Henin and Minister for Immigration and Border Protection (Migration)

[2017] AATA 2095

Henin and Minister for Immigration and Border Protection (Migration) [2017] AATA 2095 (6 November 2017)

Division:GENERAL DIVISION

File Number:           2017/4936

Re:Ramy Reda Fahmy Henin

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Ms Anna Burke, Member

Date:6 November 2017

Place:Melbourne

The Tribunal sets aside the decision under review and in substitution decides that the applicant should not be refused a Partner (Migrant) (Class BC) Visa under s 501(1) of the Migration Act 1958 (Cth).

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

Ms Anna Burke, Member

MIGRATION – Visa refusal – applicant is a citizen of Egypt – applicant applied for a partner visa – history of domestic violence and failure to comply with court orders – applicant does not pass character test in s 501(6)(c) – applicant not of good character on account of past criminal and general conduct – whether discretion to refuse visa should be exercised – applicant does not present unacceptable risk of reoffending – minor child in Australia – international non-refoulement obligations – applicant a Coptic Christian – decision under review set aside

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth); s 33

Migration Act 1958 (Cth); ss 499, 500, 501, 501F

CASES

Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456
Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411
Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

Wong v Minister for Immigration and Multicultural Affairs [2002] FCAFC 440

SECONDARY MATERIALS

Department of Foreign Affairs and Trade, DFAT Country Information Report Egypt, 19 May 2017

Minister for Immigration and Border Protection (Cth), Ministerial Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a Visa under s 501 CA, 22 December 2014

REASONS FOR DECISION

Ms Anna Burke, Member

6 November 2017

1. On 29 May 2017 a delegate of the Minister for Immigration and Border Protection (the Minister) issued a notice of intention to consider refusal to grant Mr Henin’s Partner (Migrant) (Class BC) Visa (the visa) under s 501(1) of the Migration Act 1958 (Cth) (the Act). On 14 June 2017 Mr Henin provided a response to the intention to refuse his visa.

2. On 11 July 2017 a delegate of the Minister made a decision to refuse Mr Henin’s application for a visa under s 501(1) of the Act. Notice of this decision was provided to Mr Henin on 15 August 2017. The delegate found that Mr Henin did not pass the character test, as set out in s 501(6) of the Act. In particular, the delegate found that Mr Henin failed to meet s 501(6)(d)(i) of the Act, as there was an ongoing risk he would engage in criminal conduct if he were allowed to remain in Australia. The delegate found that there were no sufficient countervailing considerations in Mr Henin’s case to warrant the Australian community accepting any level of risk and decided to exercise the discretion to refuse the visa. In accordance with s 501F(3) of the Act, the consequence of this decision was that Mr Henin’s Bridging A (Class WA) visa was cancelled by operation of law.

3. On 17 August 2017 the Administrative Appeals Tribunal (the Tribunal) received an application from Mr Henin lodged under s 500(1)(b) of the Act seeking review of the decision to refuse to grant his visa. At the time, Mr Henin was being held at the Maribyrnong Immigration Detention Centre. At the hearing of his application on 24 and 26 October 2017, Mr Henin was represented by Mr Guy Gilbert of counsel instructed by Mr Nazim El-Bardouh, from Bardo Lawyers. Mr Damien Clarke, solicitor advocate from Clayton Utz, appeared for the Minister. The Tribunal and the parties were also assisted by an Arabic interpreter, Ms Feyrouz Khayat. The Minister lodged a set of paginated G-Documents and the applicant provided a number of written statements to support oral evidence. Documents received under summons from the Victoria Police and the Broadmeadows Magistrates Court were also accepted into evidence.

   BACKGROUND

4. Mr Henin is a 31 year old Egyptian national who came to Australia on 16 April 2011 at age 25, travelling on a Partner (Provisional) (Class UF) (Subclass 309) visa. His sponsor was his wife Linda Hanna, an Australian citizen, whom he married in Cairo on 30 September 2006.

5. Mr Henin was 17 when he met Ms Hanna in September 2003. She had travelled to Egypt to attend the wedding of Mr Henin’s uncle, Hany. She stayed with Mr Henin’s family for a period of two months and although she was 13 years older than Mr Henin, he stated that they quickly developed feelings for each other. Ms Hanna subsequently travelled to Egypt on multiple occasions and stayed with Mr Henin’s family for periods of two to three months each time. Mr Henin and Ms Hanna had a protracted separation before they were married as he had to complete his compulsory military service.

6. Ms Hanna was born in Iraq and became an Australian citizen in 1986. She was previously married and divorced in 1993. She has a teenage daughter, Dana, born in 1997. At the time Ms Hanna sponsored Mr Henin she was in receipt of the disability support pension and living in public housing.

7. Mr Henin has a three year old daughter with Ms Hanna (referred to as Child x in these reasons for decision). Child x currently resides with her mother.

8. Mr Henin’s father is his only relative remaining in Egypt. He currently resides in an aged care nursing home. His mother and two younger siblings have fled to Turkey as a result of persecution of Coptic Christians in Egypt and they are currently applying for humanitarian refugee visas in Australia sponsored by Mr Henin’s uncle, Mr Medhat Botros. Mr Henin has an extensive family in Australia including his older sister, aunts, uncles, cousins and grandmother.

