imports the statement that the expectations of the Australian community are to be considered as a ‘norm’ and acknowledges the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are ‘deemed’ to weigh against an applicant, the relative weight will be affected by circumstances in the individual case. This was also the submission of both parties.
The recent decision of the High Court in Ismail and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 2, put this succinctly where the Court stated, at [54], in referring to a previous direction but which is still relevant to contents of this primary consideration in paragraph 8.5(4) of the current Direction:
Paragraph 8.4(4) is to be understood as directing the decision‑maker not to attempt to infer what the expectations of the Australian community would be "in the particular case" (that is, with the knowledge of the delegate about the applicant's personal circumstances), but to proceed on the basis that the views of the Australian Government set out in para 8.4(1)‑(3) are the relevant norm described as the expectations of the Australian community. That norm, as applicable by reference to the terms of para 8(1)‑(3), is then to be weighed with other relevant matters as required by paras 6 and 7 of Direction 90.
In this case, the Tribunal finds that the weight of the deemed expectations of the community would be against granting the visa. The main reason for this is that there has been a similarity in the Applicant’s family violence offending, and it relates to three women to whom he was, at the time of the offending, married. It would also be relevant that the Applicant provided misleading information on incoming passenger card on three occasions and failed to disclose past offending in his Australian visa application.
The Tribunal finds that this consideration weighs against exercising the discretion to grant the visa. The question of weight is necessarily linked to reading the Direction as a whole and the fact that the Australian Government has decided that family violence offending, and conduct, should have the status of being an important consideration in relating to whether or not a non-citizen is given a visa. The Tribunal finds that the weight is relatively strong against exercising the discretion in the Applicant’s favour.
Other consideration: Legal consequences of the decision (paragraph 9.1)
The Direction reminds decision-makers to be mindful that unlawful non-citizens are liable for removal from Australia as soon as reasonably practicable (see s 198 of the Act), noting that s 197C(1) of the Act provides that, for the purposes of s 198, it is irrelevant that Australia has non-refoulement obligations in respect of an unlawful non-citizen.
In this case, the parties have made no submissions that this other consideration is relevant. Mr Hamana Hen is a citizen of Israel and is presently residing there. Although he made reference to the current tenuous situation in the north of the country, where he resides, this does not amount to submissions relevant to this part of the Direction.
The Tribunal finds that this other consideration carries neutral weight.
Other consideration: Extent of impediments if removed (paragraph 9.2)
The parties both submitted this consideration is not relevant in the factual circumstances that the Applicant is outside the migration zone and is in his country of citizenship.
This other consideration therefore carries neutral weight.
Other consideration: Impact on victims (paragraph 9.3)
The Tribunal interprets this part of the Direction as meaning some evidence of the impact on a victim of a non-citizen’s offending on a member of the Australian community in a case where the victim has knowledge of the migration implications for the non-citizen.
The only member of the Australian community who may be categorised as a victim of the Applicant’s past offending is Ms WT. There was no evidence before the Tribunal of her views, nor any evidence of any contact between her and the Applicant since they separated.
This other consideration carries neutral weight.
Other consideration: Impact on Australian business interests (para 9.4)
The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 would significantly compromise the delivery of a major project or important service in Australia. As held by Rangiah J in Arachchi v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311, at [68]) decision-makers must consider any impact on Australia’s business interests be considered, not just business interests of a particular scale or importance.
Mr Brown accepted that the Applicant has in the past made some positive contribution to the Australian community. When he lived in Australia before he established his own business as a locksmith and employed sufficient staff to have, as he said in his evidence, a fleet of eight work vehicles. It may therefore be deduced that he was a small business employer. His evidence was that he tried to maintain the business after he returned to Israel but that did not succeed, and the business folded. He said he would look to re-establish his business if he were granted a visa to return to Australia.
The Tribunal finds, on this history, that this other consideration weighs very slightly in favour of granting the visa.
SUMMATION
In relation to the primary considerations, the Tribunal has found that the primary consideration relating to the protection of the Australian community weighs against granting the visa, but only moderately so, given the low-to moderate risk of offending against an intimate partner, which is trending lower, and the low risk of general offending.
The primary consideration relating to family violence has been found to weigh against granting the visa, but not determinatively. The primary consideration relating to the strength, nature and duration of the Applicant’s ties to Australia weighs strongly in favour of the Applicant, because of his Australian wife and stepson and their particular circumstances. The primary consideration relating to the best interests of minor children in Australia weighs significantly in favour of granting the visa. The primary consideration relating to the expectations of the Australian community weighs moderately against the Applicant.
In terms of the other considerations, those relating to the legal consequences of the decision, the impact on victims weigh neutrally; the consideration relating to impact on Australian business interests weighs very slightly in favour of granting the visa. The other consideration relating to the extent of impediments if removed is not relevant because the Applicant is offshore.
In weighing all the applicable considerations individually and cumulatively, the Tribunal finds, in this case, that the weight of the two primary considerations relating to the strength, nature and duration of ties and the best interests of the Applicant’s minor stepson are determinative. The Tribunal decides that, in spite of the Applicant failing the character test, the discretion should not be exercised to refuse the visa, and that the correct and preferable decision in this matter is for the visa to be granted. There is no evidence before me that the relationship between the Applicant and Ms WF is anything other than loving and mutually supportive, and there is evidence that this marriage has significantly improved the situation for the Applicant’s stepson, and to an extent his mother-in-law.
DECISION
Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the decision under review is set aside. In its place the Tribunal decides that the discretion in s 501(1) of the Act to refuse the Applicant’s visa should not be exercised.

I certify that the preceding 111 (one-hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

..........................[SGN]..............................................
Associate
Dated: 16 May 2024

Dates of hearing: 23 and 24 April 2024

Counsel for the Applicant:

Solicitors for the Applicant:

Mr Angel Aleksov

Carina Ford Immigration Lawyers

Counsel for the Respondent:

Solicitors for the Respondent:

Mr David Brown

Australian Government Solicitor

ANNEXURE
Schedule of exhibits
Volume of ‘G’ documents, lodged 6 March 2024  Exhibit R1
Volume of supplementary ‘SG’ documents, lodged 16 April 2024               Exhibit R2
Applicant’s tender bundle (TB), lodged 26 March 2024  Exhibit A1
Applicant’s further tender bundle (FTB), lodged 19 April 2024  Exhibit A2

[2024] AATA 1098

16 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Standing