Ibrahim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Case [2021] AATA 3637

Ibrahim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3637 (12 October 2021)

Division:GENERAL DIVISION

File Number:          2021/4873

Re:Rami Ibrahim

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member S Burford

Date:12 October 2021

Place:Perth

The Non-Revocation Decision, being the decision of the delegate of the Respondent, dated 20 July 2021, not to revoke the cancellation of the Applicant’s Resident Return (subclass 155) visa is affirmed.

..........[Sgd]..............................................................

Member S Burford

CATCHWORDS

MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record – offences of criminal damage by fire, disorderly behaviour in public and obstructing public officers – Direction No 90 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – best interests of minor children in Australia – expectations of the Australian community – strength, nature and duration of ties to Australia – Applicant is a 39-year-old man who arrived in Australia as a 23-year-old – extent of impediments if returned to Lebanon – Non-Revocation Decision affirmed

LEGISLATION

Criminal Code 1913 (WA) ss 74A(2)(a), 172(2), 444(1)(a)

Migration Act 1958 (Cth) ss 499, 499(1), 499(2A), 500(1)(ba), 500(6B), 500(6H), 500(6J), 500(6L), 501, 501(2), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(3), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)

CASES

Ali v Minister for Home Affairs [2020] FCAFC 109

Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513

BCR16 v Minister for Immigration and Border Protection (2017) 156 ALD 516

BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181

CZCV and Minister for Home Affairs [2019] AATA 91

DOM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 862

FYBR v Minister for Home Affairs (2019) 272 FCR 454

Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378

Hambledon v Minister for Immigration and Border Protection [2018] FCA 7

Holloway v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 945

HZCP v Minister for Immigration and Border Protection [2018] FCA 1803

HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121

Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482

Minister for Home Affairs v Omar (2019) 272 FCR 589

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021 FCAFC 153

Nigro v Secretary to the Department of Justice (2013) 41 VR 359

NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143

Omar v Minister for Home Affairs [2019] FCA 279

Peterson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1256

Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424

Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203

Varley and Minister for Home Affairs [2019] AATA 376

VGJG…

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Details
AGLC
Ibrahim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3637
Case
[2021] AATA 3637
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review by the Applicant of the delegate of the Minister's decision not to revoke the mandatory cancellation of his visa. The Applicant's visa was cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to having a substantial criminal record and serving a full-time custodial sentence for an offence. The Applicant subsequently requested revocation of this cancellation, which was refused by the delegate. The Administrative Appeals Tribunal was required to determine whether the Applicant passed the character test, and if not, whether there was another reason to revoke the visa cancellation decision.

The Tribunal was tasked with considering various factors as outlined in Direction No 90, including the protection of the Australian community, the nature and seriousness of the Applicant's criminal offending, the risk to the community should further offending occur, the best interests of the Applicant's minor children in Australia, community expectations, and the strength, nature, and duration of the Applicant's ties to Australia. The Applicant, who arrived in Australia at age 23 and had resided there for approximately 15 years, had two sons born in Australia. His criminal history included convictions for criminal damage by fire, disorderly behaviour in public, and obstructing public officers, following a family violence matter.

