Hassan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 113
•31 January 2022
Hassan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 113 (31 January 2022)
Division:GENERAL DIVISION
File Number: 2021/9009
Re:Jinan Hassan
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:31 January 2022
Place:Melbourne
The Tribunal sets aside the decision under review dated 10 November 2021 with a direction that the Visa Applicant passes the character test under section 501(6) of the Migration Act1958 (Cth).
.......................................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – application for partner visa – visa applicant is citizen of Lebanon – previous migration history – visa applicant refused visa on character grounds – basis of refusal was having regard to visa applicant’s past and present general conduct – sponsor seeks review of decision – consideration of two questions – first question is does visa applicant fail character test – consideration of general conduct of visa applicant – charges laid but complaints withdrawn – migration history – overall conduct of visa applicant – Annex A of ministerial direction – where Tribunal unable to reach positive decision that person is not of good character then the person passes character test – visa applicant passes character test – discretion therefore not enlivened to consider other parts of Direction – decision under review set aside with direction
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 33A, 40, 62
Migration Act 1958 (Cth), ss 14, 189, 198,.338, 347, 501
Cases
Briginshaw v Briginshaw (1938) 60 CLR 336
Erradi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; Re [2020] AATA 703
Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 83 ALD411
In Re Davis [1947] HCA 53; (1947) 75 CLR 409
Minister for Immigration and Immigration and Ethnic Affairs v Baker [1997] FCA 105; (1997) 73 FCR 187
Minister for Immigration and Multicultural and Indigenous Affairs v Godley [2005] FCAFC10
Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90
Yemshaw v Hounslow London Borough Council [2011] UKSC 3; 1 WLR 433Secondary Materials
Migration Act 1958 – direction under s 499 – Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of mandatory cancellation of a visa under section 501CA (made 8 March 2021/commenced 15 April 2021) – Annex A
REASONS FOR DECISION
Senior Member D. J. Morris
31 January 2022
BACKGROUND
The Visa Applicant, Mr Mahmoud Obeid, was refused a Partner (Provisional) (Class UF) visa by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’) on 10 November 2021, acting under section 501(1) of the Migration Act 1958 (Cth) (‘the Act’). The delegate was not satisfied that Mr Obeid passed the character test in section 501(6) of the Act, having regard to his ‘past and present general conduct’, under subsection 501(6)(b)(ii).
The Applicant’s wife, Ms Jinan Hassan (‘the Review Applicant’), an Australian citizen resident in Australia, brought an application for review of this decision to the Tribunal. Her entitlement to do so as the spouse of the Visa Applicant stems from sections 338(6)(c) and 347(2)(b) of the Act.
HEARING
A hearing was held on 13 January 2022, by video link owing to the current public health emergency, as allowed under section 33A of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’). The Review Applicant represented herself and gave evidence, and was cross-examined by Mr Christopher Orchard of Sparke Helmore Lawyers, representing the Respondent. The Visa Applicant gave evidence from Lebanon as allowed under section 40(4)(a) of the AAT Act, and was cross-examined. Other witnesses who gave evidence were two of the Review Applicant’s brothers, Mr Zackaria Hassan and Mr Abdullah Hassan, and Mr Omar Elkanter (by telephone), brother-in-law of the Review and Visa Applicants. The Tribunal was assisted by an interpreter in the Arabic language.
The Respondent tendered a volume of documents (‘GD’ documents) lodged on 7 December 2021 (Exhibit R1) and a supplementary volume of documents (‘SGD’ documents) lodged on 12 January 2022 (Exhibit R2).
The Review Applicant lodged the following documents, which were admitted into evidence:
(a) Statement of Jinan Hassan, dated 10 January 2021 (Exhibit A1);
(b) Psychological report, dated 23 July 2021 (Exhibit A2);
(c) Statement of Abdullah Hassan, lodged 14 December 2021 (Exhibit A3);
(d) Statement of Sarah Hassan, lodged 14 December 2021 (Exhibit A4);
(e) Statement of Omar Elkanter, dated 13 December 2021 (Exhibit A5);
(f) Letter of support from Tegan Ellison, lodged 14 December 2021 (Exhibit A6);
(g) Letter from The Royal Children’s Hospital, dated 15 November 2021 (Exhibit A7);
(h) Letter from Dr Malek Kallab, dated 13 December 2021 (Exhibit A8); and
(i)Certified extract from the Magistrates’ Court of Victoria, dated 5 August 2020 (Exhibit A9).
THE LEGISLATIVE FRAMEWORK
Section 501(1) of the Act states:
Refusal or cancellation of visa on character grounds
Decision of Minister or delegate – natural justice applies
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Section 501(6) of the Act provides, relevantly:
Character test
(6) For the purpose of this section, a person does not pass the character test if:
…
(c) having regard to either or both of the following:(i)The person’s past and present criminal conduct;
(ii)The person’s past and present general conduct;
the person is not of good character.
Mr Orchard in his opening submissions said that the Respondent’s contention is that Mr Obeid is not of good character because of his past and present general conduct and that, if the Tribunal finds he is not of good character, in addition the discretion should not be exercised to nonetheless grant him the visa.
Visa Applicant’s migration background
The Respondent provided the following factual background, which was not disputed by the Review Applicant and is set out in a file note of the Department of Home Affairs (‘the Department’) (GD, p 63). Mr Obeid is a citizen of the Lebanese Republic and was born in 1990. He first arrived in the Australian migration zone in September 2013 as an illegal maritime arrival. He was detained briefly on Christmas Island and then moved to Manus Island, Papua New Guinea, in immigration detention. In November 2014, Mr Obeid voluntarily returned to Lebanon.
Mr Obeid struck up a friendship with the Review Applicant, Ms Hassan, and she travelled to Lebanon to meet him. They became engaged. On a later visit, in September 2016 Mr Obeid married Ms Hassan, in Lebanon. In May 2017, Mr Obeid applied for a partner visa on the basis of his marriage to an Australian citizen, the refusal of which is the subject of this review.
On 24 November 2017, Mr Obeid arrived in Australia as the holder of a Visitor (Class FA) visa. On 19 February 2018, he departed Australia.
On 4 July 2019, Mr Obeid arrived in Australia as the holder of another Visitor (Class FA) visa which included a “no further stay” condition (condition 8503). That visitor visa expired on 4 October 2019. As Mr Obeid had not departed Australia on 5 October 2019, he became an illegal non-citizen by operation of law, under section 14 of the Act.
Officers of the Department located and detained Mr Obeid, as is their duty under section 189 of the Act. Mr Obeid signed a request to be voluntarily removed from Australia, under section 198(1) of the Act, and this occurred on 18 December 2019.
Mr Obeid’s application for a partner visa was refused by a delegate of the Minister as the delegate was not satisfied that special return criterion 5002 (return for compassionate reasons) was met. On 24 December 2020, a Member sitting in the Migration and Refugee Division of this Tribunal remitted the matter to the Department with a direction that special return criterion 5002 was met.
In July 2021, an officer of the Department wrote to Mr Obeid giving notice that consideration was being given to refusing his partner visa application because section 501(1) of the Act was not satisfied, on the basis of subsection 501(6)(c)(ii). On 10 November 2021, a delegate refused the visa under section 501(1) of the Act.
On 25 November 2021, the Review Applicant lodged an application with the Tribunal seeking review of that 10 November 2021 decision.
