Khalil and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)
[2022] AATA 3563
•26 October 2022
Khalil and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 3563 (26 October 2022)
Division:GENERAL DIVISION
File Number: 2017/7267
Re:Mohamed Khalil
APPLICANT
AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member Theodore Tavoularis
Senior Member A. Nikolic AM CSCDate:26 October 2022
Place:Brisbane
The Tribunal affirms the reviewable decision.
......................[sgd]..................................................
Senior Member T. Tavoularis
Senior Member A. Nikolic AM CSCCATCHWORDS
MIGRATION– visa refusal – citizen of Egypt – Partner (Temporary) (Class UK) visa – criminal offending – substantial criminal record – failure to pass good character test – discretion to refuse visa – Direction No. 90 applied – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)Migration Regulations 1994 (Cth)
CASES
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Bushell v Repatriation Commission (1992) 175 CLR 408
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
CKL21 v Minister for Home Affairs [2022] FCAFC 70
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
FYBR v Minister for Home Affairs and Anor [2020] HCATrans 56
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Harrison and Minister for Immigration and Citizenship, Re (2009) 106 ALD 666
Hughes v The Queen (2017) 263 CLR 338
HVLC v Minister for Home Affairs [2019] FCA 616
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Khalil v Minister for Immigration and Border Protection [2018] AATA 311
Khalil v Minister for Home Affairs [2018] FCA 1712
Khalil v Minister for Home Affairs [2019] FCAFC 151; 271 FCR 326
Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4592
Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1134
Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 26
Le and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3130
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120
Matthews v Minister for Home Affairs [2020] FCAFC 146
Maxwell v R (1996) 184 CLR 501
Minister for Immigration and Ethic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Murphy v Minister for Home Affairs [2018] FCA 1924
PQSM v Minister for Home Affairs [2019] FCA 1540
Say v Administrative Appeals Tribunal [2020] FCA 1489
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545Zoia v Commonwealth Ombudsman Department [2007] FCAFC 143
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Australian Criminal Intelligence Commission, Illicit Drug Data Report 2018-19 (September 2020) < Report%202018-19.pdf>
REASONS FOR DECISION
Senior Member T. Tavoularis
Senior Member A. Nikolic AM CSC26 October 2022
INTRODUCTION
The Applicant, Mr Mohamed Khalil, seeks review of a decision to refuse his application for a Partner (Temporary) (Class UK) visa on character grounds under s 501(1) of the Migration Act 1958 (Cth) (the Act).
This matter has an extensive history and is being considered by the Tribunal for a third time. On two previous occasions, Deputy Presidents of this Tribunal affirmed the reviewable decision.[1] Single judges of the Federal Court of Australia have dismissed appeals on both occasions.[2] Upon review by the Full Court of the Australia Federal Court (“FCAFC”), however, both decisions were set aside.[3] The most recent of these gives rise to the current proceeding.
[1] Khalil v Minister for Immigration and Border Protection [2018] AATA 311; Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4592.
[2] Khalil v Minister for Home Affairs [2018] FCA 1712 (Colvin J); Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1134 (Murphy J).
[3] Khalil v Minister for Home Affairs [2019] FCAFC 151; 271 FCR 326 (Logan, Steward, Jackson JJ); Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 26 (Katzmann, Banks-Smith and Rofe JJ).
The hearing was held on 11 and 12 July 2022. The Applicant appeared by video-link and was assisted by an interpreter in the Arabic language. He was represented by Mr Overend of counsel instructed by AUM Legal. The Respondent was represented by Ms Francois of counsel instructed by Sparke Helmore Lawyers. The hearing was adjourned on 12 July 2022 to enable the Applicant to provide further documents requested by the Tribunal, and for the parties to make written submissions. Several requests for extensions of time followed, including because of the illness of a legal representative.
For the following reasons, the Tribunal affirms the reviewable decision.
BACKGROUND
The Applicant is a 34-year-old citizen of Egypt.[4] He was educated to secondary school level and claims to have studied law for two years.[5] His parents, two siblings, a grandmother and other family members live in Egypt.[6] He refers to other relatives in Canada and France.[7]
[4] Exhibit R1, 55-57; 75 [Q20]; 161.
[5] Ibid 380 (paragraph 4); 517.
[6] Ibid 166; 516.
[7] Ibid.
The Applicant arrived in Australia on 20 April 2007 as the holder of a Vocational Education and Training Sector (subclass 572) Visa.[8] He was unable to speak English and planned to undertake a six-week English preparatory course before doing a ‘business or accounting’ course. He only attended a few sessions of the English course and did not commence business or accounting studies. He instead worked as a cleaner, shopping trolley collector, delivery person, general labourer, taxi driver, and later owned a taxi business.[9] The Applicant has departed Australia once for about a month in 2007.[10]
[8] Ibid 595.
[9] Ibid 142; 168; 380.
[10] Ibid 84; 94; 126 [9]-[15]
Key aspects of the Applicant’s history in Australia follow:
(a)26 February 2008: The Applicant’s Student Visa expired.[11]
[11] Ibid 101 [10].
(b)8 May 2009: The Applicant married an Australian citizen. There were no children from this relationship, which ended in divorce on 22 March 2012.[12]
[12] Ibid 81.
(c)5 August 2009: The Applicant was found guilty in the Perth Magistrates’ Court of driving without authority, for which he was fined $300, and his licence was suspended for three months.[13]
[13] Ibid 114.
(d)25 April 2012: Within a month of his divorce, the Applicant married another Australian citizen,[14] who the Tribunal will refer to as ‘Ms PS’.
[14] Ibid 141.
(e)September 2012: The Applicant and Ms PS had their first child.[15]
[15] Ibid 143.
(f)January 2013: Approximately eight months after he married Ms PS, the Applicant commenced a relationship with a mistress,[16] who was his co-offender in a 2014 drug enterprise.
[16] Exhibit R2, 56 [2]-[16]; [30]; 58 [33]; 59 [10]; 60 [24]-[27].
(g)10 April 2013: The Applicant made a combined application for a Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) Visa sponsored by Ms PS.[17] He declared that he had never been convicted of nor charged with any offence awaiting legal action.[18]
[17] Exhibit R1, 88.
[18] Ibid 83.
(h)28 November 2013: The Applicant was found guilty of two charges of creating a false belief, for which he received a $750 fine.[19]
[19] Ibid 114.
(i)14 February 2014: The Applicant was arrested after Ms PS told police he punched her in the face multiple times while she held their child, pushed her to the ground, and struck her again.[20] The Applicant and Ms PS separated for a time.[21]
[20] Ibid 329.
[21] Ibid 380.
(j)24 February 2014: The Applicant was found guilty of unlawful assault occasioning bodily harm with circumstances of aggravation.[22] This conviction related to domestic violence against Ms PS. He was ordered by the Court to undertake an Intensive Supervision Order (“ISO”) for six months.
[22] Ibid 641.
(k)28 February 2014: The Applicant and his mistress were stopped by police while driving a vehicle owned by the Applicant, in which 44 deal bags of cannabis with a total weight of approximately 1.2 kilograms were found.[23]
[23] Ibid 324.
(l)2014: The Applicant’s taxi licence was suspended.[24]
[24] Ibid 381.
(m)6 August 2014: The Applicant was convicted of possessing a prohibited drug (cannabis), for which he received a $250 fine. This was unrelated to the police discovery of cannabis on 28 February 2014.
(n)11 August 2014: The Applicant was convicted of possessing a prohibited drug (cannabis), for which he received a $400 fine. This was also unrelated to the police discovery of a larger quantity of cannabis on 28 February 2014.
(o)25 August 2014: The Applicant was found guilty of breaching the February 2014 Intensive Supervision Order (ISO). He was given a suspended imprisonment order for six months and fined $500.
(p)4 November 2014: The Applicant’s combined Partner Residence Visa application was refused by the Respondent on the basis that he and Ms PS were not in a genuine and continuing relationship.[25] The Applicant appealed this decision to another division of this Tribunal.
[25] Ibid 98-99.
(q)January 2015: The Applicant and Ms PS had their second child.[26] The Applicant was taken into immigration detention approximately a fortnight after this child was born. Ms PS subsequently relocated to another state with their two children, where she has since lived with her parents and grandparents.
[26] Ibid 142.
(r)12 February 2015: The Applicant was convicted of possessing a prohibited drug (cannabis), for which he was fined $400. This was unrelated to the police discovery of a larger quantity of cannabis on 28 February 2014.
(s)17 February 2015: The Applicant was taken into immigration detention, where he remained until his sentencing in 2016.[27]
[27] Ibid 453 [35].
(t)March and April 2015: The Applicant made several applications for Bridging Visas that were refused / cancelled.[28]
(u)22 April 2015: The Applicant requested and received consular access with the Egyptian Embassy.[29]
(v)15 January 2016: The Applicant was convicted of possessing prohibited drugs with intent to sell or supply (cannabis), for which he was sentenced to 16 months’ imprisonment. This Court found this offending commenced in 2014.[30]
(w)11 May 2016: The Applicant’s application for review of the refusal of his combined Partner / Residence Visa was successful, with Member Glynis Bartley of the Migration and Refugee Division of this Tribunal remitting the matter to the Respondent for reconsideration, with a direction that the Applicant met the relevant visa criterion.[31]
(x)2 December 2016: The Respondent asked the Applicant to provide more information about his Partner Visa application.[32]
(y)3–17 December 2016: The Applicant’s then solicitor forwarded the Applicant’s police clearance certificate and other documents to the Respondent.[33]
(z)10 August 2017: The Respondent sent the Applicant, through his solicitor, a Notice of Intention to Consider Refusal of his visa application.[34] The Applicant responded to this Notice between 17 and 30 August 2017.
(aa)26 February 2017: At the conclusion of his prison sentence, the Applicant was taken into immigration detention, where he has since remained.[35]
(bb)4 December 2017: The Respondent advised the Applicant that his visa application was refused.[36]
(cc)29 August 2018: Ms PS’ application for divorce from the Applicant was granted by the Federal Circuit Court.
[28] Ibid 108-113.
[29] Ibid 522-523.
[30] Ibid 369.
[31] Ibid 100-106.
[32] Ibid 22-31.
[33] Ibid 32-43.
[34] Ibid 49-52.