9. Mr Henin completed year 12 in Egypt and commenced an IT course. However, he discontinued his IT studies sometime during the first year. He worked in hospitality in Egypt and completed compulsory military service for a period of two years and four months. Whilst in Australia, he worked in the plastering industry and was running his own business until he fell and broke his arm. He was providing financial support to his wife and child and family in Egypt during this time.

10. Mr Henin has an extensive migration history as outlined below:

    ·4 October 2010 – Mr Henin applied for a Partner (Provisional) (Class UF) Visa and a Partner (Migration) (Class BC) Visa.

    ·3 April 2011 – Mr Henin was granted a Partner (Provisional) (Class UF) Visa.

    ·18 April 2012 – Mr Henin’s Partner (Migration) (Class BC) Visa was refused as his relationship with his wife had broken down.

    ·13 November 2012 – Mr Henin applied for a Protection (Class XA) Visa. This was refused on 21 January 2013. On 14 October 2013 this decision was affirmed at the Refugee Review Tribunal (RRT). Mr Henin unsuccessfully appealed the RRT decision to the Federal Court of Australia, with the court finding in the Minister’s favour on 7 December 2015.

    ·16 April 2015 – Mr Henin’s Bridging A (Class WA) Visa was cancelled under s 116 of the Act as he had been convicted of an offence. On 24 April 2015 the Migration Review Tribunal (MRT) set aside the decision to cancel Mr Henin’s bridging visa, finding that the applicant if released would not present a threat to the community. The MRT also noted that the bridging visa did not determine whether or not Mr Henin had the right to remain in Australia, but that this would be determined in respect of other visa applications awaiting determination.

    ·22 June 2015 – The MRT remitted Mr Henin’s application for a Partner (Migrant) (Class BC) Visa for reconsideration, having found that the relationship between Mr Henin and Ms Hanna had broken down but that he was nonetheless eligible for the Partner Visa as he had ongoing legal rights and obligations in respect of his biological child.

    ISSUES

11. There are two central issues before the Tribunal in this application for review:

    (a)does Mr Henin pass the character test in s 501(6) of the Act?; and

    (b)if Mr Henin does not pass the character test, should the Tribunal exercise its discretion to refuse the visa?

    LEGISLATIVE FRAMEWORK

12. Section 501(1) of the Act gives the Minister the power to refuse to grant a visa if a visa applicant is unable to satisfy the Minister that he or she passes the character test. The term character test is defined in section 501(6) of the Act. Relevantly for this matter, s 501(6) provides that:

    (6)For the purposes 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; or

    (d)in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

    (i)engage in criminal conduct in Australia; or

    (ii)harass, molest, intimidate or stalk another person in Australia

    …

13. If an applicant is found not to pass the character test, the discretion to refuse the visa must be considered. Under s 499(1) of the Act, the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. A person or body having those functions or powers, including the Tribunal, must comply with any relevant direction (s 499(2A) of the Act; see also Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J). Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction) is a direction made under s 499 of the Act and provides a guide for decision-makers performing functions or exercising powers under s 501 of the Act (para 6.1(4) of the Direction).

14. Paragraph 6.1 of the Direction outlines the objectives of the Act and the Direction, stating in part:

    (1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

    (2)Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.

    …

15. Paragraph 6.2 of the Direction sets out General Guidance relating to the Government’s intent:

    (1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

    …

    (3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501… The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B…

16. The principles referred to in the General Guidance and reproduced below, constitute a framework within which decision-makers apply the considerations in Parts A, B, or C of the Direction (para 6.3):

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing a visa.

    (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

17. In deciding whether to exercise the discretion to refuse to grant a visa, the Tribunal should have regard to the primary and other considerations in PART B of the Direction. Paragraph 11(1) of the Direction provides that the primary considerations are:

    a)Protection of the Australian community from criminal or other serious conduct;

    b)The best interests of minor children in Australia;

    c)Expectations of the Australian Community.

18. Paragraph 12(1) provides that the other considerations that must be taken into account, where relevant, include (but are not limited to):

    a)International non-refoulement obligations;

    b)Impact on family members;

    c)Impact on victims;

    d)Impact on Australian business interests.

19. Paragraph 8(4) of the Direction states that primary considerations should generally be given more weight than the other considerations. Paragraph 8(5) states that one or more primary considerations may outweigh other primary considerations.

    EVIDENCE

    Mr Henin’s criminal offending

20. The following table has been derived from records against Mr Henin as outlined in a National Police Certificate dated 17 November 2016.

COURT	COURT DATE	OFFENCE	COURT RESULT
Broadmeadows Magistrates Court	22 Sep 2015	Contravene Community Correction Order	Proven. No further penalty imposed.
Broadmeadows Magistrates Court	27 Feb 2014	Unlawful Assault	Convicted and a community correction order for 12 months. To perform 100 hours community work
Broadmeadows Magistrates Court	27 Feb 2014	Contravene release on adjournment order	Proved. No further penalty imposed
Broadmeadows Magistrates Court	27 Feb 2014	Fail to answer bail granted	Convicted and fined $300
Broadmeadows Magistrates Court	15 Jun 2012	Unlawful Assault Fail to answer bail Contravene family violence intervention order	On all charges: Without conviction, adjourned to be of good behaviour until 13 June 2013

1. On 26 September 2011 Mr Henin and Ms Hanna were involved in a verbal and physical altercation which resulted in the police being called to the home. The police incident summary report states:

   Offender Remy Henin and the victim… have been married for approximately 5 years and live together at….. Victim has a daughter who is 14 years old who also lives with the offender and the victim. On 26 September 2011 the victim was on the phone to the offender’s uncle having a disagreement when the offender told the victim not to talk to his uncle that way. The offender put both his hands round the victim’s head and squashed the victim’s head in the offender’s hands. The offender punched the victim to the head approximately 3 to 4 times and slapped the victim on her back. Offender then left the premises. Victim stated offender has physically abused her before but hasn’t reported to police. Victim rang a friend who then reported it to police.

