Khalil and Minister for Immigration and Border Protection (Migration)
[2018] AATA 311
•26 February 2018
Khalil and Minister for Immigration and Border Protection (Migration) [2018] AATA 311 (26 February 2018)
Division:GENERAL DIVISION
File Number: 2017/7267
Re:Mohamed Khalil
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Deputy President S Boyle
Date:26 February 2018
Place:Perth
The decision under review is affirmed.
......[sgd]..............................................................
Deputy President S Boyle
CATCHWORDS
MIGRATION – decision to refuse a visa – failure to pass character test – where applicant has substantial criminal record – primary considerations weigh in favour of refusing visa – risk of reoffending – best interests of minor children – expectations of the Australian community – other considerations – decision under review is affirmed
LEGISLATION
Migration Act 1958 (Cth) – s 499 – s 499(2A) – s 500(1)(b) – s 501(1) – s 501(6) – s 501(6)(c) – s 501(7) – s 501CA
CASES
Ahori and Minister for Immigration and Border Protection [2017] AATA 601
Holland and Minister for Immigration and Border Protection [2017] AATA 1104
KDSP and Minister for Immigration and Border Protection [2017] AATA 2169
Labi and Minister for Immigration and Border Protection [2016] AATA 316Rokobatini v Minister for Immigration and Multicultural Affairs (1990) 90 FCR 583
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – para 6.1 – para 6.2 – para 6.3 – para 7(1) – para 8 – para 11 – para 11.1(1) – para 11.1.1(1) – para 11.1.2 – para 11.2(4) – para 11.3(1) – para 12 – para 12(1)
REASONS FOR DECISION
Deputy President S Boyle
26 February 2018
THE APPLICATION
This is an application for the review of a decision by a delegate of the Respondent (Minister) under s 501(1) of the Migration Act 1958 (Cth) (the Act) to refuse to grant the Applicant a Partner (Temporary)(Class UK) visa (the visa) on the grounds that the Applicant does not pass the character test (G10).
The application for review is made under s 500(1)(b) of the Act which allows applications to be made to this tribunal (the Tribunal) for review of a decision of a delegate of the Minister under s 501 of the Act.
The decision of the delegate to refuse to grant the Applicant the visa (G10) was communicated to the Applicant at the Christmas Island Immigration Detention Centre on 4 December 2017.
The Applicant lodged this application for the review of that decision with the Tribunal on 7 December 2017 (G2).
The Tribunal is satisfied that it has jurisdiction to review the delegate’s decision.
The application was heard by the Tribunal on 20 February 2018. The application had been listed to be heard on 19 February 2018, however, one hour before the scheduled commencement time, the Applicant’s solicitor advised the Tribunal, and the Applicant, that he had another matter in the District Court and would not be representing the Applicant. This was most unfortunate as documentation provided by the Respondent, including the G-documents, had been provided to the Applicant’s lawyer who had not provided copies to the Applicant on Christmas Island. The hearing was adjourned to 20 February 2018 to allow for the documents to be transmitted to the Applicant on Christmas Island. This did occur and at the resumed hearing on 20 February 2018 the Applicant had copies of all of the documents filed in this matter.
The need to adjourn the hearing on 19 February 2018 was also unfortunate because video conference facilities were not available on Christmas Island on the following days as they had been on 19 February 2018.
At the hearing on 20 February 2018 the Applicant appeared by telephone from Christmas Island. He did not have any representation. An accredited Arabic interpreter was in the hearing room in Perth and translated for the Applicant. The Applicant gave evidence and was cross-examined. No other witnesses were called.
The Tribunal had before it the following documents:
(a)the statutory Declaration of the Applicant declared 8 February 2018 (Exhibit A1);
(b)the information sheet (origin unknown) on Huntington’s disease provided by the Applicant;
(c)the G-documents (including G1-G37) of 315 pages (Exhibit (R1));
(d)the Minister’s Statement of Facts, Issues and Contentions dated 29 January 2018 (Minister’s SFIC) (Exhibit R2);
(e)WA Police documents produced under summons (Exhibit R3);
(f)South Hedland Courthouse documents produced under summons (Exhibit R4); and
(g)District Court of Western Australia certificate of final outcome of charge document and transcript of sentencing remarks by Birmingham DCJ on 15 January 2016 (Exhibit R5).
A direction was made by the Tribunal on 8 January 2018 that the Applicant file and serve a statement of facts, issues and contentions and any evidence he intended to rely on by 9 February 2018. No statement of facts, issues and contentions was filed or served by the Applicant and the only evidence received from the Applicant were the document admitted into evidence as Exhibit A1 and the information sheet on Huntington’s disease identified in paragraph 9 above. All of the documents submitted by the Applicant to the Department of Immigration and Border Protection (the Department) in connection with his visa application were included in the G-documents.
ISSUES FOR DETERMINATION
The Applicant’s application for the visa was rejected by the delegate of the Minister on the ground that the delegate was not satisfied that the Applicant passed the character test. The issues for determination by the Tribunal are whether:
(a)the Applicant passes the character test under the Act; and
(b)the Tribunal ought to exercise the discretion under s 501(1) of the Act to refuse to grant the visa.