[35] Ibid 464.
[36] Ibid 59-61.
LEGISLATIVE FRAMEWORK
Taken together, s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and s 500(1)(b) of the Act are the sources of the Tribunal’s jurisdiction to review visa refusal decisions under s 501(1) of the Act.
Section 501(1) of the Act confers a discretionary power on the Minister to refuse to grant a visa to a person if the person does not satisfy the Minister that they pass the ‘character test’ as defined in s 501(6) of the Act:
(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)); or …
Section 501(7) of the Act sets out six circumstances in which a person is taken to have a substantial criminal record, including if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
If an applicant fails the character test, the Tribunal must make a subsequent determination whether to exercise the discretion under s 501(1) of the Act to refuse the visa.[37] Guidance in exercising the discretion is found in Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the Direction).
[37] PQSM v Minister for Home Affairs [2019] FCA 1540, [22].
The Direction
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. Except for the Minister acting personally, the Direction must be applied by decision makers under the Act.[38] On 8 March 2021, the Minister signed Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction). The Direction commenced on 15 April 2021 and revoked the previous Direction 79 on the same date.[39] The Tribunal finds it is bound to apply the Direction in these reasons, based on the material currently before it.[40]
[38] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).
[39] Direction, cls 2-3.
[40] Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ).
Direction 90 contains mandatory and aspirational considerations guiding the exercise of statutory power.[41] Clause 5.1 of the Direction sets out several objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens’. Clause 5.1(2) relevantly states:
…Where the discretion to refuse to grant…a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
[41] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, [45].
The Direction cites the following principles at cl 5.2 as relevant to the decision-maker’s assessment of whether the discretion to refuse a non-citizen’s visa should be exercised:
(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) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens 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 by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Clause 6 of the Direction provides that a decision-maker must take into account the considerations identified in cls 8 and 9 of the Direction, where relevant to the decision. In the event a person does not pass the character test, the following primary considerations (at cl 8 of the Direction) must be applied to the specific circumstances of their case:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the best interests of minor children in Australia;
(d)expectations of the Australian community.
Clause 9(1) of the Direction requires that other considerations must be taken into account where relevant. These include but are not limited to:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims;
(d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia;
(ii)impact on Australian business interests.
Clause 7(1) of the Direction states that, in applying the primary and other considerations, ‘information and evidence from independent and authoritative sources should be given appropriate weight’.
Clause 7(2) of the Direction provides that primary considerations should generally be given greater weight than the other considerations. However, as held in Suleiman[42] regarding a previous equivalent direction:
…Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[42] Suleimanv Minister for Immigration and Border Protection (2018) 74 AAR 545, [23] (Colman J).
In Jagroop,[43] the Court held that:
[57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
…
[78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
APPLICATIONS
[43] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, [57] and [78].
Adjournment requests
At the commencement of the hearing the Respondent requested an adjournment to enable more thorough consideration of 260 pages of material filed by the Applicant on 6 July 2022 (Applicant’s bundle). This was two full business days prior to the commencement of the hearing and included a new statement from the Applicant, a psychologist’s report, and approximately 200 pages of text messages that the Applicant claimed to have exchanged with Ms PS since 16 January 2021. Ms Francois submitted that the texts were an incomplete record and contradicted the Applicant’s previous evidence about the nature of his relationship with Ms PS. Ms Francois also submitted there was insufficient time for the Respondent to obtain additional information from the medico-legal report author, and it was procedurally unfair for the Respondent to deal with this ‘on the fly’. She said an adjournment would enable the Respondent to seek additional information under summons from the Applicant and psychologist. This included records of communication between the Applicant, Ms PS, and their children since 15 January 2016, records of all payments made by the Applicant to Ms PS since 15 January 2016, records of all documents or other communications sent to or received by the Applicant from the Family Court of Australia, and other information from the expert witness.
Mr Overend opposed an adjournment but conceded that filing of the Applicant’s bundle two business days prior to the hearing was ‘unfortunate’. He said most of this material consisted of text messages and he had only received the psychologist’s report a day or two prior to it being filed. He said Family Court documents may be available but counselled against further delay given the procedural history of this matter and the time the Applicant had spent in detention. Mr Overend said it was unclear if the further information referred to by the Respondent was available or how it would assist the Tribunal. He said the Applicant’s bundle could be explored under cross-examination and submissions made about weight.
After hearing from both parties, the Tribunal declined the adjournment request. There was no suggestion filing of the Applicant’s bundle breached the so-called ‘Two-Day Rule’[44] or the Tribunal’s scheduling orders. In terms of the latter, Directions dated 11 May 2022 enabled the Applicant to file evidence on or before 8 July 2022. It is not unusual in s 501 applications for material like updated statements and medico-legal reports to be filed relatively close to the commencement of a hearing. It was unclear to the Tribunal whether the further material intended to be obtained by the Respondent under summons was available and the extent to which it may be of assistance. The discrepancies referred to by the Respondent between the text messages and Applicant’s past evidence could be explored under cross-examination and, if necessary, leave sought for the provision of additional material at that time. It was also open to parties to make submissions about the relative weight to be afforded. The Tribunal is not bound by the rules of evidence[45] and the procedure of the Tribunal is at the discretion of the Tribunal.[46] Given the prolonged history of this matter, the Tribunal considered it appropriate to proceed without an adjournment.
[44] Sections 500(6H) and (6J) of the Act.
[45] AAT Act, s 33(1)(c).
[46] AAT Act, s 33(1)(a).
As the hearing progressed, several further applications were made by Ms Francois seeking material from the Applicant about his communication with Ms PS, his children, financial transfers made to Ms PS, and the outcome of Family Court proceedings raised by the Applicant during the 2020 Tribunal hearing. The Tribunal subsequently directed the provision of some material and issued directions accordingly. The hearing was adjourned at approximately 5:30pm on 12 July 2022 for this purpose and for the parties to make written submissions, including about the necessity for a resumed hearing or whether the parties could proceed to written closing submissions.
Request to withdraw tendered document
During evidence in chief, Mr Overend asked the Applicant several questions about text messages he had exchanged with Ms PS and sought to tender approximately 214 pages of this material. Ms Francois objected on the basis that the texts represented ‘cherry picking’ of messages supportive of the Applicant’s narrative. Ms Francois said safe inferences could not be drawn from this material about the precise nature of the Applicant’s relationship with Ms PS. The Applicant denied ‘cherry-picking’ messages and in response to questions from Mr Overend stated he had ‘screen shot whatever is there’. The Tribunal observed, however, there were significant gaps in the messages provided of up to several months in duration, which conflicted with the Applicant’s claims of regular, weekly contact with Ms PS. Following an adjournment to seek instructions, Mr Overend conceded the messages were an incomplete record, and said they were filed in that form because Ms PS ‘refused’ to provide a statement or give evidence. He said other messages between the Applicant and Ms PS were of a ‘private’ nature and would not be relied upon. Mr Overend then asked to withdraw his request to tender the texts and said no reliance would be placed on them or on the questions and answers provided during evidence in chief. Ms Francois objected on the basis that the Applicant’s testimony about the messages had already been received.
The Tribunal decided to take the text messages into evidence as a Tribunal exhibit because it was not possible to dismiss consideration of this information in circumstances where it was filed, relied upon during evidence in chief, and tendered. The material is relevant to the proceeding, including because it was relied upon by the Applicant to corroborate the nature of his relationship with Ms PS. The Tribunal also issued Directions on 15 August 2022, requiring the Applicant to provide, amongst other things, a complete record of these texts.
On 25 August 2022 Mr Overend provided written submissions responding to the Tribunal’s directions, which focussed on the best interests of the Applicant’s minor children and issues relating to protection of the Australian community.[47] It was submitted that the Applicant had decided not to comply with the Tribunal’s direction to provide a complete record of the text messages because these were ‘private conversations’ and the Applicant did not have permission from Ms PS to disclose them.[48] Mr Overend also made submissions that the Tribunal should not exercise its discretion to dismiss the proceeding because of the Applicant’s failure to comply.[49] It was contended the Tribunal should instead consider ‘any valid inferences that are drawn from the Applicant’s failure to comply’.[50]
[47] Applicant’s Closing Submissions dated 25 August 2022, 2 [3].
[48] Ibid 8-9 [24]-[25].
[49] Ibid [26].
[50] Citing Zoia v Commonwealth Ombudsman Department [2007] FCAFC 143, [18].
The material filed by the Applicant on 25 August 2022 also included:
(a)Eighteen pages of screen shots from a social networking page, purporting to be contact between the Applicant and one of his children. Some screen shots refer to dates in August, but mostly without a year provided. There are some indications that certain messages originated in 2022, which is an inference drawn from the totality of the screenshots, but no evidence was led to clarify this. Other messages refer generically to contact at certain times of the day, or several hours prior to the message in question, or on a particular day of the week, but without a date provided.
(b)From page 19 of the Applicant’s materials is a series of messages commencing with a typed date of 05/01/2022, which is approximately eight months prior to the hearing. Further typed dates follow on subsequent pages such as ‘09 &10/01/22’, which appear to have been added by the Applicant. There are often significant gaps, which include:
(i)The last message on page 24 is ‘6 FEB’ and the first message on page 25 is ’27 FEB’.
(ii)The last message on page 30 is dated ‘27 MAR’ and the first message on page 31 is ‘30 APR’, which is a missed call from the Applicant to Ms PS. This is followed by further missed calls or video chats until what appears to be a successful video chat on ‘12 JUNE’. This represents an approximately three-month period without evidence of contact. The next successful contact appears to be on page 33 (‘May 14’), which is suggestive of no contact until a year later, or the messages being summarised in the incorrect chronological order. Many of the messages have no time or date evident, or have descriptors like ‘Yesterday’, or are photographs / videos without comment.
(c)From page 78 to 84 of the Applicant’s bundle are court documents comprising:
(i)A court order dated 29 August 2018 approving Ms PS’ application for divorce from the Applicant with effect 30 September 2018.
(ii)Orders of the Perth Magistrates’ Court by consent of the Applicant and Ms PS regarding conditions under which the Applicant was permitted to have contact with his children.