   Henin was arrested on 26/09/11 at approximately 2250 at the Broadmeadows police station where he was also interviewed re unlawful assault. Henin stated his wife… was talking on the phone to Henin’s uncle. [Ms Hanna] started swearing at Henin’s uncle and Henin told her to stop swearing at him. [Ms Hanna] then hit Henin on his face, causing a scratch. Henin held [her] face and said don’t hit me and gave her a push backwards. [She] approached Henin and that’s when he punched [her] twice to the head and once on her back then Henin left the premises. Henin’s reason was I couldn’t control myself I was very nervous.

2. Mr Henin was charged with unlawful assault, failure to answer bail and contravening a family violence intervention order. On 15 June 2012, in the Broadmeadows Magistrates Court, those charges were proven but no conviction was imposed. The matter was adjourned to allow Mr Henin to undertake an anger management program and to be of good behaviour until 13 June 2013. Mr Henin failed to undertake the anger management program.

3. On 24 September 2013 Mr Henin and Ms Hanna were involved in a heated exchange, which resulted in Ms Hanna being physically assaulted and subsequently, the police being called to their home. The police incident summary report states:

   The AFM [affected family member] and the respondent have been married for approximately 6 years. The respondent resides at… on and off. The AFM stated he lives there and then they have issues so he leaves. On the 24 September 2013, the AFM was driving the respondent and appointment in… On the way they started having a verbal argument over the respondent telling the AFM that his family doesn’t agree with him being married to her. The respondent was saying abusive things about AFM’s family including saying the AFM’s mother is a slut. The AFM told the respondent his mother is a slut. The respondent slapped the AFM on the left cheek while she was driving. She told the respondent to get out of the car but he wouldn’t she told him to shut up and turned the radio up. The AFM dropped the respondent off and went home. The respondent returned to… at approximately 1520 hours (over four hours after the initial incident). The respondent came inside and went to the bathroom, kitchen and bedroom before leaving again. The AFM was annoyed because he didn’t say anything or explain his long absence. The AFM said “is that how well mannered you are, you come 4 or 5 hours later and then in and out and don’t even say where you were and talk about how I was raised”. The respondent ignored the AFM so she swore at him again saying his mother is a slut. The respondent returned and was banging on the door with his foot. Nil damage was caused. The AFM called police. The respondent had told the AFM he was planning on leaving her in two days anyway. The respondent waited for police to arrive as he wanted to collect his belongings. He only stays at the house occasionally. The AFM is currently suppose to provide immigration a report about their marriage in order for him to remain in the country. It appears the AFM is holding this over the respondent heads and continues to refuse to do it. Police have no concerns for the safety of the AFM. She did not report the incident at the time. The AFM stated she did not want an intervention order. Field interview conducted with the respondent at the scene re unlawful assault. There is no corroborative evidence to this charge. Formal referrals for both parties. Brief to be prepared.

1. On 27 February 2014 Mr Henin was convicted of unlawful assault in relation to the 24 September 2013 incident. Mr Henin was placed on a Community Corrections Order of 12 months which required him to perform 100 hundred hours of community work and to participate in a behavioural change program.

2. Between September 2011 and May 2017 Ms Hanna has sought and received numerous intervention orders against Mr Henin. In September 2011 Mr Henin sought and received an intervention order against Ms Hanna. Over the six-year period of their marriage, and despite numerous intervention orders, Mr Henin and Ms Hanna have maintained a relationship, which resulted in the birth of their daughter in May 2014. Ms Hanna in January 2014 sought to vary her original intervention order because she stated I am wanting to be able to contact the respondent because of important family issues (pregnancy).

3. Mr Henin has also been convicted and fined for failing to answer bail and contravening his release on adjournment order. Additionally, he has been convicted of failing to comply with corrections orders on multiple occasions. Whilst these allegations have been proven, no further penalty has been imposed.

   THE CHARACTER TEST

4. The Minister argued that Mr Henin failed the character test as he was not of good character within the meaning of s 501(6)(c) of the Act and because there was still a risk that he would engage in criminal conduct in Australia under s 501(6)(d) of the Act. For the reasons outlined below, the Tribunal finds that Mr Henin does not pass the character test as he is not of good character under s 501(6)(c) as a result of his past criminal and general conduct. The Tribunal has not found, however, that there is a risk of Mr Henin reoffending for the purposes of s 501(6)(d).

5. Counsel for Mr Henin contended that the Tribunal should be satisfied that the applicant has demonstrated that he passes the character test. This was asserted on the basis that, whilst not in any way condoning his acts of domestic violence, they were at the lower end of the scale and this had been demonstrated by the penalties administered by the courts. Further, Mr Henin’s last offending by commission (as opposed to by omission) occurred in September 2013, some four years ago, and for the majority of that time he has been in the community where he has committed no further offences, most particularly against his wife.