BACKGROUND
The Applicant is a 29 year old citizen of Egypt who first arrived in Australia on 20 April 2007 as the holder of a Vocational Education and Training Sector visa (subclass 572) (Minister’s SFIC, paragraph 6).
The Applicant departed Australia on 16 June 2007 and arrived again on 7 July 2007 on that visa. The Applicant has been present in Australia since his arrival on 7 July 2007 (Minister’s SFIC, paragraph 7).
The Applicant made an application for the visa on 10 April 2013 (G11).
That application was refused on 4 November 2014 on the grounds that his relationship was not genuine (G13). Following that refusal the Applicant followed appeal avenues and this tribunal set aside the refusal and found that the Applicant was in a genuine relationship. The tribunal remitted the matter to the Department for determination of the remaining considerations (G14).
On 10 August 2017, the Department sent the Applicant a Notice of Intention to Consider Refusal under s 501(1) of the Act in relation to the visa on the basis that the Applicant did not pass the character test (G8).
On 9 November 2017 the delegate of the Minister decided to refuse to grant the Applicant the visa on the basis that the delegate was not satisfied that the Applicant passed the character test. The Applicant was advised of that decision on 4 December 2017 (G10).
History of relevant conduct
On 15 January 2016 the Applicant was convicted in the Perth District Court of possession of prohibited drugs with intent to sell or supply (cannabis) and was sentenced to one year and four months imprisonment (from 27 October 2015).
The detail of all of the Applicant’s convictions are set out below (Court Outcomes History – Criminal and Traffic, Exhibit R3, pages 3-4):
(a)On 5 August 2009, he was found guilty in the Perth Magistrates Court of driving with no authority to drive for which he was fined $300 and his licence was suspended for 3 months (date of offence: 5 April 2009);
(b)On 12 February 2010, the offence of driving with no authority to drive was dismissed by the Perth Magistrates Court (date of offence: 25 October 2009);
(c)On 28 November 2013, he was found guilty in the South Hedland Magistrates Court of creating a false belief and fined $750 and given a spent conviction (date of offence: 13 November 2013);
(d)On 24 February 2014, he was found guilty in the South Hedland Magistrates Court of unlawful assault and thereby did bodily harm with circumstances of aggravation for which he was sentenced to a 6 months intensive supervision order concurrent from 24 February 2014 (date of offence: 14 February 2014);
(e)On 6 August 2014, he was found guilty in the South Hedland Magistrates Court of possessing a prohibited drug (cannabis) for which he was fined $250 (date of offence: 26 November 2013);
(f)On 11 August 2014, he was found guilty in the Perth Magistrates Court of possessing a prohibited drug (cannabis) for which he was fined $400 (date of offence: 21 May 2014);
(g)On 25 August 2014, he was found guilty in the South Hedland Magistrates Court of:
(i)breach of intensive supervision order of 24 February 2014 for which he was sentence to a suspended imprisonment order for 6 months and 1 day suspended for 6 months from 25 August 2014 (concurrent) (offence date: 14 February 2014); and
(ii)person who breaches CRO or community order without reasonable excuse for which he was fined $500 (date of offence: 7 May 2014);
(h)On 12 February 2015 he was found guilty in the Geraldton Magistrates Court of possessing a prohibited drug (cannabis) for which he was fined $400 (date of offence: 1 April 2014); and
(i)On 15 January 2016 he was found guilty of possession of prohibited drugs with intent to sell or supply (cannabis) for which he was sentenced to one year and four months imprisonment from 27 October 2015 (date of offence: 28 February 2014).
LEGISLATIVE FRAMEWORK
Subsection 501(1) of the Act is as follows:
(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.
Note: Character test is defined by subsection (6).
Relevantly, subsection 501(6) of the Act is as follows:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7));…
Relevantly, subsection 501(7) of the Act is as follows:
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or…
Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, provided that the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) of the Act mandates that a person or body must comply with the directions. The Tribunal is such a body and accordingly must comply with any relevant direction when exercising the discretion under s 501(1) of the Act (Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J).
The Minister has made a direction under s 499 of the Act, namely “Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 65). Direction 65 applies to the decision to refuse to grant the visa to the Applicant.
Paragraph 6.1 of Direction 65 sets out the objectives of the Act, with the following relevant to the Applicant’s case:
6.1 Objectives
(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…Where the discretion to refuse to grant or 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.
(3) …
(4) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2) of the Act, such decision-makers must comply with a direction made under section 499.
By way of general guidance, paragraph 6.2 of Direction 65 provides:
6.2 General Guidance
(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.
(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once the decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(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, or whether to revoke a mandatory cancellation under section 501CA. 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, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
The “principles” referred to in the General Guidance (as set out above) to be applied by decision-makers, including the Tribunal, are set out in paragraph 6.3 of Direction 65 as follows:
6.3 Principles
(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 the 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.