EVIDENCE
Documentary evidence
The following documents were taken into evidence:
(a)Appeal Book lodged by the Respondent numbering 661 pages;[51]
(b)Transcript of the Tribunal hearing on 27-28 October 2020;[52]
(c)Statement from the Applicant dated 25 June 2022;[53]
(d)Report of psychologist Mr Andrew Wong dated 5 July 2022, with accompanying letter of instruction dated 7 June 2022;[54]
(e)Bundle of 255 pages of text messages between the Applicant and Ms PS;[55]
(f)Copies of payment receipts dated between 6 May 2021 to 21 May 2022;[56]
(g)Eight photocopied photographs of two children;[57] and
(h)A bundle of documents numbering 84 pages, filed by the Applicant on 25 August 2022 in response to the Tribunal’s directions.[58]
[51] Exhibit R1.
[52] Exhibit R2.
[53] Exhibit A1.
[54] Exhibit A2.
[55] Exhibit T1.
[56] Exhibit A3.
[57] Exhibit A4.
[58] Exhibit T2.
Applicant’s evidence
The Applicant adopted his statement as true and correct. The Tribunal has also considered his other statements, written materials, and transcripts from an earlier hearing.[59] The Applicant’s oral evidence centred on the interests of his children and a desire to resume a prominent parental role in their lives.
[59] Exhibit R1, 36-43; 117-130; 149-150; 160-209; 320; 424-458; 466-479.
Life in Egypt
The Applicant said after completing high school in Egypt he studied law for two years. He did not accept Ms Francois’ characterisation that he was ‘highly intelligent’, which he said more aptly described those selected for courses like engineering or medicine.
Life in Australia
The Applicant said he spoke no English prior to arriving in Australia. His visa permitted him to undertake a six-week course in English and then vocational studies in business or accounting at a private institution, which he said was ‘similar to a TAFE’. He agreed the intended vocational studies were in English but claimed that in 2007 there was no rule requiring him to demonstrate proficiency in English as a precondition for a student visa. The Applicant said he only attended the English course ‘a few times’ but found it ‘too hard’ and ‘couldn’t understand anything so…did not go back’. He did not commence the vocational course and did not do any subsequent study in Australia until being imprisoned.
When asked why he did not return to Egypt when his study plans were unrealised, the Applicant said he preferred to stay and work here. Ms Francois questioned the genuineness of his study plans in 2007 and proposed that his true purpose in coming to Australia was to work. The Applicant responded: ‘It was because of money and to study, but study here is difficult’. He explained that an uncle came up with the idea of study and work in Australia and his family gave him an ultimatum about continuing his studies in Egypt or Australia. The Applicant could not recall if this is what he told psychologist Mr Wong. Ms Francois put to the Applicant he was making this up rather than conceding his real purpose for coming to Australia, which he denied.
Ms Francois asked the Applicant about how it was he had sufficient English on arrival in Australia to immediately find work. The Applicant said he worked as a trolley collector and had two Arabic work colleagues who translated for him. When asked about his level of English proficiency when obtaining a taxi licence in 2011, the Applicant said he was not required to sit an exam, and only had to provide a police and medical clearance. When asked how he coped interacting with passengers, the Applicant said by this time he had learned sufficient English from his first wife.
The Applicant agreed he did not require the services of an Arabic interpreter when speaking with his lawyer, or psychologist Mr Wong, or when completing his statement dated 26 June 2022. When Ms Francois put to him that he used an interpreter at this hearing to gain an advantage by having more time to listen to questions in cross-examination and frame his responses, the Applicant disagreed, stating legal language made it more difficult for him to understand.
Romantic relationships
The Applicant agreed he had a mistress from January 2013 until June 2014, who was also his co-offender in a cannabis enterprise. He agreed that he commenced this relationship approximately eight months after marrying Ms PS. When asked if Ms PS was aware of the mistress, the Applicant said: ‘She knew it from her friends and when she asked me, I told her.’ He estimated this was in ‘approximately 2014’. The Applicant disagreed this resulted in a fight with Ms PS and claimed he ‘did not know what she felt about it’. Ms Francois put to the Applicant this was not an honest response because he did not want to disclose there was more than one argument with Ms PS as he previously claimed, which the Applicant denied. Ms Francois asked the Applicant about his evidence at the 2020 Tribunal hearing during which he referred to ‘too much problem, problem with my wife’.[60] She put to the Applicant that these problems included the Applicant abusing her and having a mistress, which the Applicant rejected. Ms Francois challenged the Applicant’s recollection on the first hearing day about having a ‘perfect and beautiful’ relationship with Ms PS following their marriage. The Applicant responded: ‘There is no family without any problems, but it wasn’t bad to the extent that I would hate her or fight with her’. The Applicant said news of his mistress did not end the relationship with Ms PS and they ‘continued for some time’. He disagreed with Ms Francois’ proposition that the only reason Ms PS stayed in the relationship was because of two young children and her limited earning potential.
[60] Exhibit R2, 39 [39].
Offending and alleged offending
The Applicant was asked about a statement from his ex-mistress[61] with an accompanying photograph of her with a bruise located on the back of her upper left arm and shoulder.[62] He responded: ‘She could have made that up because when she went to complain about this it was two or three days after’. The Applicant said the claimed assault ‘did not happen…I did not hit her or punch her or come near her’. He said police investigated his mistress’s claims, which did not result in a court case or conviction. When asked about his mistress’s claim that the Applicant attempted to intimidate her into pleading guilty to the drug supply charge, the Applicant said he recalled her saying that but insisted: ‘the judge said to her [he] didn’t believe it’. The Applicant said he could not recall if he conceded at the last Tribunal hearing that his conviction for creating a false belief related to a claim his mistress took $8500 from him. It was put to the Applicant by Ms Francois that he is the one who lies about what others do, including trying to falsely shift blame onto his mistress for the drug charges. The Applicant rejected this.
[61] Exhibit R1, 341-348.
[62] Ibid 349.
The Applicant was referred to a letter he previously wrote to the Respondent stating: ‘my co-offender involved me in the case.’[63] When asked whether he now accepted that statement was false, he replied: ‘Not all of it’. When further challenged, the Applicant agreed he did plan to supply drugs and knew at the time he wrote this letter to the Department in 2016 that blaming his mistress was false. He also agreed that he knew at the first and second Tribunal hearings when making the same claims that they were false. When it was put by Ms Francois that his recent change in position arose from the realisation that he could not ‘keep lying about this’, the Applicant responded: ‘Yes but I am convinced now I have learned and I’m sorry…I just wanted to be close to my children and take care of them.’ When asked by Ms Francois if he thought it was acceptable to lie if there was a higher purpose, the Applicant said he lied at his trial because he only ‘wanted to be in prison for a short time’ and return to his children sooner.
[63] Ibid 36.
The Applicant said he only hit Ms PS once, for which he was convicted. He was asked about the reference in a Statement of Facts, Issues and Contentions (SFIC) prepared by his lawyer, that Ms PS sustained ‘swelling and bruising around [her] right eye, a scratch on her arm, a sore head and torn clothing.’[64] The Applicant agreed he authorised the SFIC and responded: ‘If that’s what happened I accept it happened’. The Applicant said he was not there when these injuries were observed and stated: ‘If this is what the hospital records show, then this is what happened’. In response to further questions, the Applicant accepted that punching his wife to cause such injuries was traumatic for her. When asked if it was also traumatic for his infant son who Ms PS was holding at the time, the Applicant said it ‘could be’ but claimed his son had not subsequently referred to the incident so the Applicant could not say if ‘he remembers it or not’. In response to further questions, the Applicant accepted it would have been traumatic for the child at the time, regretted that the incident occurred, and stated he would ‘make sure it’ll never happen again’.
[64] Applicant’s Statement of Facts, Issues and Contentions dated 10 June 2022, 8-9 [38].
Ms Francois put to the Applicant he is a violent man when intimate partners upset him, which he denied. When asked by Ms Francois about his father’s influence regarding violence against women, the Applicant responded: ‘My father used to do that. But I didn’t learn that. I only hit my ex-partner once’.
Rehabilitation
The Applicant said he is now a ‘changed man’ and ‘better person’. He referred several times to rehabilitative and vocational courses undertaken, claiming he had learned: ‘you should only tell the truth’. When asked what he would do if an intimate partner upset him in future, the Applicant responded: ‘Just walk away if I’m angry. I will not go to the extent that I will be violent. There are many ways to address problems. Talk to them, leave for a day or two…’. Ms Francois asked the Applicant to confirm his evidence that he did not ‘need any more help not to hit domestic partners’, to which the Applicant responded: ‘No I don’t need’.
Risk and recidivism
When asked how the Tribunal can be confident he will not reoffend, the Applicant said the voluntary courses he undertook in custodial settings gave him ‘more knowledge of things’ and he had since ‘worked hard on [him]self to be a better person.’ He said he is now more mature, has not used alcohol or illicit substances since 2015, has been compliant and respectful of others, and is motivated to live a law-abiding life by the interests of his children.
Detention
The Applicant was asked by Mr Overend about the impact of detention. He said it was ‘good in a way to be learning something in the future’. He also referred to negative effects, stating detention was ‘traumatic for [his] health’ and has adversely impacted his family in Egypt. The Applicant was asked by Ms Francois if he accepted that he could have continued his application from Egypt rather than choosing to remain detained for over seven years. He disagreed, stating: ‘This is the least I can do for my children…I don’t want to leave my children behind…I want them to know I stayed in detention for seven and a half years to see them.’ When Ms Francois observed he had not seen his children during this time, who live interstate, and would have the same contact with them by telephone and video calls from Egypt, the Applicant responded:
Do you think if I go back to my country, they’d let me come back? It’s impossible… For seven and a half years I’ve never seen anyone go back and fight their case from Egypt. The only people released are those that fight their case here. They are the only ones released…
Relationship with Ms PS and their children
The Applicant said after he was detained in February 2015, Ms PS and their children moved to another state where she has since lived with her parents and grandparents. He said the grandparents are routinely away due to work, but Ms PS’s father has been a constant presence because he used to care for Ms PS’s mother until she went into a nursing home because of Huntington’s disease. Ms PS’s mother died in 2019. The Applicant has previously referred to Ms PS as also having been diagnosed with Huntington’s Disease, which he said raises implications for future care of their children.[65] Other evidence, however, refers to Ms PS only having tested positive for the gene, rather than actively suffering this condition. The Applicant claimed at the 2020 hearing that if Ms PS developed Huntington’s Disease there was no one else to look after their children.[66] This claim was not further advanced during the current hearing.