Submissions of the Visa Applicant – character test
In the papers before the Tribunal were submissions made by Mr Obeid’s former legal advisers, upon which Ms Hassan advised the Tribunal he continued to rely (GD, pp 78-89). In summary, the submissions were that Mr Obeid does not fail the character test in the Act because he does not “lack enduring moral quality” and is highly regarded in his chosen field of work – hairdressing – in both Lebanon and Australia. Testimonials were attached to that effect.
The submissions acknowledged Mr Obeid’s complex migration history and his overstay of his visitor visa; but said that the overstay was in the context of his wife suffering a miscarriage and subsequently being very unwell, and her then being involved in a serious car accident in which she was injured.
The submissions noted that although charges had been laid against Mr Obeid, they were still pending and could not be resolved until he appears in Court in Australia. The submissions further noted that the charges relate to two discrete incidents and that the complaints had been withdrawn in each case. The submissions went on to detail Ms Hassan’s medical and mental health history and made reference to medical matters relating to Mr Obeid’s daughter and one of his stepchildren.
Oral opening submission – the Visa and Review Applicants
In his oral opening submission at the hearing, Mr Obeid said that he would like to return to Australia to live with his wife and children. He said, “I was not aware of everything relating to the law of Australia”. He noted that his wife and some of the children have medical conditions and that he has also been seeing a psychologist regularly.
Mr Obeid said:
I have been away from my wife and children for two years. I haven’t been able to look after them. I was not aware of the law in Australia, that’s why I didn’t comply. I am longing for my wife and children, especially when I see other children with their parents. I haven’t seen my daughter for so long. I will abide by the laws, I promise. I miss my wife; I am so stressed.
Ms Hassan referred to the incident that happened in October 2019 with her former husband, Mr NM. She said she believed Mr Obeid was not a risk to the community. She said they had been together since 2016 and he was a loving husband and father. Ms Hassan referred to the fact that her brother was murdered in Melbourne in 2016 and, after that traumatic event, Mr Obeid was very supportive. She said that he has been awaiting approval of his visa for a long period, during which she had travelled to see him three or four times. She referred to the fact that she had two caesarean births and that he was very supportive. Ms Hassan said that Mr Obeid is a qualified hairdresser, “he doesn’t understand the law in Australia”. She said that Mr Obeid had booked his flight to return to Lebanon but overstayed when she had a miscarriage. Ms Hassan said that she had experienced many instances of family violence with her former husband, including various intervention and safety orders.
Oral evidence – the Visa Applicant, Mr Obeid
Mr Obeid said he came to Australia on the first occasion in 2013 by boat. He said he did not apply for a visa and was “fleeing Lebanon because of civil unrest”. He said he returned voluntarily in 2014.
Mr Obeid agreed he returned in November 2017 on a visitor visa to see his wife and returned to Lebanon. He agreed he returned to Australia again in July 2019 and overstayed his visa, but voluntarily departed in December 2019. Mr Obeid said: “There was a legitimate reason for overstaying the visa. My wife had a miscarriage, the baby died inside her and she was in hospital.”
Mr Orchard asked Mr Obeid about documents in the papers before the Tribunal, including summonsed documents from Victoria Police. The Tribunal noted that no charges had yet come to Court and reminded Mr Obeid that while he must answer questions if the Tribunal directs that he does, he is not required to answer a question if the answer might incriminate him (sections 62(3) and 62(4) of the AAT Act). Mr Obeid said he understood.
Mr Obeid was asked about an incident which occurred on 28 August 2019. The police report of the incident records that Mr Obeid was on the phone to Ms Hassan’s former husband, Mr NM, and that he said, “I want to cut you to pieces, tell me where you are”. Mr Obeid said he did not say that.
Mr Orchard took Mr Obeid to a report of police attending officers (GD, p 46) which said Mr Obeid approached Mr NM’s house and got out of his car, producing a large knife. Mr Obeid said: “The narrative is not correct. They approached us. They assaulted me and broke my leg and my phone. I followed them to see why they had done so. I took a metal rod, not a knife.”
Mr Orchard took Mr Obeid to a police interview record in which he is reported to have said “I want him [i.e., Mr NM] to be scared so he no call my wife again” and put to Mr Obeid that the reason he drove to Mr NM’s house was because he wanted Mr NM to be scared. Mr Obeid responded: “He said you can chase me up. I followed him. He had cameras at his home. No, I didn’t want him to be scared of me.”
When pressed on why he told the police that he went to Mr NM’s house to scare him, Mr Obeid said: “The police questioned me about the item. I told them I wanted him to be scared so he would not hit me any further. I wanted him not to injure me any further.”
Mr Orchard asked Mr Obeid why, if he had been hurt, did he not call the police. He replied: “The reason is because my phone was broken. I was abused in front of my wife and children. I was in fear and crying. Two groups had come to my house.”
Mr Obeid said he did not go to hospital and had treatment at home, and that police took photographs of his leg injury. Mr Orchard queried that he was saying he treated a broken leg at home. Mr Obeid said: “It was not broken, it was injured.”
Mr Orchard asked whether Mr Obeid sought to press charges against Mr NM or whether there are charges against him. He responded: “At the start, yes. The following day, we both withdrew the complaints against each other.”
Mr Obeid initially said that he and Mr NM were friends, and then amended this to say that they were “neutral friends”. He said Mr NM went to the police station and withdrew his complaint. When the Tribunal put to Mr Obeid that what he meant was that he and Mr NM were not enemies, he agreed with that terminology.
When it was put to Mr Obeid that he threatened Mr NM with a knife, he denied it. He said that the argument started because he had been at The Royal Children’s Hospital with his wife and Ms Hassan was meant to pick up her son, a child she had with Mr NM. She did not, which caused Mr NM to become upset because the son was left in the rain, and he blamed them.
Mr Obeid agreed that he had been charged but said he had not injured anybody. He agreed he was remorseful about the actions. When asked explicitly whether he was remorseful for threatening Mr NM, he replied: “I did not threaten him”. He said he did not have a knife, it was a “piece of metal.”
Mr Orchard asked him that, if all this was so, what is he remorseful for? Mr Obeid responded:
I am remorseful because I did not contact the police. He played it smartly and made me come around where he had cameras and recorded me. If I did something wrong, I am remorseful, however I didn’t cause any problem to anyone.
Mr Orchard then took Mr Obeid to the incident on 16 October 2019. He agreed that on the day he was preparing to go to the Department for a scheduled interview. The police report records that he threw a mobile phone at Ms Hassan, causing it to smash on the ground. Mr Obeid said:
The phone was on the table. My wife had just had a miscarriage. I tipped the table and the phone smashed. My wife was not hit. I had been talking to my mother on the phone [in Lebanon] and the building she lives in was on fire, and she had been taken to hospital.
Mr Orchard noted that the police report said that Mr Obeid used a knife to threaten Ms Hassan and said to her “I’m going to kill you, your Mum and Dad, your brother Adam, and your ex”. Mr Obeid responded: “No this is false. My wife can testify as to whether that is true or correct, I love her.”
Mr Orchard put to Mr Obeid that their two children were present at the time. Mr Obeid said: “No, the table was in the garage. I had gone there to smoke because I don’t in front of them. The kids were not present.”
Mr Orchard asked if Mr Obeid meant that he had gone to the garage to smoke cannabis. He replied: “I don’t smoke marijuana. A friend had left half a hash cigarette there. I was smoking Winfield Blue.”