6. The Minister’s representative contended that Mr Henin has a continuing pattern of offending, his first offence was recorded the year after he entered Australia, and his behaviour has continued over many years, demonstrating a disregard for the safety and integrity of the Australian people, and a disregard for his obligations to the Australian judicial system. The Minister strongly argued that this demonstrated that Mr Henin is not of good character and the tribunal should affirm the decision under review.

7. The Minister reiterated the contention that Mr Henin was not of good character as he lacked insight into his offending, had sought to blame others for his actions, and had failed in any way to seek help to redress his offending. The Tribunal was directed to a statement of Mr Henin dated 24 July 2016 which in part stated:

   I have attended to the MRT and brief them with all the incidents in the nature of the relationship between me and my ex-wife as until present time we are still legally married and she did not take any legal action to get divorce while she has my child in her care.

   I have accepted the intervention orders that was issued by the court despite I have never had abusive or threaten my wife in any ways but the only reason I have accepted that was mainly to keep good faith with her and allow me to see my daughter.

   I have never acted against or objected [to] any legal order for me my entire life and while my wife who is apparently has a mental issue was totally confused and suffered from her being in the middle between her family and me she was not sure what she was doing as she was lost.

   …..

   The above will demonstrate that instance listed in my character record was only because of me not being able to understand mainly the English language, the law and order and regulations in Australia and in fact I have abided by all the orders that was imposed on me by court and up to date my record is clear.

   It would be great to refer to my last court hearing with both judges admitted that I had done nothing wrong my only problem was being too nice and not fighting back to gain any legal advocate or any benefits but at the end I have told them this is my nature and for the sake of my child.

8. In Mr Henin’s statement to these proceedings, accepted into evidence by the tribunal on 24 October 2017, he states:

   [Regarding the 24 September 2013 incident] … As things got heated, I said things to Linda that I regret - I called her mother a slut. When Linda retaliated by spitting at me and also calling my mother a slut, something I’d never heard before, I over reacted by slapping Linda on the cheek. Something that I deeply regret and wish I could take back.

   …

   I wholeheartedly acknowledge that my prior behaviour with Linda was unacceptable. After attending court and being subsequently punished by having to complete a community corrections order, I now understand the gravity and unacceptable nature of my actions.

9. The Minister also sought to demonstrate that Mr Henin had not taken his actions seriously and had not sought to address the cause of his offending as he had failed to undertake any action in respect of his anger issues. Much was made of Mr Henin’s refusal to attend an anger management course as directed by the courts and that the seriousness of this matter had been dealt with on many occasions, as Mr Henin was found in breach of court orders as he had not undertaken this course.

10. Counsel for Mr Henin argued that:

    It appears that it was a condition of this adjournment order that the applicant attend an anger management course. However, unfortunately, he was unable to do this because of his difficulty in finding one which accommodated his language…

    Importantly, the applicant did not breach the adjourned undertaking by further offending. Whilst he did not comply with his Community Corrections Order, it is also noteworthy that there was no further offending during the currency of that Order either. Again, as with the breach of the bond, the court did not impose any further penalty. This demonstrates that his explanation for not having been able to comply with the order (ie his inability to do an anger management course), was accepted by the court.

11. Counsel for Mr Henin went further to explain that although Mr Henin was no longer obliged to undertake the course, he was still willing to do so as outlined in his statement:

    Although I have been adamant to complete my men’s behavioural change program, to ensure that I am completely rehabilitated, I have experienced great difficulty. As I do not understand English, I cannot effectively participate in an English behavioural change program. I have persistently attempted to find a program that is run in Arabic however to no avail. I informed the Magistrate of my dilemma and he subsequently waived the requirement that I complete the men’s behavioural change program. I nevertheless remain willing to complete the men’s behavioural change program should one be conducted in Arabic.

12. The Minister maintained that Mr Henin was not genuine in his desire to complete a course and asked if he was aware of the Victorian Arabic Social Services which can assist with numerous courses in the Arabic language. Mr Henin said he was not aware of that organisation but that his family members had made various unsuccessful inquiries about an appropriate course for him to undertake. Under cross-examination from the respondent, Mr Henin also stated that he had undertaken one-on-one instructions with his priest over several weeks to discuss his behaviour and ways to deal with his anger and relationship with his wife. Mr Henin advised the tribunal he had found these sessions of great help and they had given him mechanisms by which he could respond to stressful situations.

13. Guidance on whether someone is of good character is provided within the Direction in s 2-5 of Annex A. It relevantly notes that:

    …

    (2)The concepts of criminal conduct and general conduct are not mutually exclusive. Conduct can be both general and criminal at the same time or it may be either general or criminal conduct: Wong v Minister for Immigration and Multicultural Affairs [2002] FCAFC 440 at [33].

    (3)In considering whether a person is not of good character, all the relevant circumstances of the particular case to be taken into account to obtain a complete picture of the person’s character.

    a)In Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411, Lee J said at [34] ‘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.’

    (4)In order to fail this limb of the character test, a person need not necessarily have a recent criminal conviction, or have been involved in recent general conduct which would indicate that they are not of ‘good character’. However, the conduct in question must be sufficient to indicate a lack of enduring moral quality that outweighs any consider of more recent good behaviour.

    a)In Godley, Lee J went on to say ‘For a finding to be made under s501(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 judgement. 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 not of good character’.

    ‘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.