Paragraph 7(1) of Direction 65 sets out how the discretion under s 501(1) to refuse the grant of a visa is to be exercised:
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
(b)….
Paragraph 8 of Direction 65 further states:
8. Taking the relevant considerations into account
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. ...
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of the visa.
(4) Primary considerations should generally be given more weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
Part B of Direction 65 (paragraphs 11 and 12) sets out considerations that are relevant when deciding whether to refuse a non-citizen’s visa application.
DOES THE APPLICANT PASS THE CHARACTER TEST?
It is clear that the Applicant does not pass the character test under s 501 of the Act. In January 2016 the Applicant was convicted of possession of a prohibited drug (cannabis) with intent to sell or supply. He was sentenced in the District Court in Perth to a term of imprisonment of one year and four months. Subsection 501(6) of the Act (see paragraph 21 above) provides that a person does not pass the character test if he has a “substantial criminal record” (emphasis added). Subsection 501(7)(c) of the Act (see paragraph 22 above) provides that a person has a substantial criminal record if he has been sentenced to a term of imprisonment of 12 months or more. The Applicant therefore does not pass the character test.
SHOULD THE TRIBUNAL EXERCISE THE DISCRETION UNDER S 501(1) OF THE ACT TO REFUSE TO GRANT THE VISA?
PRIMARY CONSIDERATIONS
Pursuant to paragraph 11(1) of Direction 65, the following are “primary considerations” that the Tribunal must take into account in deciding whether to grant or refuse to grant the visa:
i.protection of the Australian community from criminal or other serious conduct;
ii.the best interests of minor children in Australia; and
iii.expectations of the Australian community.
(i) Protection of the Australian Community
Paragraph 11.1(1) of Direction 65 provides that decision-makers considering the protection of the Australian community 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 and other serious conduct. Decision-makers are also to 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. [Emphasis added]
(a)Nature and seriousness of the conduct
Paragraph 11.1.1(1) of Direction 65 gives a non-exhaustive list of factors to which decision-makers must have regard in considering the nature and seriousness of a person's criminal conduct. Relevantly, these include:
11.1.1 The nature and seriousness of the conduct
(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 of 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), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c)…
(d)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
(e)The sentence imposed by the court 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;
(h)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(i)…
The Applicant’s relevant conduct
The Minister contends (paragraph 26 of the Minister’s SFIC) that the applicant’s assault conviction should be considered serious given that it involved violence against a vulnerable member of the community (domestic violence). The Minister points to the fact that the tribunal has, on many recent occasions, identified the serious nature of domestic violence. For example, in Ahori and Minister for Immigration and Border Protection [2017] AATA 601 (Ahori) the tribunal found that a domestic violence offence was a serious offence, despite, in that case a character reference being provided by the victim of the violence in favour of the applicant. Senior Member Sosso stated that at paragraph [53] and [54]:
Domestic violence is a very serious matter. In no way can violence in a domestic situation by one partner against another be trivialised or downplayed. The implications of such violence on the children, broader family and friends of the parties involved can be serious and long lasting. The fact that the Applicant breached the Protection Order of itself is sufficiently serious to make a prima facie finding of lack of good character. There would need to be compelling evidence and extremely good reasons to negate the presumption that a person convicted of a domestic violence offence is not a person of good character…
The Minister’s SFIC noted that while Ahori was a case dealing with a citizenship application, the same consideration should apply in a visa refusal case and referred the Tribunal to the decision in Holland and Minister for Immigration and Border Protection [2017] AATA 1104 at [39] in which the above passage from Ahori was cited with approval in the context of a visa cancellation consideration under s 501CA of the Act.
The Applicant was cross-examined on two incidents involving violence against women. The more serious was the assault on his wife in which she received not insignificant injuries. It was for this assault that the Applicant was convicted for assault and thereby did bodily harm with circumstances of aggravation. He received an intensive supervision order for 6 months. The statement of material facts produced by the WA Police (Exhibit R3 at page 12) states:
The accused, while driving, used his left clenched fist to punch the victim in the face multiple times. He drove into the car park at 30 Paton Road in South Hedland where the victim stepped out of the vehicle with her child.
The accused stepped out of the vehicle and told the victim to put the child back in the car. The victim place (sic) the child back in the car and she was then pushed to the ground by the accused.
The victim got up to her feet and the accused began to hit her. She ran away screaming for help and Police were contacted by a witness to the incident…
Police attended and conveyed the victim to South Hedland Health Campus for treatment to her injuries.
…
As a result of the assault, the victim suffered swelling and bruising around her right eye, a scratch on her arm, a sore head and torn clothing.
Following that assault a restraining order was issued preventing the Applicant from approaching his wife (see Hearing Transcript of 20 February 2018 at page 14 at 7).
When cross-examined at the hearing about this incident, the Applicant admitted that he had “slapped his wife” but claimed the version of events in the police statement of material facts had been manufactured by the police. His version of events was significantly different and is set out in G5, a document headed “Circumstances Surrounding my Convictions/Criminal Charges”. During the hearing the Applicant confirmed the correctness of the versions of events set out in that document which he said had been written by someone else but dictated by him. In that document the Applicant describes the events of that day as follows:
It was an assault between my wife and me. We had an argument over child safety. She left the child to people I believe as drug users. On that day I advised my wife for being careless, however, she refused to listen to me and keep arguing over it (sic). Suddenly, I became angry and slapped her in the face, unfortunately she obtained bruises which were not life threatening.