Mr Orchard noted that the police report recorded that he had threatened to kill Ms Hassan and her parents and ex-husband, and if the police had got that information from Ms Hassan, was he suggesting she was lying? Mr Obeid responded:
We were about to go to the Department. We were in a happy and sweet state. She is not lying. There must be another error made by the police. This is not a true story. I have not done the alleged wrongdoing. My wife can be questioned about that. We can both testify to the alleged incident.
Mr Orchard noted that the police report recorded that Ms Hassan sent messages to her brother not to call her “as she was dying”. This led the brother to call the police, and the police to attend the house. He asked Mr Obeid, why would Ms Hassan’s brother have called the police if he did not think she was in danger? Mr Obeid replied: “Maybe he misunderstood the situation. If there was an imminent threat, she would have called the police herself.”
Mr Obeid agreed that his actions that day were wrong. Mr Orchard noted that a Family Violence Notice was issued in relation to the threats. Mr Obeid responded: “Yes. They served me and told me I wasn’t allowed to approach. I wasn’t aware why they issued it. They then transferred me from the police station to the detention centre.”
Mr Obeid agreed that two notices relating to family violence are in the police record as having been issued against him in Australia.
Mr Orchard then put to Mr Obeid whether he accepted, in a period of three or so months in Australia, he had been charged with thirteen offences. He responded:
These allegations were made by the police. I wasn’t taken into custody. When I was at the police station, they contacted Immigration and let me go, however before I left the police station, they received a communication and were told I had no valid visa. So, I had to be detained because of no valid visa. [On the previous occasion] NM then came to the police station and withdrew his complaint, and I was free to go on that occasion.
Mr Orchard put to Mr Obeid that his tenuous visa situation did not deter him from engaging in questionable conduct in the Australian community. He responded: “Yes. I had been in Australia for three and a half months and was not aware of my obligations and rights. I became aware of what I should do when in dispute with others.”
Mr Orchard pressed Mr Obeid on what it was that he did not understand about the laws in Australia. He responded: “I was referring to my conduct when they approached me and abused me physically. I should have called the police instead of following NM.”
Ms Hassan, in questions in reply, referred to the 16 October 2019 incident in the garage. She asked him whether at the time he was upset about the fire at his mother’s residence in Lebanon and about her miscarriage, and whether, on the day, she was upset and did not want him to go to the Department because she was fearful that he might be deported. Mr Obeid agreed that this was the case that day.
Oral evidence – the Review Applicant, Ms Hassan
Ms Hassan said that the date of her miscarriage was 11 October 2019. She said she spent the day in hospital and had previously been admitted to the emergency department of The Royal Women’s Hospital in late September 2019 with back pain. She said Mr Obeid had booked flights to leave, but he overstayed.
Ms Hassan was asked how she came to meet Mr Obeid. She said her brother-in-law knew him and introduced them. She went to Lebanon with her mother and one of her children and met Mr Obeid. Ms Hassan told the Tribunal about the murder of her brother and going through her divorce from Mr NM, explaining that her former marriage involved much family violence. She said Mr Obeid was very supportive and loving. Ms Hassan said she subsequently went back to Lebanon with her mother and married Mr Obeid. They stayed there together for four months and then she became pregnant with their son, B. She said that they applied for Mr Obeid to come to Australia and he came out in 2017. She said she had difficult pregnancies, with caesarean births each time, for B and their daughter, C.
In respect of the incident on 16 October 2019 which involved her, Ms Hassan said:
On this day his Mum was in hospital. We’d lost a baby. I didn’t want him to go to the Department. I thought they were going to take him. Mahmoud was very upset. He had too much pressure. I was upset. I sent a message to my brother; I was out of control. My brother called the police – he didn’t know what was going on. I don’t know what I was saying. I went to hospital. Mahmoud was arrested and taken by the police. I was asking myself, ‘what have I done, what have I told the police?’ It wasn’t the right time to take a statement at the hospital. I called Mahmoud and said sorry and I don’t know what I have done. My Mum really loved Mahmoud. I went and told the police I wanted to withdraw any complaint. The police told me no FVO had been granted then. They withdrew the FVO when it went to Court. He had Court on 13 March. The judge was very kind but told me he couldn’t sort it out until Mahmoud came back. I just wanted my brother to come and calm Mahmoud down. I have been rejected four times to travel overseas. Mahmoud hurt himself at work but they wouldn’t let me go back to Lebanon.
In response to direct questions from the Tribunal, Ms Hassan said that it was her brother Adam to whom she sent a message on the day of the incident. She agreed he had not provided a statement in these proceedings and said that Adam was upset about a bond her father had previously provided in relation to the Visa Applicant.
Mr Orchard put to Ms Hassan that she had said she did not know what happened on the day, and also said that the police report in evidence was wrong. She responded:
It was incorrect. The threat to kill was incorrect. I don’t know what I told police. I had flashbacks about previous family violence [with her former husband] and told Mahmoud I wasn’t in my right mind when speaking. He never had that intention. When the incident happened, I was confused and crying. I had just had a miscarriage and was on medication. I was frustrated. The words that the police stated were incorrect.
In answer to a direct question from the Tribunal, Ms Hassan conceded that she might have said the things the police recorded. She said when she spoke to Mr Obeid, she apologised for saying he had made threats and “went straight to the police and withdrew.”
Mr Orchard quoted some of the statements she made to the police and put to Ms Hassan that they were recorded contemporaneously and therefore were more reliable. She responded: “Yes. More accurate, but I don’t remember saying that. He’d never threatened me.”
Ms Hassan said when she attended the police station, she told the officer that they should not have made her sign a statement when she was at the hospital. She said she did not keep a copy of the statement. Ms Hassan said the police officer who helped her prepare her statement withdrawing the complaint told her she could explain what happened when the matter goes to Court.
Ms Hassan said: “I am not saying the police are lying, I am saying this is not correct.”
Ms Hassan told the Tribunal she shares custody of her three older children with Mr NM, who has the children for weekends. She told the Tribunal Mr NM has a new partner but “he just hates me. They put a safety order against him.”
Ms Hassan said that one child, Z, has been diagnosed with a learning and behavioural disorder. He has been examined every two years and they were awaiting a letter from his school, after which they will apply for funding through the National Disability Insurance Scheme for some more support.
Oral evidence – Mr Abdullah Hassan
Mr Abdullah Hassan, a brother of the Review Applicant, gave evidence. He told the Tribunal: “My sister has remarried but has issues with her ex. She married the first time very young; she was 13 and is the mother of three kids with her ex-husband. Mr NM is an insecure and toxic person.”
The Tribunal asked Mr Hassan whether he thought Mr Obeid was a positive influence in his sister’s life. He said: “We are all born to sin. He has two children here. There is coronavirus in Lebanon. We all want him to come back. We want our sister to have a nice, healthy relationship.”
When asked what he knew about the August 2019 incident involving Mr Obeid and Mr NM, Mr Hassan said: “I don’t know the full extent. I know the majority has been caused by the ex-partner. Any man would be jealous.”
Mr Hassan was asked about a remark in his statement (Exhibit A3) where he said Mr Obeid was remorseful. He responded: “I wasn’t there on the day. I know he is remorseful. We don’t like that in our religion. I know he is hard-working and has good traits. It would be hard for her go to go Lebanon”. Mr Hassan said he only “vaguely” knew what had gone on.
Mr Hassan said: “My sister has three kids with her ex. Z has ADHD. He is a bit wild. The ex got married. He’s still in love with my sister. He triggers Mahmoud. That’s pretty much all I know. NM is very controlling; it is all about jealousy.”