14. The Tribunal has found that Mr Henin’s domestic violence related offending was significant and does not accord with Australian values. To paraphrase Justice Lee in Godley, there was considerable moral turpitude involved in Mr Henin’s two unlawful assaults. Resorting to domestic violence is unacceptable in any circumstances and is not indicative of good character. Mr Henin’s disregard for judicial orders is also of concern in this regard. Although he is not a risk of committing further violent offences against a future spouse or any other member of the community (outlined later in these reasons for decision), the Tribunal is of the view that not enough time has passed for Mr Henin to be deemed of good character again under s 501(6)(c) of the Act. He therefore fails the character test. However, the Tribunal finds that he does not present a risk to the community of reoffending and therefore does not fail to meet s 501(6)(d) of the Act. Mr Henin’s risk of reoffending is further explored under the Protection of the Australian community consideration below.

    THE DISCRETION

15. As Mr Henin does not pass the character test, the Tribunal must consider whether it should exercise its discretion to refuse the visa under s 501(1) of the Act. In doing so, it must have regard to the relevant primary and other considerations within the Direction. All three primary considerations are relevant in this matter and are explored in greater depth below. Two of the other considerations, being international non-refoulement obligations and impact on family members also arise on the evidence before the Tribunal and are outlined below. Impact on victims and impact on Australian business interests, as defined within the Direction, do not arise on the evidence.

    PRIMARY CONSIDERATIONS

    Protection of the Australian Community

16. Paragraph 11.1 of the Direction provides that:

    (1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:

    a)The nature and seriousness of the non-citizen’s conduct to date; and

    b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    Nature and seriousness of the conduct

17. Paragraph 11.1.1 of the Direction relevantly states that:

    (1)In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:

    a)The principle that, without limiting the range offences that may be considered serious, violent and/or sexual crimes are viewed seriously;

    b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled)… are serious;

    …

    d)The principle that any conduct that forms the basis for a finding that the non-citizen does not pass a subjective limb of the character test is or is not of good character under s 501(6)(c), is considered to be serious;

    e)The sentence imposed by the courts for a crime or crimes;

    f)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

    g)The cumulative effect of repeated offending;

    …

18. The Tribunal is of the view that Mr Henin’s offending is serious. Although a conviction for unlawful assault is the lowest category of assault within the criminal law, Mr Henin’s offending was nonetheless violent and displayed a disregard for the family violence intervention order. Mr Henin’s offending was frequent over the three year period in which it occurred. The Tribunal acknowledges that a custodial sentence was never imposed and that this is often indicative of a less serious offender. However, taking into account the violent nature of two of Mr Henin’s offences, as well as his persistent disregard for judicial orders during the period of his offending, the Tribunal is of the view his offending is serious.

    Risk to the Australian community

19. Paragraph 11.1.2 of the Direction provides that:

    (1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.

    (2)In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (3)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

    a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    i.information and evidence from independent and authoritative sources on the likelihood of the non-citizen reoffending; and

    ii.evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and

    iii.the duration of the intended stay in Australia.

    (4)Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.

20. The nature of the harm should Mr Henin reoffend is likely to be quite serious and physical in nature. Most likely, it would be in a similar vein to the unlawful assaults he committed. If he were to reoffend, the likely victim of that offending would be Ms Hanna or another partner.

21. As to the actual likelihood of Mr Henin reoffending, counsel for Mr Henin contended that the Tribunal should take into account the significant amount of time Mr Henin has spent in the community without further offending, some four years, and argued that this is a sure sign for the future. It was argued that the risk of Mr Henin reoffending was at the lower end of the scale. Conversely, the Minister argued that Mr Henin has failed to assess the cause of his offending, repeatedly breached judicial orders and has not taken part in appropriate rehabilitation.

22. In Mr Henin’s statement to the Tribunal he states:

    I now completely understand the awful negative ramifications of my behaviour on both my family, and the broader Australian community. I also understand the expectations of members of the Australian community, namely that I remain compliant with and obedient to Australian Law.

23. Mr Henin told the Tribunal that all the trouble he had experienced in Australia had been in relation to his wife and because that relationship has now broken down, there is no reason for him getting into any more trouble. Additionally, he wants to remain trouble-free so he can continue to have access to his daughter.

24. The Broadmeadows Community Correctional Services assessed Mr Henin’s risk of reoffending at the request of the Broadmeadows Magistrates Court to determine Mr Henin’s suitability for a Community Corrections Order. The report dated 27 February 2014 found Mr Henin’s general risk of reoffending as being low according to the VISAT. The Tribunal notes that Mr Henin did commit offences after this assessment. It should be noted, however, that those offences were breaches of his community based orders and were not violent in nature.

25. The decision of the MRT on 24 April 2015 in respect of the cancellation of Mr Henin’s (Bridging A) visa on the basis that he had been convicted of an offence found the following:

    I accept that the severity of the offence which provides the ground for cancellation is low and that more than one year has elapsed since the conviction and completion of the community service order. I also accept the applicant’s explanation relating to the ongoing matter of the anger management program he is required to undertake.

    I am also satisfied that the applicant has been cooporative in his dealings with the Department. And I accept that the cancellation and detention have had a positive effect on his likely future attitude to regard for the law generally.

    I’m also satisfied that his continued detention for what may be several months while he awaits the outcomes of the two matter on foot would cause undue hardship. Not only to the applicant by depriving him of his liberty, but also to the efforts he is making to reconcile his marital relationship and resume contact with his daughter. I accept the evidence that the applicant is making genuine efforts and engaging with Family Relations to restore his marriage and resume a good relationship with his daughter.