In its reasoning, the Tribunal affirmed the delegate's decision not to revoke the visa cancellation. The Tribunal considered the Applicant's criminal conduct, including the serious offence of criminal damage by fire for which he received a custodial sentence, and the offences of disorderly behaviour and obstruction of police officers. It weighed these against factors such as the Applicant's ties to Australia, including his children, and the potential impediments to his return to Lebanon. Ultimately, the Tribunal concluded that the correct and preferable decision was to affirm the Non-Revocation Decision, finding that the Applicant did not pass the character test and that there was no other compelling reason to revoke the visa cancellation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons below, the Tribunal has decided that the correct and preferable decision is to affirm the Non-Revocation Decision.BACKGROUND As noted above, the Applicant came to Australian in 2006 as the holder of a partner visa. He and his wife married in September 2005 in Lebanon.[13] The couple’s first son was born in 2006 (Mstr M). Their second child, also a son, was born in 2010 (Mstr O). The boys are now 15 and almost 11 years of age.[14][13] R1, G13, pages 106, 107.[14] R1, G13, pages 106-107. The Applicant’s parents, three brothers and a sister, as well as uncles, aunts and cousins remain living in Lebanon.[15] He indicated he is in contact with his family in Lebanon every week.[16] [15] Transcript, 20/9/2021, page 18.[16] Transcript, 20/9/2021, page 18. The Applicant settled in Sydney with his family and was working there as a self-taught barber/hairdresser.[17] He and his family moved to Kalgoorlie in Western Australia in 2015. He had his own business in Kalgoorlie working as barber.[18] [17] R1, G10, page 98.[18] A2. On 18 March 2019, a 72-hour restraining order was issued by police against the Applicant with his wife named as the protected person.[19] On the same day, the Applicant was charged with ‘Disorderly behaviour in public’ (Disorderly Behaviour Offence) and ‘Obstructing police officers’ (Obstruction Offence).[20] Spent convictions were recorded for those offences on 20 May 2019.[21] The charges followed police being called ‘in relation to a family violence matter’. The Applicant ‘began shouting verbal abuse at police and his wife’ and did not comply with police directions to keep his distance from her, resulting in the Disorderly Behaviour Offence charge. He attempted to push past police to get closer to his partner and ‘continued to flick his hands out’ as police attempted to secure him, resulting in the Obstruction Offence charge.[22][19] R2, page 156. [20] Criminal Code (WA), ss 74A(2A) and 172(2); R2, pages 149-150.[21] R2, page 145. [22] R2, page 150. In around September 2019 or October 2019, the Applicant’s wife and sons moved to stay with his wife’s family in Sydney.[23] On 12 November 2019, a termination notice was issued for non-payment of rent with respect to the residence he was renting in Kalgoorlie. He was advised to vacate by 22 November 2019. On 14 November 2019, the property was reported by neighbours to be engulfed in flames. Neighbours reported seeing the Applicant at the rear of the property while it was in flames, before he entered his vehicle and departed. Just after midnight on 15 November 2019, the Applicant was arrested in his vehicle in the carpark of McDonald’s Kalgoorlie. He was later charged with ‘Criminal damage by fire’ in relation to the fire at the rental property.[24][23] Transcript, 20/9/2021, page 23; [24] Amended Statement of Material Facts, R2, page 6-7, incorporated by reference in Sentencing Remarks of MacLean DCJ, 14 September 2020, R1, G5, page 28. As noted above, on 14 September 2020, the Applicant was convicted in the Kalgoorlie Registry of the District Court of Western Australia of the Criminal Damage Offence[25] and was sentenced to a term of two and a half years’ imprisonment.[26] The Applicant was paroled on 6 March 2021.[27][25] Criminal Code (WA), s 444(1)(a).[26] R1, G4, page 24. [27] R2, page 62.