Mr Hassan was asked about a sentence in his statement where he said Mr Obeid was young and immature and it was difficult for him to understand the laws of Australia. Mr Orchard pointed out that Mr Obeid was 29 at the age of the incidents and should have known better. He responded: “I agree he was an adult. But a lot of people have not been in that situation before, with five kids and one with ADHD.”
Oral evidence – Mr Zackaria Hassan
Mr Zackaria Hassan, another brother of the Review Applicant, gave evidence. He has provided a statement to the Department (GD, p 164). In respect of the August 2019 incident, Mr Hassan was asked what he knew. He said:
I know there were phone calls to do with picking up the youngest son. He is hard to handle, has ADHD. There are always going to be altercations between ex-partners. Mahmoud did some acts he regrets. I don’t see him like that at all. He is quite social. I used to go to his shop where he cut hair.
Mr Zackaria Hassan agreed that he was not there on the day of the August 2019 incident. In regard to the October 2019 incident, Mr Hassan said: “It was a dispute between my sister and Mahmoud. Every relationship has ups and downs and serious debates. They had just had a miscarriage and it was traumatic.”
In answer to direct questions from the Tribunal, Mr Hassan said he had not spoken to his brother Adam about the October 2019 incident. After being reminded that Adam was the one who called the police, he said: “In the heat of the moment. Jinan called Adam. She needed someone to cool things down. Adam thought the police were there to protect and defuse the situation.”
Mr Hassan said he had since spoken to Mr Obeid about the incident and said: “He is an honest and up-front person who has learnt.”
Oral evidence – Mr Omar Elkanter
Mr Elkanter is the brother-in-law of the Review Applicant and provided a statement in connexion with these proceedings (Exhibit A5).
Mr Elkanter was asked about a statement he made in December 2021 in which he states he was “aware of the crime”, and what did he mean. Mr Elkanter said: “He was angry that day. He had a fight with another man and followed him to his home with a gardening tool.”
Mr Elkanter said he was unaware of any other charges laid against Mr Obeid. He said: “No. He is a good person. He looks after his children. He should be with his kids here. It is bad for him to stay there [in Lebanon].”
CLOSING STATEMENT – THE REVIEW APPLICANT
Ms Hassan said:
I hope you can understand, having seen him face to face, to grant him a visa. I have been struggling. I need my partner. I love him so much. The children are struggling. His children cry daily on the phone. I have no support. We are doing it tough and I can’t take them to Lebanon. I want him to come back to Australia and open our business. B is growing up without a father, and he is about to start school. C, as well.
When he comes to Australia, I am going to go to Court and explain the charges. We just want to live a happy life. We will go to Drummond Street for counselling. My brothers have been supportive but I can’t go overseas. We’ve had a difficult time in our lives and I need Mahmoud to come and support me.
CLOSING STATEMENT – THE RESPONDENT
Mr Orchard submitted that the two questions before the Tribunal are, first, does Mr Obeid pass the character test. If the answer is ‘no’, then the second question is should the discretion be exercised to refuse the visa, applying the considerations set out in Direction No. 90 made by the Minister.
Mr Orchard noted that Mr Obeid arrived in Australia in 2013 as an illegal maritime arrival and was voluntarily removed. His first legal arrival in Australia was in November 2017 and he was in Australia for two months before leaving. The next time he visited he overstayed his visitor visa. Mr Orchard submitted that Mr Obeid has spent around five months lawfully in Australia.
Mr Orchard submitted that the Visa Applicant has been charged with 13 offences, including threat to kill, drug possession and assault. He said that Mr Obeid’s behaviour is incompatible with displaying a respect for Australia’s laws.
He said the Respondent’s submission is that Mr Obeid fails the character test and, further, that the discretion should not be exercised to grant him the visa.
Mr Orchard instanced Mr Obeid’s first breach as an illegal maritime arrival and submitted that this was representative of dishonest conduct, in the context where he was not arriving having fled a country because of threats of harm. Mr Orchard conceded the circumstances surrounding the second breach, the overstay on the visitor visa, are different, but submitted that they are “less understandable in the context of the first conduct.”
In terms of Mr Obeid’s conduct towards the Review Applicant’s ex-husband and the Review Applicant herself, the Respondent submitted that the police report in August 2019 reflected what happened and is a contemporaneous account. The Respondent said that the incidents occurred and “whether he is convicted is by the bye.”
Mr Orchard said, in terms of the considerations in Direction No. 90, considering the nature and seriousness of Mr Obeid’s conduct, the Respondent submits that there was “violence”, citing Re: Erradi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 703 (‘Erradi’).
Mr Orchard said the conduct in question relates to the Visa Applicant threatening to “chop up” Mr NM and the threats made to Ms Hassan. He submitted that the threats to kill were in fact made.
Mr Orchard submitted that acts of family violence must be considered, and in the context of the offending, the conduct escalated quickly. He said that these were not incidents of “passing blow ups”, that a knife was used and the threats were not idle.
Mr Orchard submitted that the cannabis possession charge is not a particularly serious allegation, but it should be viewed in the context that Mr Obeid knew he was in a tenuous migration situation. He noted that all the events occurred in a short space of time of some five months.
In terms of assessing risk, Mr Orchard noted that Family Violence Orders were issued and the obvious question would be “what next?”
In terms of whether there has been family violence, the Respondent submitted that there was information before the Tribunal that Mr Obeid has been involved in family violence. He said Mr Obeid has made several statements of remorse, but it is not clear what he is remorseful for.
Mr Orchard noted that it took some time in questioning to get to what the Review Applicant was saying she told the police, and he submitted that the Minister’s view was that the Tribunal should prefer the police report.
In respect of the best interests of minor children affected by the decision, Mr Orchard submitted that the Respondent accepts it is in the best interest of affected minor children for Mr Obeid to come to Australia, and that this consideration weighs heavily but not determinatively. In respect of the child Z, the Respondent accepted that he has learning difficulties and it would be in his best interests for Mr Obeid to be here in Australia.
Mr Orchard submitted that Ms Hassan fulfils the parental role entirely at present. He said it was not true to say that Ms Hassan has no supportive family network, because her brothers, two of whom gave evidence, are supportive.
In terms of other considerations, the Respondent submitted in respect of the consideration relating to impact on victims, that this can weigh in either direction. Mr Orchard noted that Ms Hassan said she would be severely affected if Mr Obeid was not allowed a visa, but any finding needs to be balanced on whether the Visa Applicant continues or repeats the conduct.
In terms of links to the Australian community, the Respondent submitted that Mr Obeid has contributed little, but accepted that he had done some work as a hairdresser.
In terms of the evidence as a whole, Mr Orchard submitted that Mr Obeid denies what he was charged with and this weighs heavily against the exercise of the discretion; the best interests of minor children weigh heavily in favour of granting the visa; the impact on victims is neutral; the links to Australia are tenuous, and he submitted that the decision under review should be affirmed.
Review Applicant in reply
Ms Hassan noted that Mr Obeid has not been convicted before a Court. She said that while it was true her brothers were supportive, they all work and can only support her when they have the time.
Ms Hassan noted that Mr Obeid’s police check from Lebanon shows no record of offending and that her husband has never been convicted or sentenced for anything.
Ms Hassan advised the Tribunal that she had a number of nieces and nephews. She said her sister Sarah has three girls and one boy. Her brother Adam has two girls. Her sister Sahwa has a boy and a girl. She has three step siblings who also have children: Bilal has two girls and a boy; Tanya has a son; and Donya has three girls. Following the hearing, Ms Hassan contacted the Tribunal and advised that her late brother Helal also has two children, both sons. All these children are under the age of 18, except for the older son of her late brother Helal, who is aged 18.