    …

    I also accept the hardship that would be experienced by his family and friends and note their strong support of him. I have placed significant weight on the supportive evidence given to the Tribunal.

1. Counsel for Mr Henin submitted that the Tribunal should rely upon this previous assessment and that there should not be inconsistent findings from like Tribunals in the interest of comity. The Tribunal notes that Mr Henin has not offended since the MRT hearing.

2. The report of 6 October 2017 by Mr Tim Watson Munro, consultant forensic psychologist, assesses the question of Mr Henin’s prospect of reoffending if he remains in Australia. In the report he states:

   … Mr Henin’s offending behaviour has occurred primarily in the context of a dysfunctional relationship. He has had no treatment for his problems and beyond the most recent separation leading to his current detention, by his account there were earlier periods of separation and reconciliation. In other respects he has adjusted well to life in Australia, by his account he is devoted father to his child. He is saddened by the fact that he has not been able to establish a well bonded relationship with his step-daughter. The fact that he does not use drugs or alcohol in my view augers well for a positive prognostic outcome in this case if given the opportunity for treatment. He stated in addition he is keen to re-join the workforce, which will provide structure for him during the day. His regimen of access to his daughter can be organised, in conjunction with treatment and employment, the likelihood of him reoffending will be substantially reduced as the trigger factors referable to his behaviour will be removed. Mr Henin is well aware of the gravity of his current situation and has expressed remorse for his past actions. He understands that if he is given the chance to remain in Australia and he squanders this opportunity through further offending, he will be deported to Egypt, which in itself will create a separate raft of substantial problems for him referable to his safety and his inability to secure employment, against a backdrop of having no real connection to his country and his family living in other parts of the World.

3. The Tribunal is not convinced that Mr Henin poses a risk to individuals or the Australian community. The Tribunal found Mr Henin had insight into his offending; that he had had a significant period in the community where he had not reoffended; that his dysfunctional relationship with his wife, the cause of his offending, had come to an end; and that his genuine fear of being separated from his child and his understanding of the gravity of his reoffending were all protective factors against any risk of reoffending.

   Conclusion

4. Although Mr Henin’s offending was serious, the Tribunal is of the view that his risk of reoffending is low. Mr Henin does not represent an unacceptable risk of future harm to the Australian community or other individuals. The protection of the Australian community consideration weighs slightly in favour of not refusing Mr Henin’s application for a visa under s 501(1) of the Act.

   Best interest of minor children in Australia affected by the decision

5. Paragraph 11.2 of the Direction relevantly provides that:

   (1)Decision-makers must make a determination about whether refusal is, or is not, in the best interests of the child.

   (2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant the visa is expected to be made.

   …

   (4)In considering the best interests of the child, the following factors must be considered where relevant:

   a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

   b)The extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements;

   c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;

   d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to main contact in other ways;

   e)Whether there are other persons who already fulfil a parental role in relation to the child;

   f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

   g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

   h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

6. The Tribunal accepts it is in the best interests of Mr Henin’s child for his visa not to be refused. Whilst Mr Henin has had limited contact with his daughter since his detention, this has not undermined or deterred his resolve to be a good father to her. Mr Henin provided advice at the hearing that he had sought to maintain contact with his daughter but this had been blocked by his wife, and if allowed back into the Australian community he would make every endeavour to ensure he was again part of her life. The Tribunal accepts that should Mr Henin be removed from the Australian community he would lose any hope of meaningful contact with his daughter, regardless of the possibility of some contact by social media and phone.

7. In Mr Henin’s statement to the tribunal he states:

   While I left the home that I shared with Linda, one month following [Child x’s] birth, I have nevertheless taken every opportunity to spend time with and communicate with her. For instance, every time Linda permitted me to see [Child x] I did so. Prior to my detention, I spent time with [Child x] approximately four or five times per week.

   I would like equal shared parental responsibility and equal time with [Child x]. I want to build our close and long-lasting relationship with my daughter. I believe that is in the best interests of [Child x] that she have a close and meaningful relationship with me. While I understand there is need to protect [Child x] from all forms of violence, I would never hurt [Child x] physically or psychologically. I have learnt from my prior mistakes and believe that through my rehabilitation, I have become a reformed man. I not only will be a great father to [Child x], I would also never do anything to hurt her.

8. Mr Henin tendered numerous character references to the Tribunal. All of them speak of the love and devotion he has for his daughter. Several of them described how they had witnessed Mr Henin interacting in a caring and passionate way towards his daughter and that she made him incredibly happy. Additionally, Mr Henin tendered photos and a small video of him happily interacting with his child. The Tribunal is mindful of the fact that Mr Henin committed acts of domestic violence towards Ms Hanna and that if these acts were to be repeated then Mr Henin would constitute a negative influence on his daughter going forward. However, the Tribunal is confident that Mr Henin will not repeat his previous conduct. Taking into account the matters outlined above, the Tribunal finds that the best interests of the child strongly support not refusing Mr Henin’s application for a visa under s 501(1) of the Act.

   Expectations of the Australian community      

9. Paragraph 11.3 of the Direction states:

   (1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because of the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.