…The honourable judge put it into account that the incident wasn’t deliberate but accidental as a result of argument between my wife and me (sic).
Unfortunately this is not the only event or conviction in relation to which the Applicant’s version or understanding is significantly different to the police version of events. According to a Detected Incidents Report (Exhibit R3, page 19), police were called to an incident at the Rendezvous Hotel in Scarborough on 19 June 2014. The report states that:
POI KHALIL and Victim [Ms S] are having an affair and have been in a relationship for the past 18 months, they don’t live together but live in the same town – South Hedland.
Between 10.30 and 11.00 am on Friday 20 June 2014 while both Khalil and [S] have been in the hotel room Khalil has contacted his wife on the phone, according to [S] after he got off the phone his mood changed and he started going ballistic. Khalil started arguing with [S] about money which was owed to [S] by another friend, Khalil wanted to know why the friend had paid the money into [S]’s bank account and not his.
It is alleged by [S] that Khalil has back handed her across the right shoulder and then started repeatedly punching her shoulder causing her to instantly be in pain. Due to the force of the punches [S] has fallen back onto the bed where Khalil has spat on [S]…
A photograph was attached to the Detected Incident Report showing bruising to the victim’s shoulder.
On 21 June 2014 the victim Ms [S] signed a statement about the incident which included the following:
2. I have been in a relationship with my now ex-boyfriend Mohamed Khalil …for the past 18 months.
…
6. During the day on Thursday Mohamed went out all day, he didn’t return to the hotel until the early hours of the morning on Friday.
7. On Friday 20th June 2014 between 10:30am and 11:00am Mohamed had several missed calls on his mobile from his wife, he returned one of the calls and after he got off the phone his attitude just changed.
8. Out of nowhere he was going ballistic.
…
11. He chucked his phone at me telling me to ring my friend and find out why she had transferred the money to my account and not his account.
…
15. He then started repeatedly punching me with a clenched fist; he was punching me in the same place on my shoulder each time.
16. His knuckles were slamming into my shoulder joint.
17. I could instantly feel pain in my shoulder, I was crying, he doesn’t hit lightly.
18. With the force of the hits I fell back onto the bed he then spat at me and said “Kulsamic” which I have been told means “f****** c***” in Arabic.
When cross-examined about this incident the Applicant denied its accuracy and said that the victim [S] had made it up because she was trying to shift blame to him. Ms [S] was the Applicant’s co-accused in the drug possession with intent to sell or supply charge for which the Applicant was convicted in the District Court and sentenced to one year and four months imprisonment.
The Applicant’s conviction for possession of cannabis with intent to sell or supply is obviously the most serious of the Applicant’s convictions and the one that causes the Applicant to fail the character test (see paragraph 31 above). In sentencing the Applicant, Birmingham DCJ made the following comments (Exhibit R5, pages 251-256):
The sell and supply of drugs is a serious offence…
…
The material facts found were that on - and relied on by me for sentence are that at 6.35 pm on 28 February, you, Ms [S], were driving a Toyota sedan that was then owned by the co-accused, Mr Khalil, along Brand Highway south of Dongara. You were stopped by the police regarding the fact that you were then speeding. Mr Khalil was in the front passenger seat of the vehicle.
…
…the vehicle was searched. During the course of that search, a quantity of cannabis leaf material was found,
…
In the boot in a purple and black bag, there was a clear plastic bag containing 165 clipseal bags of cannabis that totalled some 410 grams. These were one-ounce bags, and were seemingly packed as if it was a one-pound pack of cannabis. There was also a white plastic bag which was something akin to a Coles shopping bag, or a white shopping bag, and that had three clipseal bags of cannabis weighing a total of .773 - 77.3 grams. Digital scales were also located in that bag.
In an Ikea bag located on the floor of the back seat of the vehicle, there was a vacuum-sealed bag that had seven clipseal bags containing cannabis weighing some 178 grams, and there was also a white plastic bag containing a further 17 clipseal bags, totalling 433 grams; again, the total weight approximating one pound of cannabis.
In total, there were some 44 separate bags, each containing cannabis head material and weighing 1.113 kilograms, together with a set of electronic scales. It was the evidence of Detective Sergeant Long that the value of the drug at that time was in the order of 17 to 20 thousand dollars. Clearly it had been packed into small bags for sale.
…
Mr Khalil was also found to have some $8,500 cash in his backpack. Whilst I didn't accept his explanation as to the source of the drug, I was not satisfied to the required standard that it was from the sale of drugs. It was certainly a strong suspicion given that the amount seemingly equated to a one-pound - the value of one pound of drugs, but there were other explanations open.