[65] Exhibit R1, 117; 320 [6]; 395; 436[43]-437[16]; 450-452; 462[4]; 484; 499-450; 541; 593; 628 [43].
[66] Exhibit R2, 29 [8].
The Applicant said Ms PS divorced him in late 2018 and there was a period during which she declined any communication for about two years. He said this changed in early 2021 and they now ‘talk like normal’ about their children. The Applicant was referred by Mr Overend to text messages where Ms PS refers to him as ‘hon’ and ‘babe’. Reference was also made to frequent requests by Ms PS for the Applicant to send her money, which he said he does to help care for the children. When asked if he trusted she would spend the money for the children, the Applicant responded: ‘most of the time yes.’ He claimed not to mind Ms PS also spending some of these funds on herself.
The Applicant’s evidence about why there was no statement from Ms PS, and why she did not appear as a witness, was difficult to understand. He initially said neither he nor his solicitor asked her to give evidence because ‘she doesn’t like papers or meetings or conferences’. When referred to Mr Overend’s earlier comment that Ms PS refused to participate, the Applicant repeated his earlier answer about her not liking ‘too much paperwork’. When pressed, the Applicant responded: ‘No – no one asked her’. He said she previously signed statements and affidavits because: ‘we were married. She had to fill out the paperwork and do all that, but now we’re not married’. After several questions the Applicant eventually conceded he asked Ms PS to provide a statement for this proceeding ‘maybe a month ago’, but she refused.
When asked if Ms PS had re-partnered, the Applicant said she may have. He referred to her making several references during their telephone calls to a man called [name redacted] who was ‘coming over’, but he ‘did not ask and she did not say’ who this is. He thought this was one reason why Ms PS previously stopped talking to him.
The Applicant was asked about his evidence at the 2020 Tribunal hearing about seeking a Family Court order to get video call access to his children, after Ms PS refused to let him talk with them since 7 September 2019.[67] He said this was the only way he could gain some contact given Ms PS’s unwillingness to communicate. He claimed that his request for access was dismissed by the Family Court because Ms PS refused to engage with the process.[68] When asked if he had any records relating to this Family Court process the Applicant equivocated: ‘I can’t remember – I don’t have it’. When asked if he or his solicitor tried to get this paperwork, the Applicant said: ‘I have no idea’. As discussed earlier, the Applicant subsequently provided documents after the hearing about his divorce from Ms PS and being granted conditional access to his children.
[67] Ibid 17 [6], [23], [38]; 67 [2].
[68] Exhibit R2, 36 [1]-[30]; 47 [19]-[22].
The Applicant was taken to examples where his children communicated with him by text message using Ms PS’s telephone.[69] He said they are currently seven and nine years of age and he often plays games with them during telephone and video calls. This included smartphone applications that use video filters by which they can clothe each other in virtual costumes: ‘When I talk to the kids, we play games like crowns and stuff to keep the kids happy’. The Applicant was referred to eight photocopied photographs of his two children in various domestic and social settings.[70] He said that when he was living with the children, they were constantly by his side and slept in his bed. The older child was three-and-a-half when the Applicant was taken into custody and the youngest was only two weeks old. The Applicant said he used to take the older child to the park, shopping, and on excursions. He claimed to have previously worked for a council from 07:00 am until 3:00 pm, which gave him more time with the children compared to when he was running a taxi business. The Applicant said although the time he physically spent with the younger child was brief, he changed nappies and gave the child bottled milk.
[69] Exhibit T1, 166; 191.
[70] Exhibit A4.
The Applicant was asked about the potential of maintaining a relationship with his children by telephone and video calls if repatriated to Egypt, as has been the case during the past seven years. He said: ‘there is no love by telephone’, which is a poor substitute for ‘loving, feeling, touching…In my culture it says you have to embrace your son. It’s important to be physically close’. The Applicant said he wants to resume a prominent parental role in his children’s lives and to help Ms PS ‘financially, and emotionally’ to raise the children.
Financial issues
The Applicant said he used to have three bank accounts in Australia until his bank closed them in early 2022. He claimed this was because of his inability to produce a current ID. He previously transferred money to Ms PS from this account whenever his family in Egypt sent him funds. The Applicant said the transfers from his family in Egypt were irregular and estimated $1000 to $2000 was provided on each occasion. He said they also provided funds for his legal expenses. The Applicant said these were gifts and not loans. When asked about any superannuation savings, the Applicant said he worked under an Australian Business Number when operating taxis and as a cleaner but was unsure if any superannuation was deposited during his council employment and in other roles. When asked about references in his documentary evidence to substantial debts owed on credit cards, to the Australian Tax office, and a car finance company amounting to approximately $80,000, the Applicant claimed he declared bankruptcy to dispense with these and the bankruptcy period ends in October 2022. The Applicant said he has no other assets in Australia but when his father passes away, he and two siblings will receive an inheritance ‘under Sharia Law’.
The Applicant said since his bank accounts were closed, he relies on a friend in Sydney to transfer money for him. He explained that the current arrangement is for his family in Egypt to make payments to his friend’s family in Egypt, who then transfer this to Australia, which his friend in Sydney disburses in accordance with the Applicant’s instructions. This includes for lawyer’s fees, to Ms PS, and other purposes. The Applicant did not name the friend in Sydney, who he claimed is an Australian citizen. He confirmed that he did not ask this friend for a statement or to give oral evidence.
When asked how much money he sends Ms PS, the Applicant said it was around $100 to $200 each time, but he could not precisely recall. He is unsure if he gave Ms PS any money prior to the first transfer receipt dated 6 May 2021[71] or if the transaction records he provided are complete: ‘That’s all I have but I don’t know if that’s complete’. He said the amounts provided to Ms PS fluctuate depending on what she asks for. He recalled one occasion where he replaced an initial transfer to Ms PS after she told him their eldest child accessed funds from her phone to spend on a gaming site.[72]
[71] Exhibit A3, 219.
[72] Exhibit T1, 40.
Plan if allowed to remain in Australia
If allowed to remain in Australia, the Applicant said he intends relocating to the state where his children currently live and ‘try to work something out with [Ms PS]’. He has not spoken to Ms PS about this yet. He claimed this plan is ‘generally there’ and he will be flexible in negotiating shared care arrangements for the children. In terms of work, the Applicant wants to buy a taxi business again as a sole operator. He said his family in Egypt will finance this. The Applicant said if he was returned to Egypt this would be hard on everyone and he would lose everything he worked for since arriving in Australia.
Relationship with family in Egypt
The Applicant was asked about one text message exchange with Ms PS, in which he stated: ‘I win the court today [and] will be out after the AAT’.[73] A return message from Ms PS states: ‘So u can save money to go home then’, to which the Applicant responds: ‘For sure’. The Applicant explained he intends saving money to visit his family in Egypt, but not to return there permanently. He said his parents are currently in their late 60s and he had not seen them since 2007. He wants to spend time with them before they die.
[73] Exhibit T1, 27-28.
The Applicant said he communicates with his family in Egypt two or three times each week, ‘especially [his] sister and mum’. His sister has children of her own and the Applicant remains engaged with their progress.[74] Sometimes he organises video calls with his children so his family in Egypt can interact with them.
[74] Ibid 30.
Other documentary evidence
The Tribunal has considered letters from Ms PS and her relatives dated 2015.[75] The Tribunal has also considered several letters dated between 2017 and 2018 from a former employer, work colleagues, and friends of the Applicant.[76] Most of these are unsigned and do not have addresses. They variously describe the Applicant as responsible, a hard worker, and family man. Several letters do not refer to the Applicant’s offending or do so in general terms. The authors were not called as witnesses.
Expert evidence
[75] Exhibit R1, 237; 239-242; 484-486.
[76] Ibid 235-6; 238; 480-486.
Dr Patnni’s reports
The Tribunal has considered the report of clinical psychologist Dr Indira Pattni dated 21 September 2020.[77] This is further discussed later in these reasons.
[77] Ibid 547-551.
Mr Wong’s report
The Tribunal has considered the report of psychologist Mr Andrew Wong dated 5 July 2022.[78] Mr Wong undertook a two-hour consultation with the Applicant on 9 June 2022 via videoconference and without the assistance of an interpreter. His report is based on a history taken from the Applicant during a clinical interview, mental health psychometric testing,[79] risk assessment relating to violent offending,[80] general risk assessment,[81] provision of an opinion regarding the Applicant’s recidivism risk, and whether it is in his children’s best interests for the Applicant to resume a parental role. Mr Wong’s opinion states in part:[82]
[78] Exhibit A2.
[79] Applying the Personality Assessment Inventory (PAI) methodology.
[80] Applying the Historical, Clinical Risk Management-20 (HCR-20) methodology.
[81] Applying the Risk-Need-Responsivity Model.
[82] Exhibit A2, 10-12 [44]-[54].
44. Mr Mohammed Khalil is a 34-year-old male of Egyptian ethnic background who is currently appealing the refusal of his visa. He described receiving corporal punishment by both his parents, particularly from his father, which appeared to have normalised violence and aggression. This was evident in his history of engaging in fights throughout his childhood, which resulted 3 suspensions in primary school. He disclosed a normalisation of spousal violence in his community, which would have further reinforced positive beliefs about violence. This would have explained his domestic violence offence in 2014. Pleasingly, he displayed a level of cognitive flexibility, where he appeared to have adapted his beliefs about violence by adulthood.
45. Since coming to Australia, Mr Khalil displayed a poor level of social competence in selecting appropriate peers and social network. He identified that some of his friends were in fact drug users who introduced him to cannabis use. He had a 6-years history of daily cannabis use, which appeared to be a form of self-medication to cope with his stresses whilst living in Australia as a non-citizen, struggling with comprehending the local laws, and having trouble with the English language and culture. He appeared to have minimal prosocial influence outside of work colleagues who did not use drugs, which would have further normalised his cannabis habit. However, he did not indicate problematic use, despite being convicted with possession offences, especially around 2014. This non-problematic use was consistently seen in the lack of elevation on his Drug Problems scale on the PAI.