10. The Minister strongly contended that the Australian community would expect Mr Henin not to be given the right to remain in Australia. Further, it was argued that crimes of a violent nature against a person within an intimate partner relationship are not tolerated by the community and no such person should be granted a visa. The respondent highlighted that the community rightly expects non-citizens to obey the laws of Australia and respect their institutions. It was submitted that Mr Henin’s history of violent offending against his wife was fundamentally incompatible with the values and expectations of the Australian community. Attention was also drawn to the Government’s efforts to combat domestic violence in Australia and that these were indicative of the seriousness with which the Australian community views domestic violence. Finally, the Minister highlighted Mr Henin’s persistent disregard for and failure to abide by the directions of the court and stated that he showed a lack of respect to judicial authorities.

11. Counsel for Mr Henin observed that right thinking members of the community, apprised of the facts of this case, would not expect refusal of Mr Henin’s visa. In this regard, reliance was placed on the view expressed by Block DP in regard to the term expectations of the Australian community (as it appeared in an earlier Ministerial Direction) in Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458 at [7]:

    It assumes (incorrectly) that there is an Australian community which thinks as one. The supporters of One Nation would have one view as regards immigration, and there is of course a very large diametrically opposed body of opinion in Australia. I construe this reference as being correctly made to middle-of-the-road reasonable members of the Australian community who do not hold extreme views one way or another. And I think that there is a further limiting factor and that is that one must import into the Australian community, knowledge of the evidence before me. …

12. In a more recent decision of Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999, Forgie DP noted that determining the expectations of the Australian community is ultimately a matter for judgment, the facts of which that judgment is made must be made on the basis of facts established by the evidence (at [72]). In assessing the expectations of the Australian community, regard should also be had to the principles in paragraph 6.3 of the Direction as they reflect community values and standards (para 6.2(1)).

13. The Tribunal concurs with the government’s view that women and children have the right to feel safe and live without fear of violence. Sadly that is not the experience of one in six Australian women who have experienced violence from a current or former partner, nor the more than 60 women who are killed each year in Australia by their partner. The majority of Australians find domestic violence to be abhorrent. Sadly there is still a scourge of domestic violence in our community. However, that is but one matter that must be considered when gauging the expectations of the Australian community in relation to Mr Henin’s application for a visa. Taking into account Mr Henin’s low risk of reoffending, the best interests of his daughter, the impact refusal will have on several of his other family members and the risk of harm he will face if he is returned to Egypt, the Tribunal is of the view that the Australian community would afford him a final chance. There is not an unacceptable risk on the evidence before the Tribunal that he will breach the trust of the Australian community again. This consideration weighs slightly in favour of not refusing Mr Henin’s visa application under s 501(1) of the Act.

    OTHER CONSIDERATIONS

    International non-refoulement obligations

14. Paragraph 12.1 of the Direction provides:

    (1)A non-refoulement obligation is an obligation not to forcibly return, deport of expel a person where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT) and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act

    (2)The existence of a non-refoulement obligation does not preclude refusal of a non-citizen’s visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists.

    (3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s501 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa).

    (4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.

    …

    (6)In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending and other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa application were refused, they would face the prospect of indefinite immigration detention.

15. Both parties contend that, as a result of the Full Court of the Federal Court’s decision in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456, the Tribunal is required to assess international non-refoulement obligations and the type of harm that Mr Henin may suffer if returned to Egypt. The Tribunal cannot defer the matter in the way paragraph 12.1(4) of the Direction contends. The Tribunal does not have to engage in the same depth of analysis that would be required for an application for a protection visa under s 36 of the Act, but must consider whether Mr Henin is at risk of a specific type of harm if he were to return to Egypt (see Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 at 521).

16. The Minister argued that Mr Henin’s previous refusal of a protection visa (and failed merits and judicial review applications in the RRT and Federal Court respectively) should indicate to the tribunal he is not at risk of harm in Egypt and therefore Australia would not be in breach of its non-refoulement obligations if he were returned. The Minister’s representative argued that although the Tribunal was not bound by the findings of the RRT and the Federal Court in that particular visa application, it should find similarly. It was also noted that the Tribunal does not have the benefit of an Immigration Treaties Obligations Assessment.

17. In Mr Henin’s statement to the tribunal he states:

    I’m a Coptic Christian who is unable to return to Egypt. I fear that I will be persecuted because of my religious belief.

    As I mentioned above the only family I have in Egypt is my father who is currently residing in a nursing home my mother and siblings have fled to Turkey from Egypt as they were being persecuted because they are Coptic Christians.

    Should I be forced to return to Egypt, I fear that I too, will become a victim of persecution. This prospect is made worse by the fact that I have no support network in Egypt.

18. Several ensuing paragraphs of Mr Henin’s statement then outline the issues Coptic Christians face in Egypt, with the factual information in those paragraphs being wholly derived from two newspaper articles and a report of the UK Home Office, all of which were publicly available documents on the internet. Those documents were not annexed to his statement, but rather, they were referred to in footnotes, with a hyperlink for each provided. Two of the three hyperlinks were broken. The Minister rightly contended at the commencement of the hearing that the Tribunal cannot have regard to those documents or the information in Mr Henin’s statement derived from them as the relevant documents were not provided to the Minister two business days before the hearing (s 500(6J) of the Act). Appropriately, the Tribunal had no regard to the documents in reaching its decision. However, the Tribunal sought to inform itself of the situation in Egypt as it thought it was appropriate to do so in the circumstances (s 33(1)(c) of the Administrative Appeals Tribunal Act 1975). The Tribunal informed the parties that it intended to rely upon the DFAT Country of Information Report for Egypt (dated 19 May 2017). Neither party opposed the Tribunal having regard to the document. The report relevantly states that:

    Since December 2016, the Islamic State terrorist organisation has claimed responsibility for a series of major attacks targeting Coptic Christian churches… On 11 December 2016, an Islamic State suicide bomber targeted a church service in Cairo, killing 29 and injuring 49. On 19 February 2017, a group calling itself “IS Egypt” released a video calling for the targeting of Coptic Christians. Two major attacks against Palm Sunday church services occurred on 9 April, both claimed by Islamic State. The first attack occurred in Tanta, killing 27 and injuring over 70. The second occurred at St Mark’s Cathedral in Alexandria, the historic seat of the Coptic Pope, killing at least 16 and injuring 66. Pope Tawadros, head of the Coptic Church, was delivering a service at the cathedral at the time, but escaped unharmed. In addition to the series of attacks on churches around 154 Christian families fled the northern Sinai town of al-Arish in January-February 2017 after seven Coptic Christians were reportedly killed by Islamic state affiliated militants. The Grand Imam of al-Azhar strongly condemned the church attacks, while a faction of the Brotherhood also issued a statement of condemnation.

    In response to the Palm Sunday bombings, Sisi issued a Presidential Decree on 9 April 2017 declaring a nation-wide state of emergency, the first under the 2014 Constitution. The decree was passed on unanimously by Parliament on 11 April…

19. The Tribunal is of the view that Mr Henin would be at risk of physical harm if he were returned to Egypt. The Tribunal acknowledges that the RRT refused his application for a protection visa in 2013 and that the Federal Court found no error in that decision in 2015. However, as the information outlined above indicates, the situation for Coptic Christians in Egypt has somewhat deteriorated since then. The Tribunal finds that international non-refoulement obligations arise in this matter and that this consideration weighs in favour of not refusing Mr Henin’s application for a visa under s 501(1) of the Act.

    Impact on family members

20. Paragraph 12.2 of the Direction provides that the Tribunal must have regard to the:

    (1)Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely;

1. Although Mr Henin has resided in Australia for a relatively short time he has a number of family members in Australia. On the evidence before the Tribunal, those immediate family members are:

   ·Mr Henin’s biological daughter;

   ·Mr Henin’s sister, Ms Lisa Henin;

   ·Mr Henin’s uncle, Mr Medhat Botros;

   ·Mr Henin’s cousin, Mr David Botros;

   ·Mr Henin’s maternal Aunt, Ms Mary Salib; and

   ·Mr Henin’s maternal grandmother, who currently resides with Mr Medhat Botros.

2. Mr Henin’s mother and younger siblings are currently in Turkey and his only remaining relative in Egypt is his elderly father who is a nursing home.

3. The Tribunal has no statements before it from Ms Lisa Henin or Mr Henin’s maternal grandmother outlining how Mr Henin’s removal from Australia would impact them. It would be inappropriate to hypothesise how his removal would impact these individuals in the absence of any statements from those individuals, particularly where Mr Henin’s statement also does not address the impact refusal of his visa application would have on them.

4. The Tribunal does have statements from Mr David Botros, Mr Medhat Botros and Ms Mary Salib. All three relatives state that they have a close relationship with Mr Henin. Although their statements do not specifically outline the impact that refusal of Mr Henin’s visa would have, it is clear from the strength of their relationships with Mr Henin that there would be a considerable emotional impact if his visa application were to be refused. As outlined earlier in these reasons for decision, there will also be a considerable emotional impact on Mr Henin’s biological daughter if his visa application is refused.

5. Having regard to all of the evidence, the Tribunal finds that this consideration weighs in favour of not refusing his application for a visa under s 501(1) of the Act.

   CONCLUSION

6. Overall the Tribunal finds that having regard to all of the primary and other relevant considerations required by the Direction to be taken into consideration by the Tribunal, the correct and preferable decision is not to refuse the applicant’s application for a Partner (Migrant) (Class BC) Visa under s 501(1) of the Act. Despite the seriousness of his conduct, Mr Henin does not present a risk of reoffending and accordingly the protection of the Australian community consideration weighs slightly in favour of not refusing his visa application. Mr Henin has a young child in Australia and the Tribunal is of the view that it is in the child’s best interests for Mr Henin to remain in Australia. This consideration weighs strongly in favour of not refusing the visa application. With regard to the expectations of the Australian community, the Tribunal has found that, having regard to his low risk of reoffending, the impact refusal would have on Mr Henin’s daughter, the risk of harm to Mr Henin if he were returned to Egypt and the impact refusal will have on Mr Henin’s family in Australia, the Australian community would afford Mr Henin one final chance. Accordingly, the consideration weighs slightly in favour of not refusing the application for a visa. The Tribunal has also had regard to the impact the refusal of Mr Henin’s application will have on Mr Henin’s family and to Mr Henin’s safety if he were returned to Egypt – finding that both of these matters weigh in favour of not refusing the application for a visa.

7. The decision under review is set aside and in substitution the Tribunal decides that the applicant should not be refused a Partner (Migrant) (Class BC) Visa under s 501(1) of the Migration Act 1958 (Cth).

I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke, Member

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

Associate

Dated: 6 November 2017

Dates of hearing:	24 & 26 October 2017
Counsel for the Applicant:	Mr Guy Gilbert
Advocate for the Applicant:	Mr Nazim El-Bardouh
Solicitors for the Applicant:	Bardo Lawyers
Advocate for the Respondent:	Mr Damien Clarke
Solicitors for the Respondent:	Clayton Utz