CONSIDERATION
Good character and the character test
The ground on which Mr Obeid’s visa was refused was that the Minister’s delegate decided, that having regard to his past and present general conduct, he is not of good character (section 501(6)(c)(ii) of the Act). Section 499 requires decision-makers, including the Tribunal, to have regard to any directions the Minister has issued under that section. On 8 March 2021, the Minister issued Direction No. 90 (‘the Direction’) which superseded previous directions and relates, relevantly in Mr Obeid’s case, to cases where a visa is refused to a person under section 501 of the Act.
Annex A – Application of the character test (‘Annex A’), of the Direction, quotes an extract from the judgment of Justice Lee in Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 83 ALD 411 (‘Godley I’). His Honour said, at [51-56]:
The words “of good character” mean enduring moral qualities reflected in soundness and reliability in moral judgement in the performance of day-to-day activities and in dealing with fellow citizens. It is not simply a matter of repute, fame or standing in the community but of continuing performance according to moral principle. A person of ill repute by reason of past criminal conduct may nonetheless, on objective examination at a later stage in life, be shown to be a person reformed and now of good character, see Irving v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-2; 139 ALR 84 at 94.
A finding that a person is "not of good character" requires the Minister to make a supervening determination after having regard to the matters set out in s 501(6)(c). The consideration of past and present criminal conduct and/or past and present general conduct provide indicia as to the presence or absence of good character but do not in themselves answer the question. The Minister must look at the totality of the circumstances and determine whether the person before him is distinguishable from others as a person not of good character, a question not to be confused with characterisation by conduct alone. (See: Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 197).
The distinction between "criminal" and "general" conduct as indicia of absence of good character may suggest that the word "criminal" is likely to carry the common meaning of the more serious offences than misdemeanours that involve lesser faults and omissions. (See: 4 Bl. Com. 5; Shorter Oxford English Dictionary at 456 – "crime", "criminal").
Context, however, is important and may provide a broader meaning for such a term in appropriate circumstances having regard to the purpose to be served. (See: Marcel Beller Ltd v Hayden [1978] 3 All ER 111).
For a finding to be made under s 501(6)(c) that a person is not of good character it is necessary that the nature of the conduct said to be criminal, be examined and assessed as to its degree of moral culpability or turpitude. Furthermore, there must be examination of past and present criminal conduct sufficient to establish that a person at the time of decision is not then of good character. The point at which recent criminal conduct, (as the term "present criminal conduct" is to be understood), becomes "past criminal conduct" must be a matter of judgment. If there is no recent criminal conduct that circumstances will point to the need for the Minister to give due weight to that fact before concluding that a visa applicant is a person not of good character. (See: Baker at 194-195).
Before past and present general conduct may be taken to reveal indicia that a visa applicant is not of good character continuing conduct must be demonstrated that shows a lack of enduring moral quality. Although in some circumstances isolated elements of conduct may be significant and display lack of moral worth they will be rare, and as with consideration of criminal conduct there must be due regard given to recent good conduct.
The Minister appealed against the decision of the primary judge in Godley I. The Full Court, in Minister for Immigration and Multicultural and Indigenous Affairs v Godley [2005] FCAFC 10 (Madgwick, Lander and Crennan JJ) (‘Godley II’) dismissed the appeal and held that Lee J’s consideration of the character test was [at 34] “correct and constitutes a valuable guide for decision makers”. The Full Court also affirmed the finding of the judge at first instance that if the Minister (or the decision-maker, standing in the Minister’s shoes) is unsure whether a person is or is not of good character, and is unable to reach a positive decision that the person is not of good character and declines to do so, then the person will have passed the character test.
In respect of Mr Obeid’s past and present general conduct, the Tribunal considers it would be convenient to categorise matters which have come forward in evidence into four headings: immigration history; events of 28 August 2019; events of 16 October 2019; and other general conduct. Because of the construction of section 501(6)(c)(ii) of the Act, the Tribunal must have regard to the evidence before it of Mr Obeid’s past and present general conduct, that is, his overall or ‘universal’ conduct, and not only the conduct impugned in the decision record supporting the refusal decision.
Immigration history
As set out above, Mr Obeid first arrived in the migration zone on 26 September 2013 at the Territory of Christmas Island. He had no valid travel documents and was placed in immigration detention. Five days later he was transferred to an Australian-operated detention centre in Papua New Guinea. In November 2014, he accepted what was described by the Department (GD, p 63) as a “voluntary return package” and he was repatriated to Lebanon.
The next time he entered the Australian migration zone was unremarkable. He was granted a visitor visa and arrived in November 2017 and departed in February 2018 within the terms of the visa.
Mr Obeid was later granted a fresh visitor visa with a three-month duration and a “no further stay” condition. He arrived in Australia on this visa on 4 July 2019 and, by its terms, was required to depart on or before 5 October 2019. He did not. The evidence before the Tribunal from Ms Hassan was that he had booked flights and was preparing to depart but did not do so because of the miscarriage she had. Her former legal representatives also say (GD, p 81) that reasons Mr Obeid did not depart “include[d]” not only the miscarriage but also a serious car accident in which Ms Hassan was involved and was injured.
Dr Paul Grech, clinical psychologist, who was treating Ms Hassan, has provided a number of reports which are in evidence. At GD p 97 and p 105 he refers to the miscarriage occurring on 11 October 2019. He further reports that the car accident involving Ms Hassan took place on 23 October 2019. The Tribunal accepts that Ms Hassan did suffer a miscarriage, and that this was undoubtedly distressing and traumatic for both her and Mr Obeid, and that it affected the wider family. The Tribunal also accepts, on the basis of a Transport Accident Commission document in evidence, that Ms Hassan was involved in a car accident; and it accepts, on the evidence of Dr Grech’s report, that it occurred on 23 October 2019.
In the first case, the miscarriage therefore took place several days after Mr Obeid’s visa expired and he knew he had become, by not having a valid visa, an illegal non-citizen by operation of law. Sometimes where a visa expires the visa-holder makes a case that he or she was unaware of the fact or the consequences. That is not the case here. Mr Obeid had greater knowledge than another non-citizen in Australia would have, because he had been through the process before when he was detained on Christmas and then Manus islands. He knew that a non-citizen in Australia must be in possession of a valid visa. He has also showed that he could comply when he entered and departed Australia in compliance with the conditions of the previous visitor visa he held in 2017-18. There is a reference in the submissions by the former legal representatives of Mr Obeid to him attempting to apply for a bridging visa on 5 October 2019 (GD, p 79), but that is not mentioned in the Respondent’s Statement of Facts, Issues and Contentions, and there were no other references to it in the papers.
In the second case, on the evidence, the car accident occurred on 23 October 2019, which is seven days after Mr Obeid had been located by Department officials and taken into immigration detention. The Tribunal accepts that, like the miscarriage, this would have added to the emotional pressure Mr Obeid was under, and Ms Hassan was under. But it cannot accept that it was a factor in him overstaying, because when the accident occurred he was already detained by the Department.
The evidence of Ms Hassan and Mr Obeid was that, on 16 October 2019, the day the incidents occurred which led to charges to be further discussed below, Mr Obeid was preparing to go to the Department, as it was described in a police summary, “because there are issues with his visa” (SGD, p 10). It is submitted that he had a scheduled appointment with the Department at 1.30 pm that day (GD, p 73).