Evidence

Evidence Before The Court

Having considered all the circumstances, the Tribunal decided to allow Mstr M to give brief evidence. In doing so, the Tribunal had regard to the fact that Mstr M was a teenager and was likely to be able to have some comprehension of the nature of the proceedings. The Tribunal further considered Mstr M’s written statement and the fact he had expressed a desire to speak and was available. The Tribunal explained the proceedings and invited Mstr M to tell the Tribunal what he wanted to say if he wished to. The Tribunal asked several questions of Mstr M to establish he understood the nature of the proceedings and the responsibilities of giving evidence prior to him making an affirmation. The Tribunal then asked Mstr M what he wished to tell the Tribunal and after brief evidence, which was consistent with his written evidence, he was excused. The Respondent did not cross-examine Mstr M.Mrs Ibrahim’s evidence As noted earlier, no statement from Mrs Ibrahim was provided to the Tribunal or the Respondent prior to the commencement of the first hearing. At the commencement of that hearing, the Applicant indicated he wished to call Mrs Ibrahim to give evidence in support of the application. The proposal to call Mrs Ibrahim raised issues regarding whether the Tribunal would be constrained by the operation of s 500(6H) of the Migration Act in relation to taking into account her oral evidence. Section 500(6H) and s 500(6J) of the Migration Act provide what is referred to as the ‘two-day rule’. The operation of these provisions was discussed at the hearing in the context of Mrs Ibrahim’s evidence. In dealing with the issue of Mrs Ibrahim’s evidence the Tribunal was mindful of its obligation to afford procedural fairness to the parties and to consider all relevant issues arising on the review including those matters raised in Direction No 90. The two-day rule was considered by the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378, 389-390. The Full Court explained:The scheme for dealing with applications for review under s 500 of the Migration Act has at its heart subss (6H) and (6J). These subsections impose serious restrictions on an applicant for review. The Tribunal is obliged not to have regard to any information presented orally, or to any documents submitted, in support of the applicant’s case unless the Minister has had two business days’ notice of the information or the document before the hearing. The purpose of these drastic provisions is apparent. The Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing. The purpose of the scheme in s 500 is that an applicant for review should not be able to change the nature of his or her case, catching the Minister by surprise, and forcing the Tribunal into granting one or more adjournments to enable the Minister to meet the new case put. If this purpose were not sufficiently apparent from the terms of the legislation, it is apparent from the second reading speech in relation to the bill by which the provisions were introduced. That bill became the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth). The expressed intention of the bill was to prevent the use of the procedure of merits review to prolong the stay in Australia of a person denied a visa by the application of the character test. Crucial to the scheme is the 84 day time limit for the whole process, laid down in subs (6L).

Decision

Reasons for decision

On 20 July 2021, a delegate of the Respondent decided, under s 501CA(4) of the Migration Act, not to revoke the Cancellation Decision (the Non-Revocation Decision).[8] The Applicant signed an acknowledgment of receipt of the Non-Revocation Decision on 20 July 2021.[9][8] R1, G3.[9] R1, G21, page 151. The Applicant lodged his application for review of the Non-Revocation Decision on 22 July 2021.[10] The application was made in accordance with s 500(1)(ba) of the Migration Act, which allows applications to be made to the Tribunal for review of decisions not to revoke a decision to cancel a visa made under s 501CA(4) of the Migration Act. The Tribunal is satisfied that the application was lodged within time, pursuant to s 500(6B) of the Migration Act, and that the Tribunal has jurisdiction to review the Non-Revocation Decision.[10] R1, G2. The issues for determination by the Tribunal are whether it is satisfied that the Applicant passes the character test (as defined by s 501(6) of the Migration Act)[11] and, if not, whether it is satisfied that there is another reason why the decision to cancel the Applicant’s Visa should be revoked.[12][11] Migration Act s 501CA(4)(b)(i). [12] Migration Act s 501CA(4)(b)(ii). For the reasons below, the Tribunal has decided that the correct and preferable decision is to affirm the Non-Revocation Decision.BACKGROUND As noted above, the Applicant came to Australian in 2006 as the holder of a partner visa. He and his wife married in September 2005 in Lebanon.[13] The couple’s first son was born in 2006 (Mstr M). Their second child, also a son, was born in 2010 (Mstr O). The boys are now 15 and almost 11 years of age.[14][13] R1, G13, pages 106, 107.[14] R1, G13, pages 106-107. The Applicant’s parents, three brothers and a sister, as well as uncles, aunts and cousins remain living in Lebanon.[15] He indicated he is in contact with his family in Lebanon every week.[16] [15] Transcript, 20/9/2021, page 18.[16] Transcript, 20/9/2021, page 18. The Applicant settled in Sydney with his family and was working there as a self-taught barber/hairdresser.[17] He and his family moved to Kalgoorlie in Western Australia in 2015. He had his own business in Kalgoorlie working as barber.[18] [17] R1, G10, page 98.[18] A2. On 18 March 2019, a 72-hour restraining order was issued by police against the Applicant with his wife named as the protected person.[19] On the same day, the Applicant was charged with ‘Disorderly behaviour in public’ (Disorderly Behaviour Offence) and ‘Obstructing police officers’ (Obstruction Offence).[20] Spent convictions were recorded for those offences on 20 May 2019.[21] The charges followed police being called ‘in relation to a family violence matter’. The Applicant ‘began shouting verbal abuse at police and his wife’ and did not comply with police directions to keep his distance from her, resulting in the Disorderly Behaviour Offence charge. He attempted to push past police to get closer to his partner and ‘continued to flick his hands out’ as police attempted to secure him, resulting in the Obstruction Offence charge.[22][19] R2, page 156. [20] Criminal Code (WA), ss 74A(2A) and 172(2); R2, pages 149-150.[21] R2, page 145. [22] R2, page 150.