…
It's now suggested in the most recent pre-sentence report that her change of plea followed threats from her co-accused. I'm satisfied beyond reasonable doubt upon the evidence produced before me that each accused were engaged in the commercial sale of cannabis as alleged by the State; that is to say, both Ms [S] and Mr Khalil, and that they were willingly engaged in that operation.
The text messages and the admissions made by each in relation to the - particularly Ms [S], in relation to her knowledge of the drugs and the packaging of those, fortify that conclusion. I found that the text messages that passed between Ms [S] and Mr Khalil related to the dealing in drugs and I'm satisfied beyond reasonable doubt that Mr Khalil was knowingly involved with Ms [S] in the sale and distribution of the cannabis, and that he and Ms [S] had those drugs as part of a joint criminal enterprise to sell the drugs commercially.
I'm satisfied that Mr Khalil was aware of the quantity of the drugs and the fact that Ms [S] in one of the text messages sought his approval for the sale of a small quantity of drugs supports, in my view, the only reasonable inference that he was not only involved intimately in the commercial sale of the drugs, but that he was a principal in that joint criminal enterprise and someone to whom Ms [S] looked for approval and consent.
…
The aggravating features of the offending obviously go to the quantity of the drug located, that it was seemingly engaged in for commercial sale, and that the sales, as evidenced by the text messages, represented sales to others who indicated that they had other purchasers waiting;…
In relation to the likelihood of the Applicant re-offending, Birmingham DCJ commented:
You also undertook courses that were aimed at or directed towards furthering your employment opportunities. All of that shows that you're a person who has remained committed to providing for a family and who has, since the commission of these offences or this offence, been making every endeavour to rehabilitate yourself. It's important to note, however, that, when one has regard to your criminal history, your criminal history is not your friend.
It indicates a persistent behaviour or the previous behaviour that - consistent defiance and disregard to the law in relation to drugs in the context of being in possession of prohibited drugs, namely cannabis, on a number of occasions. And whilst your criminal record - it's not an aggravating feature. You are to be sentenced on the basis of the offence you've committed. It does demonstrate, however, that you're not entitled to any leniency for good character.
Significantly, in February of 2014, you were then convicted of unlawfully assaulting and doing bodily harm in the circumstance of aggravation and placed on an intensive supervision order. This offence occurred four days later after you'd been placed on that order and obviously during the term of the order. Further, the offending of possession of a prohibited drug occurred on 1 April, 7 May, so 1 April and 21 May were all offences that occurred whilst on bail in relation to this offending and also was the subject of either the intensive supervision order or the suspended imprisonment order that was subsequently imposed.
…
Your - it records also that, whilst on the community based programs, your previous response to supervision did display a poor attitude to the supervisory component and that you re-offended during the term. It suggests that you were evasive throughout the term of the order and didn't make yourself available in the way that would allow for clinical intervention. Your counsel, Mr Fitzpatrick, indicated yesterday, however, that those breaches were largely as a result of your employment as a taxi driver and the difficulties associated with fulfilling employment obligations and your commitment to the orders that were imposed.
As noted by Birmingham DCJ, this was not the Applicant’s first drug conviction. On 6 August 2014 he was convicted in the South Hedland Magistrates Court of possession of cannabis relating to an offence committed in November 2013 and on 11 August 2014 he was convicted in the Perth Magistrates Court for possession of cannabis relating to an offence committed in May 2014. On 12 February 2015 he was convicted of possession of cannabis in respect of an offence committed in April 2014 and, as set out above, he was in January 2016 convicted in the District Court of possession of cannabis with intent to sell or supply for which he was imprisoned for one year and four months. There is little room for doubt that at the time that the Applicant was arrested by police in February 2014 he was engaged, with his co-accused, in a commercial drug selling operation.
In support of his application, the Applicant provided the Circumstances Surrounding my Convictions/Criminal Charges document (G5 at pages 31-35). As noted above, the Applicant was cross-examined on the accuracy of his accounts of the circumstances relating to some of the offences set out in that document. In each case the Applicant significantly downplayed, or misrepresented, the circumstances. As noted at paragraph 39 above, the Applicant’s versions are significantly at odds with the police versions or are patently untenable. In each case the Applicant claims that the convictions were errors, that the charges had been fabricated, that the lawyers who represented him were incompetent and, in the case of the District Court conviction for possession of cannabis with intent to sell or supply, in cross-examination claimed that the trial judge had denied him a fair trial. The explanations provided by the Applicant in that document are, in summary:
(a)Driving with no authority (August 2009)
The police should have cancelled this conviction because after he was convicted and his licence suspended, he was again picked up by police for driving without a licence. He says that he was not convicted on the second occasion because he had an international driver’s licence. He claims that he had held his international driver’s licence at the time of this first offence, and therefore asserts that the conviction for this first offence should have been removed from his record. The Tribunal does note that while the first conviction in August 2009 is still shown on his record, there is a “correction” noting that the disqualification had been changed from three months to nil.