Even though this evidence supports the fact that Mr Obeid was trying to regularise his immigration status, perhaps by citing compassionate grounds owing to his wife’s very recent miscarriage, it is somewhat troubling to the Tribunal that Mr Obeid had overstayed when he knew he had a condition on his visa explicitly warning him not to, and he knew of the date of its expiry.
By itself, Mr Obeid’s illegal maritime arrival would not be sufficient to found a conclusion that he is not of good character. It is however an act that is contrary to the law of Australia and may be a factor that is taken into account in terms of general conduct.
However, added to that is Mr Obeid’s overstay in 2019 when his visa had expired. He knew the conditions of the visitor visa. It cannot be said this was an oversight, or something of which he was unaware, or that he was simply careless.
I accept that Ms Hassan’s tragic miscarriage is a relevant factor in the immediate aftermath of the expiry of the visa, and it may be fairly argued it had stopped him promptly going to the Department when that occurred. However, it does not explain why he did not seek an extension earlier, or at least make inquiries on the grounds that his wife was having a difficult pregnancy (noting she had already been admitted to hospital with back pain). The reference to Mr Obeid’s attempt to apply for a bridging visa on the day after his visitor visa expired is singular and not corroborated. That is not to say it may not be true; just that there is no further evidence of this attempt, and he did not mention it in his oral evidence.
Events of 28 August 2019
How events unfolded on 28 August 2019 is not clear. There are differing statements before the Tribunal. The police report (SGD, p 20) dated that day states:
THE RESP [I.E. MR OBEID] HAS PRESENTED AT THE APS [I.E. THE WIFE OF MS HASSAN’S EX-HUSBAND] RESIDENTIAL ADDRESS AND THREATENED TO KILL THE APS HUSBAND WITH THE APS STEP CHILD PRESENT. THE RESP GOT OUT OF HIS CAR WHILE THE AP WAS IN THE DRIVEWAY. THE RESP WAS HOLDING KNIFE AT THE TIME HE GOT OF THE CAR AND APPROACHED THE AP HUSBAND AND STATED “I WANT TO CUT YOU INTO PIECES”. THE AP YELLED AT THE RESP AND STATED “DON’T, I HAVE MANY CAMERAS”. THE RESP LEFT THE ADDRESS.
The police attended the address after Mr Obeid had departed. The above report should be read in that light. While contemporaneous, it is significantly incomplete. Mr NM’s wife, who appears to have provided the initial information to the attending officers, was not present when Mr Obeid arrived and confronted her husband. In a separate police Statement of alleged facts (GD, p 46) she says she was inside the house and came out on hearing an argument. The police brief also reveals that Mr NM took up a garden stake and struck Mr Obeid with it. He struck Mr Obeid with the garden stake again, on a second occasion, during the argument.
At the foot of the police brief (GD, p 46) is part of a record of interview between police and Mr Obeid in which Mr Obeid denies having a knife and the police officer notes he said he had a “small garden shovel”. Unfortunately, the police record is incomplete and the remainder of the interview was not before the delegate and not before the Tribunal. Mr Elkanter in his evidence said his understanding was that Mr Obeid had gone around to Mr NM’s house that day with a garden tool. Mr Obeid in his evidence to the Tribunal said he carried a small “metal rod”. He adamantly denied he had a knife.
Mr Elkanter’s evidence was second-hand, because he was not present, but it is clearly what Mr Obeid told him and it is also consistent with what Mr Obeid told the police when he was interviewed on the day.
In a statement to the Department, the original and a translation of which was before the Tribunal (GD, p 41), Mr Obeid wrote:
On 24/12/2019 [sic], we were about to come to my house, my wife, my children and me. I saw my spouse’s divorcé. He had two cars, one black and another silver. He along with other men bashed me before my wife and the children and broke my hand and my telephone device. I took photos for the police. I followed them to the house to see why he hit me. I had a piece of tools for planting my garden. I went to his home. I neither hit him nor I touched him. He had a camera and took photos and later the police came. I went to the police station, we reconciled and we became friends.
After attending Mr NM’s house that day, the police telephoned Mr Obeid and asked him to come to the local police station. He did so, was interviewed and was charged and bailed. The charges laid against him are set out in the National Police Certificate dated 9 April 2021 (GD, p 36) as follows: Make threat to kill; Threat to inflict serious injury; Reckless conduct endangering serious injury; Possess dangerous article in a public place. An Intervention Order (IVO) was issued.
The National Police Certificate notes that these charges have not been determined by a Court and cannot be regarded as a finding of guilt against a person.
On 1 September 2019, Mr NM attended the local police station and made a statement (GD, p 56). It relevantly says:
On the 28/08/2019 I reported to police Threat to Kill. I have since given this matter consideration and decided that I wish to withdraw my complaint and have the police take no further action in this matter. The decision to withdraw this complaint was reached on my own initiative. The reason I wish to withdraw this complaint is [I] do not want Mahmud [sic] OBEID charged for the offence.
The Minister’s delegate acknowledged that these charges are unlikely to be determined by a Court. Although, even with a withdrawn complaint, the police may still pursue a matter, I am inclined to agree, because no evidence is likely to be offered.
Taking careful account of Mr Obeid’s evidence at the hearing and apparent statement in his interview with the police on the day, I am not satisfied on this conflicted and contested evidence that he went to Mr NM’s house with a knife. However, while there may have been provocation, he admitted going around to the house of his wife’s ex-husband and having an altercation with Mr NM. Mr Obeid also admitted taking with him an implement – whether a garden tool or small rod is not important – either for protection or some other purpose. I note that the evidence the police gathered includes an allegation that Mr NM struck Mr Obeid twice with a garden stake, and this was the only physical contact between the two. I am inclined to accept, on the whole of the evidence, that there was a heated exchange between the two men, and inflammatory language was used. But on the evidence before me, and noting the withdrawal of the complaint, I make no further findings.
Events of 16 October 2019
The events in October 2019 are equally problematic to distil, if not more so. The police report dated that day relevantly states (SGD, p 10):
THE PARTIES HAD PLANNED FOR THE AFM [I.E. MS HASSAN] TO DRIVE THE RESP TO IMMIGRATION BECAUSE THERE ARE ISSUES WITH HIS VISA. AS THE PARTIES WERE ABOUT TO LEAVE THE ADDRESS THE AFM REFUSED TO DRIVE THE RESP TO IMMIGRATION AND AS A RESULT THE RESP HAS BECOME ANGRY. AN ARGUMENT HAS OCCURRED WHICH HAS LED TO THE RESP TO STRIKE THE AFM ON THE HEAD AND THROW HIS DAUGHTER’S PHONE AT THE AFM’S FOOT, CAUSING IT TO SMASH. THE RESP HAS ALSO SMASHED A COFFEE TABLE THE RESP HAS THEN USED A KNIFE TO THREATEN THE AFM STATING “I AM GOING TO STEP ON YOUR FACE, AND I AM GOING TO KILL YOU, YOUR MUM AND DAD, YOUR BROTHER ADAM AND YOUR EX-HUSBAND.”
AS A RESULT OF THE THIS THE AFM HAS SENT MESSAGES TO HER BROTHER STATING THAT THE RESP WAS TRYING TO KILL HER AND NOT TO CALL HER AS SHE WAS DYING. THIS HAS LED TO THE AFM’S BROTHER TO CALL POLICE.