46. Mr Khalil’s two children appeared to be a significant protective factor for his ongoing cannabis use, especially because he had ceased smoking cannabis after Christmas 2014. His incarceration also led him to realise that his previous associations were not his real friends, which was consistently demonstrated in his elevated Non-Support scale on the PAI.
47. Based on the available information at the time of the assessment, including the clinical interview, behavioural observations, psychometric assessment, and file information, Mr Khalil presented with symptoms consistent with Persistent Depressive Disorder with persistent major depressive episodes, moderate severity F34.1 according to the Diagnostic and Statistical Manual for Mental Disorders–Fifth Edition (DSM-5-TR) (American Psychiatric Association, 2022).
48. In terms of his risk of violent re-offending, based on the HCR-20 results, including psychometric outcome, file review, the clinical interview, and my behavioural observations, Mr Khalil appeared to have a Low risk of re-offending. In terms of his risk of general reoffending, based on the principles set out in Andrew & Bonta (2006), Mr Khalil appeared to have a Low risk of re-offending.
49. It appeared that his offending was driven by his poor social network and the prior normalisation of aggressive behaviours. His risk of re-offending was deemed low because of his insight and learnt strategies from his engagement in individual and group therapeutic programs. This low risk was particularly evidence in his good behaviour whilst incarcerated and in detention, which is especially relevant because incarceration can be a risk factor for further violence due to the general demographics and the higher rates of violence in prison. He also displayed cognitive flexibility in adjusting his beliefs in accordance with Australian values which appeared to be a protective factor for him. Further, he identified that he no longer associated with drug users and appeared to have learnt better social skills in selecting his friends. These factors indicated his amenability to treatment and prosocial influence. This also indicated that his association with prosocial networks appeared to be the strongest protective factor for Mr Khalil.
B. Whether it will be in the best interest of his two children to allow the applicant to carry out the role of the father to these young children?50. Mr Khalil identified a positive and close relationship with both of his children as indicated by his self-reported information, his ex-wife’s statement, and the cards. The children are still under 10 and they have plenty of time for proper attachment with the father. It is possible that the eldest son currently had a stronger attachment with Mr Khalil due to his presence in the first 2 years of his life, compared to the youngest son who had comparatively less physical contact. Nevertheless, they have ongoing and routine video and text messaging contact, which indicated a genuine relationship.
51. According to both Mr Khalil’s self-reported information and [Ms PS’] statement, Mr Khalil appeared to have an important role as a breadwinner of the family, especially because he had supported both his ex-wife’s parents and his own children until his incarceration. Even during his incarceration, Mr Khalil had identified a motivation to continue his role as a financial provider. According to [Ms PS’] statement, they appeared to have been struggling financially since Mr Khalil’s incarceration, which was consistently identified by him in the interview.
52. There was no evidence of abuse or neglect while the children were in Mr Khalil’s care. He appeared to have reliably attended to their needs until his incarceration. He further ceased all cannabis use since his youngest son was born, which demonstrated his motivation for change and to be a good role model for them.
53. Therefore, based on the available evidence, it would be in the best interest of his two children to allow the applicant to carry out the role of the father to these young children.
RECOMMENDATIONS54. Mr Khalil would benefit from the following:
• Being involved in community groups or networks to build prosocial peers.
• Engage with a psychologist for ongoing therapy to manage his chronic depressive
mood and continue to review the skills learnt in his therapeutic group programs.
• Engage a nutritionist to manage his obesity.
During the hearing Mr Wong adopted his report as true and correct. He stated that he was not provided with the entire 661-page appeal book in this matter, but only the extracts referred to in the letter of instruction. Mr Wong said he sent his first draft of the report to the Applicant’s solicitor on 30 June 2022, subsequently spoke with the solicitor, and changed his report after those discussions. No copy of the draft report was provided. Ms Francois submitted that the draft report should be made available, whereas Mr Overend objected to this with concerns ‘around privilege’. The Tribunal ruled that the draft report seemed deliberative in nature and, given Mr Wong’s final report was in evidence, the draft report did not need to be produced.
Mr Wong’s oral evidence is summarised as follows:
(a)Mr Wong has worked with adults and children who are victims of family violence, but the bulk of his practice is forensic crime in hospitals and medico-legal settings. This includes when there are legal issues and when the court orders someone to see a psychologist, including because of family violence. Mr Wong has undertaken study and research in this field and referred to a master’s course in clinical psychology, which included assessing and treating victims and perpetrators of family violence.
(b)Mr Wong agreed that a female victim being punched in the face by an intimate partner, while she held their child, would be traumatic for both the victim and child. He was unable to speculate on long-term impacts, which depended on what occurred after the incident, including behavioural change by the perpetrator. If nothing changed, then this could have lasting effects.
(c)When asked if he was aware the Applicant had a mistress who he was reportedly violent against four months after assaulting Ms PS,[83] Mr Wong said he was not. After being taken to this material in evidence Mr Wong agreed that this material seemed ‘pretty similar’ to the Applicant’s conduct against Ms PS. When asked whether this meant it was ‘pretty unlikely’ the Applicant only assaulted Ms PS once as he claimed, Mr Wong said he could not ‘make that inference’. During re-examination Mr Wong stated if the reported violence against the mistress was untrue, then there was no pattern of violence and the Applicant’s conduct against Ms PS was ‘isolated’. In that event, his risk assessment was unchanged.
[83] Exhibit R1, 336; 341; 349.
(d)When asked by Ms Francois if he agreed the Applicant seemed to have no inhibition when angry, Mr Wong disagreed, saying it was ‘more of an issue of emotional regulation…[being unable to]…control his emotions’. When challenged by Ms Francois that there must be more to it than that given the violence committed against Ms PS, Mr Wong opined this may reflect a ‘level of normalisation of this behaviour’ when the Applicant was younger, while seeing his father hitting his mother, such that it became a ‘learned behaviour’. This made it more likely he would also exhibit this behaviour when triggered in the form of a ‘reactive temper’.
(e)Mr Wong agreed with Ms Francois’ proposition that it seemed unlikely the Applicant was only ever violent once during his marriage to Ms PS, but it was nevertheless dangerous to assume this. He said: ‘there is a correlation it can happen on multiple instances’, but he did not know if this ‘applied to Mr Khalil’.
(f)Mr Wong said there needed to be a ‘lifelong pattern of violence’ to make a more reliable finding about propensity for family violence. He had concluded the Applicant was exposed to family violence as a child, which stopped in adulthood, and then occurred against Ms PS. Mr Wong said his report only dealt with family violence as a one-off incident because that is what the information disclosed, and ‘it’s important to be conservative with evidence’ about family violence.
(g)Mr Wong agreed that the hour-long group sessions attended by the Applicant in custodial settings were insufficient to address ‘normalised behaviour’ and referred to paragraph 54 of his report about other types of rehabilitative support that would be of assistance. He said the Applicant ‘needs ongoing therapy’ and ‘more work needs to be done about the way he views his behaviour’. This may require ‘more specialised psychological treatment and monitoring’ if he was engaging in persistent denial of his offending or unwillingness to accept full responsibility.
(h)Mr Wong agreed that the only evidence of the Applicant being violent as an adult and in Australia was against a romantic partner. He said the risk assessment undertaken during their consultation related to the Applicant’s risk of committing ‘violence in general’ rather than against romantic partners. In that respect his report did not refer to what the Applicant might do if released or in the context of a subsequent intimate relationship.
(i)Mr Wong agreed that the reference at paragraph 41 of his report to the unlikelihood of the Applicant ‘physically’ assaulting another person and causing ‘serious harm’ did not exclude the possibility of a repeat of his past conduct causing serious psychological harm.
(j)Mr Wong was asked about the HCR-20 methodology he applied, agreeing it was not designed to address offending related to drug offenders or suppliers. He agreed the predictive value of the HCR-20 was about one year. When asked about the reference on page 8 of his report to the Applicant’s six-year history of cannabis use not appearing to ‘affect him interpersonally’, Mr Wong said the correlation between cannabis use and violence was not strong, because cannabis is a depressant that does not lead to disinhibited behaviour. He said stimulants were more likely to lead to violence. Mr Wong said if the Applicant did slide back into cannabis use it would ‘definitely show a regression in learning’ but he was ‘not sure it would increase his risk of hitting a spouse’. He also said it was not right to ‘lump together the risk of violent reoffending and drug reoffending’, which were clinically ‘very separate risks’.
(k)Mr Wong said if the Applicant was still failing to accept full responsibility for his drug offending, this would impact his assessment of recidivism risk, but he would still rank the Applicant as ‘low for violent offending’.
(l)When asked about the reference in his report to the Applicant having ‘no relationship difficulties…worth noting,’[84] Mr Wong said having been made aware of the Applicant taking up with a mistress eight months after his marriage to Ms PS, he accepted this ‘would indicate relationship difficulties’.
(m)When asked about his conclusion that the Applicant was a reliable historian,[85] Mr Wong said this was based on the consistency between what the Applicant said, and the documentary information provided by his solicitor. Mr Wong said he had read a letter from the Applicant blaming his co-offender for the possess drugs with intent to supply offence,[86] which was inconsistent with the Court’s finding. Mr Wong said, however, that irrespective of the Applicant’s previous claims, including at the past two Tribunal hearings,[87] he had accepted responsibility for his offending at the time of their consultation. Mr Wong agreed that based on the available history, however, the Applicant was not a consistent historian over time. Mr Wong also accepted the Applicant’s failure to tell him about his mistress, or the approximately two-year period where Ms PS did not talk to him or provide access to their children, ‘reduced his reliability as a witness’.
(n)In terms of the references in Dr Pattni’s report to male influences in the lives of minor children, Mr Wong accepted that the presence of the children’s grandfather is a protective factor because he plays ‘some paternal role’.
(o)Mr Wong was asked about the references in evidence to the Applicant’s daily use of cannabis to help him sleep, and whether any exposure of the children to his cannabis use, given they slept in his bed, was a ‘form of child abuse’. Mr Wong said this would only be the case if the Applicant smoked cannabis in front of the children or ‘had it around them’ but did not think this was the case just from the children getting used to the smell of cannabis after the Applicant used it in a different location.
(p)Mr Wong said he was unable to draw any inference from the unwillingness of Ms PS to give evidence in this proceeding.