(b)Creating False Statement (November 2013)
This conviction, according to the Applicant, “was a misunderstanding between the police and me” (G5 at page 31). The police statement of material facts (Exhibit R3, page 15) indicates that this conviction related to a claim by the Applicant that a former friend had stolen $8,500 from him. The Applicant later asserted that he had found the money, however, when police attended he was unable to show them the money.
(c)Assault Occasioning Bodily Harm (February 2014)
As set out in paragraphs 37-39 above, the Applicant’s account of the assault on his wife is materially different to the police records. He asserted that “the incident wasn’t deliberate but accidental”. That is patently not the case. He was convicted and put on a 6 month supervision order which he breached.
(d)Possession of cannabis (6 August 2014)
No particular explanation was provided, just that police had come to his house to make a search regarding a “fraud by Taxi company” (G5, page 33). He claims that he smoked cannabis because of “depression and anxiety”.
(e)Possession of cannabis (11 August 2014)
Again, no explanation is provided other than he smoked cannabis because he was stressed.
(f)Breaching Supervision Order (25 August 2014)
He claims that he breached the order because he was driving from Perth to Port Hedland and his car broke down, he tried to ring the supervision office “but the phone was out of service”. He also claims that when he appeared in court on this charge, the “judge …advised me that I should have not pleaded for the assault charge related to my supervision order”.
(g)Possession of Cannabis (12 February 2015)
Again, he explains that he smoked cannabis because of his depression.
(h)Possession of Cannabis with Intent to Sell or Supply (January 2016)
His claim is basically that he was driving with “a lady friend” and that he did not know that she had a bag with cannabis in it. There is no mention of the clipseal bags, the scales, the fact that he had $8,500 in his bag and that his bag also contained cannabis or the fact that it was his car. He claims (G3 at page 34) that:
I found a legal [aid] lawyer and he advised me to plead guilty for possession but not to the supply to the community charge (sic). I went for trial; however, the judge didn’t put into consideration my position, innocent but not a supplier (sic). The judge found me guilty – my co offender received suspended sentence because she is a citizen of Australia (sic). In my case, I was still in immigration detention centre; therefore, I was sentenced to one year and four months (sic).
In summary, I was not a supplier; I only smoked cannabis by that time. But because of my co-offender I admitted to say what I was not supposed to say (sic).
What emerges from these discrepancies and his evidence at the hearing, is that the Applicant has failed to accept any responsibility for his actions and is prepared to fabricate and conceal the truth. The repeated theme is that the evidence has been fabricated, that he was given bad legal advice each time he pleaded guilty and that he is not being given a fair go and has been denied justice because he is not an Australian citizen. As an example, he made the following claim at the hearing when being cross-examined on the assault on his wife:
INTERPRETER: The police were targeting me in South Hedland, and they threatened me if I don't leave South Hedland they're going to make all these accusations against me. They told me this literally. They said, "If you don't leave, we're going to turn your life to hell," and this is what happened now, my life is a hell. It's a hell.
(Hearing Transcript of 20 February 2018 at page 12)
There is obviously no evidence to support this claim and the Tribunal rejects it. It is, however, indicative of the attitude of the Applicant and his seeming inability to understand the consequences of his actions and accept liability for them.
In considering the factors identified in paragraph 11.1.1(1) of Direction 65 relating to the nature and seriousness of the Applicant’s offending conduct, the Tribunal finds that:
(a)the Applicant’s offences and conduct involved violence;
(b)the Applicant has behaved violently towards vulnerable members of the community;
(c)the Applicant’s criminal record and his conduct and failure to accept any responsibility for his actions indicate that the Applicant is a person who is not of good character for the purposes of s 501(6)(c) of the Act;
(d)the sentence imposed by the District Court and the Judge’s sentencing comments indicate the seriousness of the offence for which the Applicant was convicted;
(e)the Applicant’s criminal record shows not only frequent offending, but also an escalation of the seriousness of the Applicant’s offending;
(f)the cumulative effect of the Applicant’s offending, and the repeated nature of his offending, particularly in relation to offences involving drugs, indicates that the Applicant has a disregard for the law; and
(g)the Applicant has repeatedly provided false or misleading evidence or statements to the Department in relation to his application for a visa and even in these proceedings. His evidence at the hearing was evasive, largely contrary to the documentary evidence and, in the Tribunal’s view, demonstrated a propensity to fabricate when it suits him.
Taking all of these matters into account, the seriousness and the nature of the Applicant’s offending and conduct weighs heavily against his being granted a visa.
(b) The risk to the Australian community should further offences be committed.
Paragraph 11.1.2 of Direction 65 sets out the principles and factors to which the Tribunal should have regard in assessing whether a non-citizen represents an unacceptable risk of harm to members of the Australian community. It provides:
11.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(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 authoritative sources on the likelihood of the non-citizen re-offending; 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 the decision 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.
The Minister submits in his SFIC that:
31. In considering the risk to the Australian community, the Tribunal must have regard to (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 such conduct in the future.