The police attended. They arrested Mr Obeid and took him to the police station. He was charged and bailed. A Family Safety Notice was issued. Although bailed, Mr Obeid was immediately taken into immigration detention. It appears that a Family Violence Safety Notice was proposed, but that was withdrawn at Court on 13 March 2020 (SGD, p 14 and Exhibit A9)
Mr Obeid admitted in his evidence that he did up-end a coffee table, in anger, and a mobile phone that was on it fell off and smashed. In her oral evidence, Ms Hassan denied on several occasions that he had made the threat that the police recorded. She said that she had said this when interviewed by the police after she had been taken to hospital by ambulance and that she was not in “her right mind” at the time. After significant questioning, including directly by the Tribunal, Ms Hassan said that she was not saying that the police report was incorrect, but that Mr Obeid did not make the threats.
The difficulty the Tribunal is faced with, here, is why the police would have recorded such specific threats after they interviewed Ms Hassan. Why, too, would she have sent a text message to her brother which alarmed him sufficiently to call the police and ask them to attend the residence? Ms Hassan said that her brother, Adam, did not himself go to the house, but there could have been many reasons for that, especially if he was working some distance away. It is objectively clear that Ms Hassan was in sufficient distress, when the police arrived, that they called an ambulance which took her to hospital. They also made an on-the-spot assessment to arrest Mr Obeid and take him to the police station.
It may be that Mr Obeid did not make the threats the police have recorded, but I am satisfied that Ms Hassan did tell the police that he had made those threats. The police reports refer to damage to the walls of the house said to have been caused by Mr Obeid. Ms Hassan in her evidence said that this damage was in fact historical damage caused by Mr NM (in relation to whom the police reports record a history of Family Violence Intervention Orders). I am unable to find that Mr Obeid was responsible for this damage, given the conflicting evidence.
Mr Obeid’s evidence, echoed by his and Ms Hassan’s written statements, was that he was distressed that day because he had been on the telephone to his mother who had told him her accommodation in Lebanon had been damaged by fire and she was in hospital. There is no corroborative evidence of this, but I accept this backdrop would have emotionally affected Mr Obeid. However, it is no excuse for violent and ‘scary’ conduct towards his wife.
I am satisfied that Ms Hassan withdrew the complaint three days later. In the papers was a statement she made at the local police station on 19 October 2019:
On Wednesday 16th of October 2019 I made a statement to Constable [surname redacted] in relation to a family violence incident involving my husband, Mahmoud OBEID. I have since given this matter consideration and decided that I wish to withdraw my complaint and have police take no further action in relation to this matter. The decision to withdraw the complaint was reached on my own initiative. The reason I wish to withdraw this complaint is I have resolved the issue privately and no longer wish to have police involvement.
It is regrettable that the statement Ms Hassan said she gave to police when at the hospital was not in the summonsed material before the Tribunal. She also told the Tribunal she did not have a copy. I note that there is evidence that Ms Hassan and the children regularly visited Mr Obeid in immigration detention until he was voluntarily removed from Australia at his own request under section 198(1) of the Act (GD, p 61) in December of that year.
The Minister’s delegate was of the opinion that it was unlikely that this matter would be dealt with by the Courts, given that Ms Hassan withdrew her complaint. I agree. Ms Hassan said that she attended the Court and told the Magistrate that she had withdrawn the complaint, but the Magistrate informed her that he could not dispose of the matter in the absence of Mr Obeid. There was no corroborating evidence before the Tribunal of this, but I am inclined to believe Ms Hassan in this regard. I note that the Magistrate refused substituted service of an intervention order against Mr Obeid in Lebanon, and that order was withdrawn.
Noting that the complaint was withdrawn and the evidence given by Mr Obeid and Ms Hassan, I find that there was an incident that day which involved physical violence in the sense of Mr Obeid ‘smashing’ or ‘upending’ a table and smashing a mobile telephone on the floor. I find that Mr Obeid did say harsh words to Ms Hassan. Whether they were the words she relayed to police may or may not be the case, but they were sufficiently inflaming, or perhaps menacing, for her to send a text message to her brother. Mr Obeid said in his evidence that if Ms Hassan was indeed in real fear, she could have called the police herself. I do not accept that, given their joint evidence was that she did not want him to go to the Department for his scheduled appointment because she feared it might lead to his deportation.
Mr Orchard drew my attention to the remarks of Senior Member Furnell in Erradi where the Tribunal expressed the view, at [46]-[47], that physical contact is not necessary for conduct to constitute family violence. With respect, I completely agree with the learned Senior Member. That view is also consistent with the approach taken by O’Callaghan J (Katzmann and Stewart JJ agreeing) in Vu v Minister for Immigration, Citizenship, MigrantServices and Multicultural Affairs [2020] FCAFC 90, citing with approval the judgment of Lady Hale SCJ (Lord Hope DPSC and Lord Walker SCJ agreeing, Lords Rodger and Brown SCJJ separately concurring) in Yemshaw v Hounslow London Borough Council [2011] UKSC 3; 1 WLR 533. Mr Obeid’s admission that he made Ms Hassan scared, and that he damaged furniture and “smashed” a phone, in this domestic context is enough.
Other general conduct
Before the Tribunal (GD, p 39) is a certificate from the Directorate-General of Security Forces in Lebanon and a Statement of police record relating to Mr Obeid recording “No Condemnation”, i.e., no matters recorded against him. There is no other content of the National Police Certificate issued in Australia of charges laid or convictions or findings of guilt against him.
A director of the Multicultural Youth Centre near where Ms Hassan and Mr Obeid lived wrote a letter dated 2 August 2021 (GD, p 161) recording that Mr Obeid regularly attended the centre and provided voluntary assistance in its activities during the time he was in Australia from July to September 2019; and that he was respected and well-liked at the Centre.
Before the Tribunal was a certificate of Mr Obeid’s qualifications as a Master Barber (GD, p 166) dated 12 July 2010, and evidence was given that he worked briefly as a hairdresser in Melbourne. There were other testimonials in the documents before the Tribunal which regarded Mr Obeid positively. The oral testimony of Ms Hassan’s two brothers both reflected that they regarded him as a good husband to their sister, a good father to his and Ms Hassan’s two young children, and a good stepfather to her other three older children with Mr NM.
CHARACTER TEST – FINDING
The Tribunal must make a finding as to whether Mr Obeid’s past and present general conduct is such that he does not satisfy the character test. Justice Lee reminded decision-makers in GodleyI that past and present general conduct (in this case) provide some indicia of whether someone is of good character or not, but the totality of the circumstances must also be examined. In Minister for Immigration and Immigration and Ethnic Affairs vBaker [1997] FCA 105; (1997) 73 FCR 187 (‘Baker’) the Full Bench of the Federal Court (Burchett, Branson and Tamberlin JJ) considered the distinction between criminal conduct (which need not be only conduct that led to convictions) and general conduct. Their Honours said:
That leaves for consideration just what is meant by "general conduct" when, in the same context, this expression is used to distinguish conduct that is not "criminal conduct". In a comprehensive division of conduct into two categories that represent fundamental considerations in the making of a determination about character, the category that most naturally forms a dichotomy with criminal conduct, under the heading of "general conduct", is conduct in general. The root meaning conveyed by the adjective "general", as is made clear by The New Shorter Oxford English Dictionary (1993), is the idea of universality. In s 501(2), it expresses a contrast with the particularity inherent in the reference to "criminal conduct". We do not think there is any warrant for extracting, from the broad word "general", a meaning that would eliminate conduct other than conduct so frequently indulged in as to be described as prevalent or usual. Just as a person's criminal conduct on a few occasions may be very revealing of character, so also some instances of general conduct, as we understand the term, displayed but once or twice, may lay character bare very tellingly.