[84] Exhibit A2, 8 [42(5)].
[85] Ibid 2 [5].
[86] Exhibit R1, 36.
[87] Ibid, 39; 40; 332; Exhibit R2, 27 [12]; 38 [20].
DOES THE APPLICANT pass the character test?
Failure of the character test arises as a matter of law.[88] Given the Applicant’s criminal convictions on 15 January 2016 and imposition of prison sentences exceeding the threshold statutory period of 12 months, the Tribunal is satisfied he does not pass the character test.[89]
[88] Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63].
[89] Section 501(6)(a) of the Act, read in conjunction with s 501(7)(c).
ISSUE TO BE RESOLVED
The issue to be resolved is whether to exercise the discretion granted by s 501(1) of the Act to refuse the visa, after applying the relevant primary and other considerations in the Direction to the specific circumstances of the Applicant’s case.
Protection of the Australian community from criminal or other serious conduct
Tribunal consideration: Nature and seriousness of the conduct
When sentencing the Applicant for his most serious offending on 15 January 2016, former District Court judge, Birmingham DCJ, stated that the Applicant’s criminal history since arrival in Australia ‘is not [his] friend’.[90] His Honour referred to the Applicant’s conduct as ‘persistent behaviour’ reflecting ‘consistent defiance and disregard to the law in relation to drugs’, which did not entitle him to ‘any leniency for good character’.[91] The Court also observed that the Applicant’s most serious drug offending occurred only four days after he was placed on an intensive supervision order for assaulting his wife, and continued while on bail for this offence.[92]
[90] Exhibit R1, 381.
[91] Ibid.
[92] Ibid.
A summary of the Applicant’s offending between 2009 and 2016 follows:
(a)5 August 2009 / 25 October 2009: The Applicant committed driving offences and told police he did not have an Australian driver’s licence.[93] Police enquiries disclosed, however, he did have one, which was suspended by the Perth Magistrates’ Court three months earlier. In written submissions dated 16 December 2016, the Applicant stated the following about this offence:[94]
[93] Exhibit R1, 334.
[94] Ibid 535.
While I was driving, the police stop me and asked me for the licence. Then, I told them that I have an international licence at home. Then the police after a couple of weeks sent me to the courthouse, Because I did not speak English well, I went to court and pleaded guilty; however I was given a fine and 3 month suspension. By that time I was not aware of suspension because I could not read what was in the paper because English is not my first language.
Sometime later, I was driving; then, the police stop me and told me that my licence was suspended. In that case, I was sent to court, I got a duty lawyer represented me. On that day, I shown the duty lawyer my intentional licence, then the court dismissed the charge because I had an international licence.
However, the police should have cancelled the first record charge on the system because the case was dismissed in court. They never dismissed the first conviction because it was too late for the reason that I pleaded guilty in first place. It was not my fault that the charge was still on my record but the police ignored it and did not deleted or cancel it because I was found not guilty in the second court hearing. My international licence was converting to Australia licence.
(b)28 November 2013: The Applicant was found guilty of two charges of Creating false belief and fined $750. This related to an incident on 13 November 2013 where he made a false claim to police about $8500 being stolen from his home.[95] In written submissions dated 16 December 2016, the Applicant stated:[96]
[95] Ibid 35, 39, 121, 332.
[96] Ibid 535-536.
It was misunderstanding between the police and me because I couldn’t provide the accused details. By that time, I worked as a taxi driver with several taxi drivers as well. I had two taxi cars, One day, my co-taxi driver drove one of my taxi cars. Suddenly, the customers stop the taxi and told the taxi driver to bring the guy who had argued with them. The customers took the keys and ordered the taxi driver to call or bring the other taxi driver whom they believed had attacked them.
On that particular day, I went by myself and took the keys and released the car from them. Shortly, the police came and asked me about the incident related to the assault or fight between the customers and other taxi driver. However, I told the police what I had seen but I didn’t know anything relating to the incident. On that time, the police make the report and gave me some paper work to sign, however I couldn’t read them because English is not my first language. By mistake, I signed what I didn’t even know due to rashness.
Few day or month later, I went to court as witnessed to the incident Also I was charge for provided false information or statement, however, there was no lawyer to present me, Therefore, I pleaded guilty for something I didn’t have any idea of what I was guilty for. All these happened because I was busy working all the time. I accepted to plead guilty to safe time then to come to court over and over again. In my heart I had no intention of committing a crime due to the communication barriers; I became victim of law because I couldn’t read what was in the paper.
(c)February 2014: On 24 February 2014 the Applicant was found guilty of: Unlawfully assault and…bodily harm with circumstances of aggravation. This was a family violence offence and is later discussed under that primary consideration. It is noteworthy he was intercepted by police on 28 February 2014, four days after his conviction for a family violence offence and the issue of an ISO. He was in a vehicle containing his female co-accused, with whom he was having an affair at the time. The Court referred to this affair as putting ‘at risk the relationship with [Ms PS]’.[97] Cannabis was discovered in the vehicle in 44 bags collectively weighing 1.2 kilograms. Digital scales were also discovered. The Applicant initially disputed the extent of his involvement by denying any intention to supply the cannabis to others. After a contested hearing, however, he was found to have engaged ‘in the commercial sale of cannabis’.[98] The Court noted from telephone messages that his co-accused sought the Applicant’s ‘approval for the sale of a small quantity of drugs,’ and held that the Applicant ‘was a principal in that joint criminal enterprise and someone to whom [his co-accused] looked for approval and consent’.[99] It is noteworthy that approximately a month after police seized this significant quantity of cannabis from the Applicant’s possession, he was again found in possession of two clipseal bags containing 38 grams of cannabis.[100]
[97] Ibid 380.
[98] Ibid 379.
[99] Ibid.
[100] Ibid 323.
(d)6 and 11 August 2014: The Applicant was found guilty of possession of cannabis, for which he was fined. In written submissions dated 16 December 2016, the Applicant stated:[101]
[101] Ibid 537.
Well, I got charged for the small amount of cannabis. I was fined and it happened because of my stress, depression by that time. But now, I am a change man, however, I will not touch drugs no more.
(e)25 August 2014: The Applicant was found guilty of breaching the Intensive Supervision Order and was sentenced to six months’ imprisonment, which was suspended for six months. He was also fined $500. In written submissions dated 16 December 2016, the Applicant stated:[102]
[102] Ibid 537.
I couldn’t report to supervision order because of work. I drive from Perth to Port Hedland and car broken down on my way. I tried to ring the supervision office but the phone was out of service. As a result, I went to court and the judge understood my position. The judge sentenced to 6 month suspended sentence and fine. The judge also, advised me that I should have not pleaded for the assault charge related to my supervision order. I hope incident like this will never happen again.
(f)12 February 2015: The Applicant was convicted of Possess a Prohibited Drug (Cannabis), for which he was fined $400. This related to an incident where the Applicant was found with two clipseal bags containing approximately 38 grams of cannabis.[103] He made full admissions and stated the cannabis was for his personal use. In written submissions dated 16 December 2016, the Applicant stated:[104]
[103] Ibid 323.
[104] Ibid 537.
I was stopped by police while driving. Then they searched the car and found small amount of cannabis for personal uses. I was charged for possession of an illegal drug and I was fined as a result. When I was outside, I used to smoke a little bit of cannabis for my depression I was in. But in prison, I have leamt consequences of using drugs. Therefore, I will not smoke again and I will make sure incidents like this never happened again.
(g)15 January 2016: The Applicant was convicted of Possession of Prohibited Drugs With Intent to Sell or Supply (Cannabis), for which he was sentenced to 16 months’ imprisonment.[105] This related to him being stopped by police with a co-accused in a car in February 2014, following which deal bags of cannabis weighing approximately 1.2 kilograms were discovered.[106] In written submissions dated 16 December 2016, the Applicant stated:[107]
It happened when a lady friend and I drive to her friend house where she was given a big amount of cannabis. I didn’t even know whether she possessed such an amount. While she was driving, the police stopped us on the road and carried out random search including our identities. Later, the police found a big amount of cannabis in her bag and a digital scale. The lady told me that I should have said to police that I knew she had a small amount of cannabis and was taking the cannabis to her friend in Perth. In fact, I didn't know anything by that time, but because she was my friend, I said to the police what she was demanding.
In that case, we both got charged with possession of cannabis intended to supply. I was given bail for almost 2 years until I went to court, while I was in an immigration detention centre. I found a legal lawyer and he advised me to plead guilty for the possession but not to the supply to the community charge. I went for trial; however, the judge didn’t put into consideration my position, innocent but not a supplier. The judge found me guilty - my co offender received suspended sentence because she is a citizen of Australia. In my case, I was still in an immigration detention centre; therefore, I was sentenced to one year and four months.
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. Anyway, I served my times in prison and I have learnt through my mistakes. I hope something like this never happened again when I get release to freedom. I am not going to smoke cannabis again.
Also, I will never have relationship with drugs users or suppliers because I learnt through the first experience. Furthermore, I had engaged in education whilst in prison. I have learnt Basic English skills, mathematics and computer as well. I do considering myself as successful offender in term of skills and knowledge I have learnt whilst in prison, All these skills and knowledge will help me to find job when I get release to freedom.
However, I do appreciate what I have learnt so far and I would thank the department of corrective service for assisting me in term of basic education.
In conclusion, I should be given another chance because of the skills I have learnt in prison. I am very pleased to hear some good news regarding my visa so that I would be re-united with my children and my wife too.
[105] Ibid 369.
[106] Ibid 324; 371-394
[107] Ibid 538-539.
It was submitted on the Applicant’s behalf that his most recent offending, for which he received a sentence of 16 months’ imprisonment, is not ‘at the upper most end of objective seriousness’, because it is well below the 10-year maximum available.[108] It is further submitted that although the Applicant has three prior charges for possession of cannabis, his latest offending is the only charge relating to a significant quantity of drugs with an intention to sell. It was further submitted that:
Noting that medical distribution of marijuana is now legalised Australia wide, the risk to the community in terms of accessing cannabis seems to spring from the unregulated and medically unsupervised distribution and use of the drug, which may increase the likelihood that the drug is used in a less safe manner and or by a person more susceptible to harm. It is perhaps debateable whether this drug poses any greater risk to the community or individuals when compared to other more accessible and less regulated drugs, such as alcohol. However, there is a risk of harm to the end user and the community, nonetheless. But, determining the exact size of the risk in these circumstances is extremely difficult, if not impossible.