32. Taking these in turn, firstly, the nature of the harm to victims if the applicant were to reoffend in the future is very serious. The Minister submits that the risk of the applicant reoffending is high, taking into account the fact that:
(a) The applicant was released immediately into detention from criminal custody so he has not been tested in the community as to the results of his rehabilitation and risk of reoffending (see paragraph 11.1.2(3)(b)(ii) of Direction 65). In this regard, the Minister contends that it is significant that there is no evidence that the applicant has taken part in any rehabilitation programs in respect of his drug related offences.
(b) Despite the applicant pleading guilty to his offences, he has displayed limited remorse, continuing to deny that there was any wrongdoing on his part in the offences, repeatedly stating that “it was not my fault”. In particular, the applicant referred to an incident where he assaulted his wife, striking her in the face and causing her to be hospitalised as “a misunderstanding”.
(c) In relation to the conviction for “possession of prohibited dugs [sic] with intent to sell or supply (cannabis)”, the applicant continues to allege that he is not culpable, alleging that he had no knowledge of the drugs and that he only told the police what his accomplice told him to say, despite having plead guilty to the charge.
(d) Given the well documented effects of drug usage in Australian communities, there is a real risk that if the applicant does re-offend there will be significant damage caused to members of the Australian public.
The Tribunal agrees with the Minister’s assessment. The Applicant has shown that he is a person who has little regard for the law and, in the Tribunal’s assessment, has demonstrated that he either simply does not understand the criminality of his conduct, or chooses not to. Far from showing any remorse or giving any indication that he is capable of living in the community in a law abiding way, even at the hearing he was still trying to deny responsibility for his actions and still seeking to blame everyone else for his situation. In these circumstances the Tribunal concludes that there is a real and unacceptable risk that the Applicant will re-offend. As his offending includes violence against women and drug dealing on a “commercial” basis, the risk to the Australian community is unacceptable and weighs heavily against the grant of a visa.
(ii) Best interests of minor children in Australia
Paragraph 11.2(4) of Direction 65 sets out the factors the Tribunal must consider if relevant in considering the best interests of a child. They are:
(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 not 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 contact 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 maintain contact in other ways;
(e) Whether there are any 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.
The Applicant has two children in Australia, one born in 2012 and one born in 2015. They are both Australian citizens. The second of the children was born shortly after the Applicant was taken into detention. They both live with their mother in Queensland. Other than general statements to the effect that the Applicant will not be able to bond with his younger child and is losing bonds with his older child, there is no evidence before the Tribunal of any particular harm that the children will suffer if a visa is not granted.
The Applicant’s wife provided an affidavit (G22) affirmed on 29 July 2015 and a letter “To whom it may concern” dated 3 February 2015 (G25) to the effect that she is supportive of and loves her husband and that the Applicant is a “loving and doting father that his children just adore” (G25 at page 145). There were also two undated letters from the Applicants wife in the G-Documents (pages 236-237) which, by their content appear to have been written shortly after the Applicant was imprisoned at the beginning of 2015. The Applicant’s wife says that she returned to be with her parents in Queensland for support when the Applicant was taken into detention. There does not appear to be any statement from the Applicant’s wife after later than July 2015.
The parenting role for these children has obviously been provided by the mother, and potentially other members of her family in Queensland, in the case of the older child for most of that child’s life and in the case of the younger child for the whole of that child’s life.
The Tribunal notes that the Applicant’s assault on his wife in February 2014 was in front of the older child. Obviously if that conduct were to be repeated it would not be in the children’s best interest. As noted, for the reasons set out above the Tribunal is of the view that there is an unacceptable risk of the Applicant continuing to offend and, given his apparent lack of acceptance of the unacceptability of violence towards women, this may pose a risk to the children. It is unlikely that the Applicant would be a good role model for his children.
The Tribunal also notes that not long before the Applicant was taken into custody the relationship between the Applicant and his current wife was not harmonious. In February 2014 he had assaulted his wife and in June 2014 he had come to Perth and booked into the Rendezvous Hotel with Ms [S], with whom he was dealing drugs, and with whom he had been having a relationship for some 18 months. The Applicant and Ms [S] were arrested in February 2014 in possession of the drugs which led to the conviction for possession with intent to sell or supply. The Applicant had also been married to his first wife from May 2009 to March 2012.
Given these circumstances the Tribunal is not sure that even if the Applicant were granted a visa, that the relationship with his current wife, the mother of the children would necessarily be long-lasting.
The Applicant also claimed that his wife had been diagnosed with Huntington’s disease. On the evidence before the Tribunal, however, that does not appear to be the case. The document that the Applicant points to to establish the diagnosis is a letter from Genetic Health Queensland (G30). That letter does not diagnose the Applicant’s wife as having Huntington’s disease, but rather that she has “an expansion in the HD gene … and therefore [is] at risk of developing HD at some point in [her] lifetime” (G30, page 154).
Notwithstanding these reservations, on the limited information available to the Tribunal, on balance the best interests of the children would be served by the Applicant being granted a visa.
(iii) Expectations of the Australian community
The third consideration listed in Direction 65 is the expectations of the Australian community. In this regard, paragraph 11.3(1) of Direction No. 65 states:
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 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.