The Tribunal must also have regard to the scope and purpose of the Act because that is the statute that sets up the architecture for a “character test” and the statute under which the Direction and its Annex A are made.
Paragraph 5.2(2) of Annex A draws a decision-maker’s attention to whether a person has been involved in activities indicating contempt or disregard for the law, including a history of serious breaches of immigration law, breach of visa conditions or visa overstay in Australia or another country. It also draws attention to the need to consider whether a person has been removed or deported from Australia and the circumstances that led to the removal or deportation.
Annex A refers to a person, like Mr Obeid, with unresolved criminal matters. Although the charges are, I have found, unlikely to proceed, they nonetheless remain at present before the Courts. Under the subheading ‘Discretionary visa cancellation or refusal’, section 1 (4) states:
(4) In considering a person with unresolved criminal matters, decision makers should note:
…
(b) a person who does not already fail the character test, and is the subject of criminal charges in Australia, which have not yet been finalised before the relevant court, would not generally be considered under section 501 until the charges have been finally determined.
Ms Hassan, Mr Abdullah Hassan and Mr Zackaria Hassan all suggested that Mr Obeid was somehow unaware or unfamiliar with the law in Australia, which led to him being arrested on two occasions. I reject that completely. These were not fine details of legal infractions that might depend on local knowledge, such as, say, catching fish out of season. The two incidents involved voluntary actions. In one case, the action was to drive around to another person’s house and engage in a very heated argument, brandishing some sort of implement. In the other case, the action involved a violent domestic argument, including the breaking of furniture and a mobile phone and, if not threats, heated and angry engagement. Mr Obeid freely said he regretted making Ms Hassan “scared”. As I have said, the ingredients admitted by Mr Obeid are sufficient for me to categorise that as an incident of family violence.
I place little weight on the single charge for possession of cannabis in gauging overall character. Mr Obeid said it was a single cigarette left behind by a friend, which he had put into a bag out of the reach of the children, and which the police found. Mr Orchard noted it was not a particularly serious allegation. The substance is referred to in the police report as “a very small amount of GVM” (i.e., green vegetable matter – marijuana) (SGD, p 11). However, it nonetheless is an illegal substance and something Mr Obeid should not have had in his possession, especially as a person in Australia on a visa, or a visa that had now expired. Had it been a larger amount or had there been any allegation of dealing in the drug, that would weigh much more heavily.
Mr Obeid has also breached Australian immigration law in 2013 with his illegal arrival, and again in 2019 by overstaying and knowing he was an illegal non-citizen. On two occasions, he has been returned to Lebanon by Australian immigration authorities; and on one occasion, removed from the migration zone, albeit both ultimately at his request.
I take due account of the evidence that goes in favour of Mr Obeid’s character: his work history, his contribution as a volunteer in Australia, and his clean police record in his home country. That carries significant weight, because the Tribunal is required to consider “present” as well as “past” general conduct. There is no evidence before me of any general conduct of Mr Obeid in Lebanon which is questionable, whether in the past or presently.
It is suggested in written submissions (GD, p 81) on behalf of Mr Obeid, that a person can only be found not to be of good character if the person is found not to have “enduring moral qualities”. This, with respect, is too glib. That phrase drawn from Godley I must be read in its context, which is moral judgment in day-to-day activities and in dealing with fellow citizens.
It is also the case that the High Court has found that a person who has otherwise done many things in his life that are worthy and are indicative of good character may be found not to be of “good character” because of a single but important act: In Re Davis [1947] HCA 53; (1947) 75 CLR 409, where the Court was considering a more distinctive test as to whether Mr Davis was a ‘fit and proper person’ to be a member of the legal profession, but which includes, especially in the judgment of Dixon J, valuable commentary on weighing a person’s overall general conduct.
In a case where the Visa Applicant has only been lawfully in Australia for some five or so months, an assessment of his day-to-day activities, judgment and conduct in dealing with fellow citizens must be made. In that period, Mr Obeid volunteered regularly and beneficially at a youth centre in his local community. He worked for a time as a hairdresser. He forged relationships with his wife’s wider family such as the three members who gave evidence in his support. He apparently was a loving and supportive husband, father and stepfather. That is in his favour. However, Mr Obeid also found himself arrested by the police and charged on two occasions over three months. He admitted, in both instances, to losing his temper and doing things he regretted. He also admitted overstaying his visa, when he could have taken steps before it expired to address that.
Section 501(1) of the Act gives a discretionary power to the Minister (or in this case the Tribunal standing in the Minister’s shoes) to refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. In reaching a general state of satisfaction required by a statute, the frequently quoted passage of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 is the leading authority. His Honour said:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
I do not accept the Respondent’s oral submission that the fact that Mr Obeid has not been convicted of any of the charges laid against him is “by the bye”. By this submission I look the Minister to be suggesting that the absence of convictions in assessing character is ‘incidental’. That may be a submission which could be made when the only reason matters have not been determined by a Court is because of the geographical absence of an accused person. But that is not the case here. In this case, not only are the facts in each instance contested, but in each instance the complainants have made statements withdrawing their complaint to the police. Because of this, the contested elements in each of the incidents in August and October 2019 fall squarely into a category of what Sir Owen Dixon called “inexact proofs”. Additionally, they are matters which I find will never be determined by a Court.
What the Tribunal is left with is two examples of angry conduct by Mr Obeid. In the second example, I have found he exhibited violent behaviour in front of his wife, which distressed her and this amounts to family violence. Are these facts, together with the immigration history of the Visa Applicant, sufficient to be satisfied overall that by his past and present general conduct he does not pass the character test? I find that they are not. I do not consider on the evidence before me that the two incidents which led to the charges being preferred are indicative of “prevalent” or “usual” conduct by Mr Obeid, to borrow the phrase used by Their Honours in Baker. He is a man aged 31 with no history of offending in this country or his home country, or of any other questionable conduct other than the matters set out above.
The Tribunal is reminded of the remarks of the Full Court in Godley II (at [55]) that where a decision-maker is unable to reach a positive decision that a person is not of good character, then that person will have passed the character test. That is consistent with the construction of the last sentence in section 501(6) of the Act, which provides that, if none of the preceding preconditions in that subsection are satisfied, “Otherwise the person passes the character test.” For completeness, the Tribunal finds that Mr Obeid passes the character test.
If a person satisfies the decision-maker that they pass the character test, then the discretion in this part of the Act is not enlivened to refuse the visa, and it is not necessary for the Tribunal to go on to discuss the considerations in Part 2 of the Direction as to whether the discretion should be exercised.
It follows that, having found the Visa Applicant passes the character test, the correct and preferable decision in this matter is that Mr Obeid should not be refused a Partner (Provisional) (Class UF) visa.
DECISION
The Tribunal sets aside the decision under review dated 10 November 2021, with a direction that the Visa Applicant passes the character test under section 501(6) of the Act.
I certify that the preceding 151 (one hundred and fifty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
..................[sgd]......................................................
Associate
Dated: 31 January 2022
Date of hearing:
13 January 2022
Review Applicant:
Ms Jinan Hassan
Visa Applicant:
Mr Mahmoud Obeid
Solicitor for the Respondent:
Mr Christopher Orchard
Solicitors for the Respondent:
Sparke Helmore Lawyers
0
9
0