Ratio Decidendi

Legal Principle Established

On 29 October 2020, the Applicant’s Visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the MigrationAct) on the basis that he had a substantial criminal record and was serving a sentence for imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a state or territory (the Cancellation Decision).[6] The Applicant requested revocation of the Cancellation Decision on 18 November 2020.[7] [6] Migration Act ss 501(6)(a) and 501(7)(c); R1, G14, page 108.[7] R1, G7 (unsigned request); G9 (signed request). On 20 July 2021, a delegate of the Respondent decided, under s 501CA(4) of the Migration Act, not to revoke the Cancellation Decision (the Non-Revocation Decision).[8] The Applicant signed an acknowledgment of receipt of the Non-Revocation Decision on 20 July 2021.[9][8] R1, G3.[9] R1, G21, page 151. The Applicant lodged his application for review of the Non-Revocation Decision on 22 July 2021.[10] The application was made in accordance with s 500(1)(ba) of the Migration Act, which allows applications to be made to the Tribunal for review of decisions not to revoke a decision to cancel a visa made under s 501CA(4) of the Migration Act. The Tribunal is satisfied that the application was lodged within time, pursuant to s 500(6B) of the Migration Act, and that the Tribunal has jurisdiction to review the Non-Revocation Decision.[10] R1, G2. The issues for determination by the Tribunal are whether it is satisfied that the Applicant passes the character test (as defined by s 501(6) of the Migration Act)[11] and, if not, whether it is satisfied that there is another reason why the decision to cancel the Applicant’s Visa should be revoked.[12][11] Migration Act s 501CA(4)(b)(i). [12] Migration Act s 501CA(4)(b)(ii). For the reasons below, the Tribunal has decided that the correct and preferable decision is to affirm the Non-Revocation Decision.BACKGROUND As noted above, the Applicant came to Australian in 2006 as the holder of a partner visa. He and his wife married in September 2005 in Lebanon.[13] The couple’s first son was born in 2006 (Mstr M). Their second child, also a son, was born in 2010 (Mstr O). The boys are now 15 and almost 11 years of age.[14][13] R1, G13, pages 106, 107.[14] R1, G13, pages 106-107. The Applicant’s parents, three brothers and a sister, as well as uncles, aunts and cousins remain living in Lebanon.[15] He indicated he is in contact with his family in Lebanon every week.[16] [15] Transcript, 20/9/2021, page 18.[16] Transcript, 20/9/2021, page 18. The Applicant settled in Sydney with his family and was working there as a self-taught barber/hairdresser.[17] He and his family moved to Kalgoorlie in Western Australia in 2015. He had his own business in Kalgoorlie working as barber.[18] [17] R1, G10, page 98.[18] A2. On 18 March 2019, a 72-hour restraining order was issued by police against the Applicant with his wife named as the protected person.[19] On the same day, the Applicant was charged with ‘Disorderly behaviour in public’ (Disorderly Behaviour Offence) and ‘Obstructing police officers’ (Obstruction Offence).[20] Spent convictions were recorded for those offences on 20 May 2019.[21] The charges followed police being called ‘in relation to a family violence matter’. The Applicant ‘began shouting verbal abuse at police and his wife’ and did not comply with police directions to keep his distance from her, resulting in the Disorderly Behaviour Offence charge. He attempted to push past police to get closer to his partner and ‘continued to flick his hands out’ as police attempted to secure him, resulting in the Obstruction Offence charge.[22][19] R2, page 156. [20] Criminal Code (WA), ss 74A(2A) and 172(2); R2, pages 149-150.[21] R2, page 145. [22] R2, page 150.