Were Mr Khalil to possess cannabis in the quantity of 1.113 kilograms with an intention to sell or supply, the risk that it would subsequently reach community members and be consumed in an unsafe and unregulated manner that ultimately led to harm to the end user is arguably quite low. There are numerous potentialities that may never eventuate. However, again, determining the precise likelihood that this would happen is almost an impossible task. When coupled with the likelihood that this type of offending would be repeated…it is submitted that the risk is very much an acceptable one.[109]
[108] Applicant’s Statement of Facts, Issues, and Contentions dated 10 June 2022 (ASFIC), 5 [22].
[109] ASFIC, 8 [36]-[37].
Mr Overend submitted the following about other aspects of the Applicant’s offending:
(a)The Applicant’s conviction for assault occasioning bodily harm with circumstances of aggravation against Ms PS, is not at the ‘upper most level’ of seriousness.[110] This includes because it was heard by the Magistrates’ Court and he only received a six-month intensive supervision order and fine. It was also submitted that:
In regard to the offending of assault occasioning harm against [Ms PS], the physical harm caused by Mr Khalil’s assault resulted in swelling and bruising around [Ms PS’] right eye, a scratch on her arm, a sore head and torn clothing…There is limited direct evidence of the psychological harm suffered by [Ms PS] or the child that was present. The Tribunal should be cautious before assuming the level of any psychological harm that occurred, or would likely occur if the behaviour were to be repeated.
Nevertheless, were Mr Khalil to commit this type of offending again, there would no doubt be a risk of at least a level of psychological harm to [Ms PS] and any child present - assuming the child were older than 18 months and able to comprehend and remember what had occurred, unlike the child who was present on 14 February 2014 - along with a risk of minor injuries (to the adult, not the child). Violence of this kind cannot be justified. Yet, the likelihood of this type of this harm occurring, is negligible…and the ultimate harm that demonstrably occurred from this incident was limited.[111]
(b)The Applicant has ‘only 5 other charges over a 6-year period (from 2009 to 2015)’, which ‘were dealt with by way of relatively small financial penalties in the summary jurisdiction,’ reflecting ‘the relatively minor objective seriousness of this offending’.[112]
(c)The Applicant’s possession of small amounts of cannabis was for personal use.
(d)‘The Tribunal’s assessment of the objective seriousness of Mr Khalil’s offending should reflect and be consistent with the assessment of the criminal courts,’ who ‘are best placed to assess the nature and seriousness of these charges’.
(e)A mitigating feature of the Applicant’s offending is that he ‘pled guilty for all of the charges pressed against him’.[113]
[110] ASFIC, 6 [26].
[111] ASFIC, 8-9 [38]-[39].
[112] ASFIC, 7 [29].
[113] ASFIC, 7 [32].
The Respondent submitted that the Applicant’s assault conviction is serious because the victim is a vulnerable community member. It was also submitted his most recent drug offending is very serious given the 16-month sentence imposed.
Tribunal findings: Nature and seriousness of the conduct
There is no evidence the Applicant has been other than law-abiding while living in Egypt.
The Applicant’s offences in Australia between 2009 and 2013, namely driving without a licence and creating a false belief, were not particularly serious. It is also noteworthy there is a significant gap between the 2009 and 2013 offences. The Applicant was also found with a small bag of cannabis during the execution of a search warrant on 26 November 2013, for which he was issued with a Cannabis Intervention Requirement. This offence is also not particularly serious,[114] although it is noteworthy the Applicant failed to attend the required intervention session.[115] The Tribunal considers that the Applicant’s interactions with the criminal justice system on these occasions between 2009 and 2013, and the relatively minor punishments he received, should have diverted him from further offending but did not.
[114] Exhibit R1, 326.
[115] Ibid.
The Applicant’s conduct became more serious in 2014, when he was convicted of violence against Ms PS, two further drug offences,[116] and breaching conditional liberty orders. This represents a significant escalation of his criminal conduct. His violence against Ms PS, which occurred in a family setting and while she held their child, is viewed very seriously regardless of the sentence imposed.[117]
[116] Ibid 323.
[117] Clause 8.1.1(1)(a)(i)-(iii) of the Direction.
The Tribunal does not accept the Applicant’s submissions about cannabis posing relatively little risk to society. It is instead often a pathway to more serious drug use. Supply of illicit drugs not only harms users but has a broader corrosive effect on the Australian community through the costs and consequences of addiction and its interrelationship with other crimes. It is little to the point the Applicant was not caught selling or supplying drugs to others, given the Court found he intended to do so.
According to the Australian Criminal Intelligence Commission, cannabis is a depressant drug causing short and long-term effects.[118] Member S. Evans of this Tribunal has previously referred to the observations of Judge Bennett in the District Court of New South Wales, which the Tribunal respectfully adopts:
There is the populist view expressed by some that cannabis is a drug of little significance without the risk of much harm. I have been engaged in the practice of law for many years; as a judge for in excess of a decade. In the course of my life as a barrister I appeared in a number of Supreme Court murder trials and related proceedings and it is the fact that cannabis is a harmful drug. It leaves people prone to schizophrenia with a risk of the development of that disease. It opens the pathway to people without necessary self-control into the drug milieu. I have not I do not think ever seen the case where somebody addicted to heroin, cocaine or methylamphetamine did not begin their life as a drug user starting out with the misuse of cannabis, it is a dangerous drug, and those who urge otherwise are misguided.[119]
[118] Australian Criminal Intelligence Commission, Illicit Drug Data Report 2018-19 (September 2020) < Referred to in Le and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3130, [31].
The sentence received by the Applicant for this offending is significantly below the 10-year maximum statutory penalty available.[120] That said, the imposition of a custodial sentence is the harshest penalty available to the courts. A 16-month sentence of imprisonment is substantial, including because a sentence of 12 months or more triggers mandatory visa cancellation under the Act.
[120] Exhibit R1, 377.
There are uncertainties in the evidence about the extent to which the Applicant’s children have a male role model in their lives, particularly given the Applicant’s reference during the hearing that Ms PS may have re-partnered. Again, there is no evidence from Ms PS or other caregivers about this. The evidence discloses some male influences in the children’s lives through Ms PS’s father and grandfather. Mr Wong accepted that the presence of the children’s grandfather is a protective factor that provides the children with access to ‘some paternal role’. There is no evidence that the care arrangements for the children, irrespective of the Applicant’s physical absence from their lives for many years, is in any way deficient.
There is no evidence from Ms PS or other caregivers about whether the Applicant’s intended re-involvement in the children’s lives would be welcomed, or the extent to which she may rely on what appear to be intermittent and relatively minor financial contributions disclosed by the incomplete text messages filed by the Applicant. This is particularly so given the Applicant’s evidence that Ms PS refused to provide a statement or be involved in this proceeding, despite him requesting this. The Tribunal is satisfied her past evidence about the relationship with the Applicant has been overtaken by events. The Tribunal finds aspects of the Applicant’s evidence about his relationship with his children and Ms PS’s reliance on him, including evidence about her genetic predisposition to Huntington’s Disease,[192] the ‘progressive’ nature of the disease,[193] the concomitant effect on her ability to care for the children, and the possibility that his children may in the future be susceptible to the same disease, to be largely uncorroborated and speculative. This is particularly so given there is no evidence that Ms PS has yet been diagnosed and no expert evidence about how this may evolve in the future. The Tribunal rejects the Applicant’s previous evidence that Ms PS has already been diagnosed with the disease.[194] There is also no current evidence from Ms PS or the children’s other caregivers that the Applicant’s support is required because of any symptoms arising from this undiagnosed condition.
[192] Ibid 117; 395; 436 [40].
[193] Ibid 320 [6].
[194] Ibid 437 [5]; 541.
The Applicant said if returned to Egypt, he would find it very difficult to provide financial and moral support for his children.[195] In other evidence, however, he claimed that his family in Egypt regularly provide him with funds and are willing to fund his relocation interstate and to purchase a business if released. This suggests he may still be able to make some contribution to his children or fund their visits if Ms PS is agreeable, including through his own work in Egypt.
[195] Ibid 166.
The Tribunal accepts the general proposition that it is in the best interests of minor children that they have a loving and stable relationship with their parents if possible. Each case, however, turns on its own facts. Aspects of the Applicant’s evidence about the prominent parental role he has played in his children’s lives in recent years is less than persuasive. This is particularly so given the incomplete and unverified nature of the records he relies upon, the absence of recent evidence from Ms PS, and inferences drawn from the Family Court consent orders.
The Tribunal accepts the Applicant retains some contact with his children and may have made some intermittent financial contributions towards their needs. The extent of that contribution, however, and how much Ms PS and the children rely on it, remains unclear in the absence of incomplete records or current evidence from Ms PS and other caregivers.
The text messages the Applicant provided for the current hearing, purportedly to corroborate resumed contact with Ms PS since early 2021, are incomplete at best. These messages focus predominantly on Ms PS’s and the children’s requests for money and convey an impression that their relationship with the Applicant is largely transactional. The Applicant’s evidence is he has not yet spoken with Ms PS about his plan to relocate interstate to be close to the children and resume a prominent parental role in their lives. Ms PS may have re-partnered and it remains unclear what access arrangements may result or whether the Applicant’s plans would be welcomed by Ms PS and her family.
The Tribunal accepts the general proposition that indefinite separation of children from a parent has the potential to cause them harm. Moreover, contact by telephone and video calls is a poor substitute for close physical contact between children and loving parents. On the currently available evidence, however, the Applicant would be unlikely to resume the prominent parental role he aspires to, which remains conditioned by Family Court orders.
The children in this matter are too young to express a view about the impact of visa refusal on their interests, but the Tribunal is prepared to infer that as they mature, they may prefer resumed physical contact with the Applicant in Australia. Given the children’s youth, there is at least the potential for the Applicant to play a meaningful and positive role in their lives, which is conditional on him not assaulting Ms PS again, and remaining law-abiding and abstinent from drugs.
The Tribunal finds on balance that exercising the discretion not to refuse the visa is in the children’s best interests. Limited weight, however, is placed on this consideration.