In analysing this third and primary consideration, the Tribunal again refers to the stated principles in paragraph 6.3 of Direction 65 and, in particular, the principles that:
(a)the Australian community expects the Australian Government to refuse to grant visas to non-citizens who commit serious crimes (paragraph 6.3(2));
(b)non-citizens who commit serious crimes, including of a violent or sexual nature, should generally expect to be denied the privilege of coming to Australia (paragraph 6.3(3));
(c)in some circumstances if the offence were to be repeated the consequences would be so serious that any risk of similar conduct is unacceptable (paragraph 6.3(4)); and
(d)the length of time a non-citizen has been making a positive contribution to the community (paragraph 6.3(7)).
The Tribunal notes the statement of Deputy President McCabe in Labi and Minister for Immigration and Border Protection [2016] AATA 316 at [60]:
The Direction points out the Australian Community expects non-citizens will obey Australian laws while they remain in this country. But the Direction implicitly acknowledges the community is not completely intolerant of risk: rather, it will have regard to the nature of the character concerns or offences and make a reasonable judgment. In short, one can rely on the Australian community, when fully informed of the facts, to demonstrate some perspective and settle on an outcome that is proportionate.
The Tribunal also notes KDSP and Minister for Immigration and Border Protection [2017] AATA 2169, wherein Senior Member M J McGrowdie stated at [36]:
The Australian community could not be said to be intolerant of any risk. While the Australian community abhors domestic violence, looking at the whole of the circumstances of the applicant's behaviour, I would consider that the Australian community would not assume that the applicant will reoffend, that regard would be had to the fact that the applicant not only has served a jail sentence for his offending, but he has also been held in detention since his release from prison. I conclude that the Australian community would be accepting of providing the applicant with the opportunity to remain in Australia on a limited stay visa, with the applicant knowing that any infringement would likely result in a cancellation of that visa.
The Minister (paragraph 39 of the Minister’s SFIC) submits that:
The Australian community would expect that the applicant, being a visa applicant who has committed serious drug related offences with potentially very serious consequences as well as domestic violence offences, will be refused a visa.
The Tribunal agrees. The nature, seriousness, frequency and upward trend of the Applicant’s offending, particularly the offences relating to drug dealing and violence against women are such that the Australian community would expect that such a person would not be granted a visa. It is not only the Applicant’s serious criminal record that would rightly be of concern to the Australian community, but also his failure to accept or understand that he has done anything wrong indicates that he is unlikely to ameliorate his behaviour.
The Tribunal is of the view that the Australian community would expect that a visa not be granted to the Applicant. This weighs significantly against the granting of the visa.
(iv) Other considerations
Paragraph 12(1) of Direction 65 provides:
12.Other considerations – visa applicants
(1) In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations 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.
While this direction refers to cancelation of visas rather than refusal to grant visas, it is generally taken to also apply to the exercise of the discretion to grant or not to grant a visa. Paragraph 6.2(3) of Direction 65 provides that the relevant factors to be considered in making a decision under s 501 of the Act are identified in Parts A and B and as a result the considerations in paragraph 12(1) are relevant to the discretion to refuse to grant a visa.
No issues or concerns were identified by the Applicant which would give rise to non-refoulement obligations. Based on the evidence before the Tribunal, the only other considerations that may be relevant in the present case is the impact on family members.
Excluding the Applicant’s wife and children, the Applicant’s family is in Egypt. The impact on the Applicant’s children has been dealt with above. The Applicant’s wife had previously provided an affidavit in July 2015 and a letter in February 2015 which she states that she had moved back to Queensland “due to severe financial hardship due to taking away our income provider … and Mohamed still being detained” (G22, page 134). The Tribunal does not have any information about the Applicant’s wife or the children’s circumstances after July 2015. It would appear that up to this point she has not been reliant on his financial support.
There was also a reference by the Applicant to the potential for his wife, who is Australian and a Christian, and his children to be targeted if they were to go to Egypt with him if his visa is refused (G5, page 29). That possibility may exist, however, it would, in the end, be the Applicant’s wife’s choice to go to Egypt with him if he was not granted a visa. While that is a consideration, the Tribunal is of the view that little weight should be given to it when compared to the primary considerations.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Act.
In relation to the primary considerations that the Tribunal must take into account under Direction 65:
(a)the protection of the Australian community weighs heavily in favour of the Applicant not being granted a visa. The nature and seriousness of the Applicant’s conduct and the likelihood of his re-offending pose an unacceptable risk to the Australian community;
(b)the interests of his two children weigh in favour of a grant of a visa, however, only marginally and are far outweighed by the other primary considerations; and
(c)the expectation of the Australian community would be that in the present case the Applicant would not be granted a visa.
DECISION
For the reasons set out above, the decision under review is affirmed.
I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President S Boyle
....[sgd]..............................................................
Administrative Assistant - Legal
Dated: 26 February 2018
Dates of hearing: 19 and 20 February 2018 Applicant: By telephone Representative for the Respondent: Mr Ashley Burgess Solicitors for the Respondent: Sparke Helmore Lawyers
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