Expectations of the Australian community
Clause 8.4(1) of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Clause 8.4(2) of the Direction states that visa cancellation, refusal or non-revocation may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. Serious character concerns are raised because of conduct in Australia or elsewhere, of the following kind:
(a) acts of family violence;
(b) …;
...
Clause 8.4(4) of the Direction states that this consideration is ‘about the expectations of the Australian community as a whole’ and directs decision-makers to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in the particular case. This correlates with the reasoning in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (FYBR), albeit under a different Direction. Notwithstanding different pathways in judicial reasoning, the plurality in FYBR held that ‘Expectations of the Australian community’ is a deeming provision with normative principles, ascribing an expectation aligning with that of the Executive Government. It is not for the Tribunal to determine the expectations of the Australian community based on the Applicant’s individual circumstances or evidence about those circumstances.[196] FYBR requires decision-makers to focus on what the Government has deemed the community’s expectations to be, to have due regard to those views, and to generally afford them more weight than other non-primary considerations: cl 7(2) of the Direction.[197]
[196] FYBR (2019) 272 FCR 454, at 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).
[197] Ibid [74] (Charlesworth J). See also Say v Administrative Appeals Tribunal [2020] FCA 1489, [39] (Charlesworth J).
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine.’[198] The Tribunal notes the High Court refused an application for special leave to appeal from the orders in FYBR.[199]
[198] Ibid at 473 [75]–[76] (Charlesworth J).
[199]FYBR v Minister for Home Affairs and Anor [2020] HCATrans 56.
The Applicant’s offending reflects serious breaches of the privilege afforded to non-citizens to enter and remain in Australia. He has not been law-abiding nor respected important institutions like the courts. Some of his criminal conduct, like the family violence offending, raises serious character concerns under cl 8.4(2)(a) of the Direction. He should expect to forfeit the privilege of staying in Australia.
Although the Applicant has lived in Australia for 15 years, approximately half that time has been spent in prison or immigration detention. Notwithstanding the positive features of his case, this primary consideration weighs substantially against exercising the discretion in his favour.
OTHER CONSIDERATIONS
International non-refoulement obligations
It was previously submitted by the Applicant’s solicitor that there were no instructions the Applicant is ‘facing some kind of persecution’ in Egypt.[200] Neither the Applicant nor his counsel in the present hearing advanced submissions that he is owed non-refoulement obligations. The Applicant did express a concern in his documentary materials, however, about the possibility of having to undertake mandatory national service if returned to Egypt.[201] This concern was not advanced during the hearing.
[200] Exhibit R2, 95 [9].
[201] Exhibit R1, 169.
The Tribunal notes from open-source material that conscription in Egypt, as a prerogative of this sovereign state, is enshrined under Article 86 of the Egyptian Constitution.[202] It is regulated by the Law on the Military and National Service (Law 127/1980), which has general application and applies to men between the ages of 18 and 30. Subject to certain exceptions and exemptions, every person subject to conscription, who is fit for National Service, is liable to render full-time service for a period of three years in a branch of the military, the police force, or prison service.[203]
[202] DFAT Country Information Report – Egypt, 17 June 2019, 3.98.
[203] Ibid.
There is no evidence that the Applicant, who is 34 years of age, would be required to fulfil a national service obligation in Egypt if he returned. Even if he was, being subjected to a law of general application does not constitute persecution or serious harm within the meaning of the Act. There is nothing in his speculative and uncorroborated claim about potential military service that enlivens non-refoulement obligations. The Tribunal finds this consideration is not relevant and affords it neutral weight.
Extent of impediments if removed
The Applicant is a relatively young man and speaks fluent Arabic and English. There is no dispute the country of return in the event of repatriation is Egypt, where the Applicant claims to have undertaken all his education, including law studies for two years.[204] He made no claims about language or cultural impediments.
[204] Exhibit R1, 380; Exhibit A2, 3 [12].
The Applicant contends he has spent ‘almost the entirety’ of his life living in Australia, which is not accepted. He arrived in Australia as an adult and has lived here for approximately 15 years. Much of this has been spent under some form of conditional liberty, or in custodial settings. Most of his family live in Egypt and he enjoys positive relationships with them,[205] as evidenced by their continuing financial and emotional support.
[205] Exhibit A2, 3 [9].
In his Personal Circumstances Form dated 2017, the Applicant stated he has no diagnosed conditions and was receiving no treatment or medications.[206] The Tribunal has also considered medical records dated between 2015 and 2017 from custodial settings.[207] At the hearing, the Applicant said he is generally in good health and not impeded from resuming work. The Tribunal notes Mr Wong’s reference, however, to the Applicant having a chronic depressive mood with major depressive episodes. There is at least the potential for this to deteriorate if he was removed, although this is somewhat speculative. There is no evidence he would be unable to access medical care in Egypt for any current or emergent condition.
[206] Exhibit R1, 169.
[207] Ibid 211-227; 243-319.
The Tribunal accepts that after 15 years living in Australia and an extended period of imprisonment and immigration detention, the Applicant is likely to experience a period of re-adaptation in resuming his life in Egypt. He may have some assets to draw upon given he has undertaken work in Australia for a council and in other roles, which may have attracted compulsory superannuation payments. When asked about this during the hearing, the Applicant said he was unaware of any superannuation savings. There is no evidence he could not rely on his family’s continuing support if repatriated to Egypt, or that he would not be entitled to the same benefits available to other Egyptian citizens if he required this.
The Tribunal does not accept the Applicant’s evidence that his repatriation to Egypt will prevent him from providing financial, practical, and emotional support to Ms PS and their children, or that they rely on this. There is no current evidence from Ms PS and the divorce and child access documents the Applicant provided after the hearing diminishes the persuasiveness of his claims.
On balance, this consideration carries moderate weight in favour of granting the visa.
Impact on victims
Clause 9.3(1) of the Direction provides that the Tribunal must consider the impact of a refusal decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where this information is available, and the non-citizen has been afforded procedural fairness.
The Federal Court has previously held this consideration ‘requires a particular focus upon the consequences of the exercise of discretion to grant a visa with the result that the applicant will remain in Australia,’ where that information is available.[208] No submissions were advanced during the hearing about the impact of a decision in this matter on victims of the Applicant’s past offending. This consideration is of neutral weight.
[208] HVLC v Minister for Home Affairs [2019] FCA 616 at [13] (Colvin J).
Links to the Australian community
Clause 9.4 of the Direction provides that decision-makers must, reflecting on the principles at cl 5.2, have regard to cl 9.4.1 relating to the ‘Strength, nature and duration of ties to Australia,’ and cl 9.4.2 relating to ‘Impact on Australian business interests.’ Notwithstanding the evidence about the Applicant’s employment in Australia as a taxi driver and in other roles, there is no evidence a decision in this matter risks compromising the delivery of a major project or an important service. It follows that the presumption in the Direction is not displaced and cl 9.4.2 of the Direction is of neutral weight.
Strength, nature, and duration of ties
The Applicant’s closest ties appear predominantly to his children, which were earlier discussed. There is a paucity of recent evidence from others who may fall within the meaning of the Direction. The Applicant referred during the hearing to a friend in Sydney who he claimed is an Australian citizen and handles his financial transactions with family in Egypt. He also claimed at the 2020 Tribunal hearing he has an ‘uncle’ in Sydney who he has not had contact with for a ‘long time’,[209] but did not refer to this person during the current hearing. Neither of these people were called as witnesses at the current hearing.
[209] Exhibit R2, 60 [39].
The Applicant has spent approximately 15 years in Australia. His offending began in 2009, relatively soon after arriving here. Less weight is consequently given to this consideration. He has spent some time contributing positively to the community through employment as a cleaner, taxi driver, labourer, and council worker,[210] which attracts some weight.
[210] Exhibit R1, 487-496.
The evidence relied upon from Ms PS and her family members and friends is dated and none were called as witnesses. Ms PS’s past claims have been overtaken by events, most notably divorce from the Applicant in 2018 and contested access to their children. She has declined to provide a statement or give oral evidence in the current proceeding despite the Applicant requesting this. There is no evidence that Ms PS would be adversely affected by an adverse decision in this matter, or is reliant on the Applicant for financial, practical, or emotional support as he claims.
The Tribunal is largely left to rely on Applicant’s self-reported claims about the nature and extent of his current relationships in Australia. It is accepted he has developed some ties, but these are quite limited given the extended time he has spent on conditional liberty, or imprisoned, or in immigration detention. The Tribunal is unconvinced, in the absence of corroboration, that any effect on friendships or other associations is more than emotional. On balance, this consideration weighs slightly at best in favour of revocation.
conclusion
The Applicant does not pass the character test. In considering whether the discretion under s 501(1) of the Act to refuse the visa should be exercised, the Tribunal has applied the Direction to the specific circumstances of his case. The Tribunal sees no reason to depart from the guidance in the Direction that greater weight ‘should generally be given’ to the primary considerations than other considerations.
The Applicant’s offending and other conduct reflects serious breaches of the privilege afforded to non-citizens to enter and remain in Australia. He has not been law-abiding nor respected important institutions like the courts. His risk of reoffending is unacceptable, and the Tribunal is unpersuaded he has fully developed insight or is rehabilitated as claimed. His conduct raises serious character concerns, and he should expect to forfeit the privilege of staying in Australia.
The Tribunal accepts the Applicant’s two biological children may be adversely affected by losing close contact with the Applicant. The Tribunal also accepts that after 15 years living in Australia, despite much of it being spent on conditional liberty or in custodial settings, the Applicant is likely to experience a period of re-adaptation if returned to Egypt. He would also have to continue to rely on telephone, video calls, and other remote means of staying in touch with his children or have them visit him in Egypt or a third country if Ms PS agrees.
Having weighed all relevant considerations individually and cumulatively, the Tribunal finds the discretion under s 501(1) of the Act should be exercised to refuse to grant the Applicant’s visa. That is because the primary considerations ‘Protection of the Australian community,’ ‘Family violence committed by the non-citizen’, and ‘Expectations of the Australian community’ considerably outweigh the combined weight to be given to the primary consideration ‘Best interests of minor children in Australia’ and the other countervailing considerations.
DECISION
It follows that the Tribunal affirms the reviewable decision.
I certify that the preceding 145 (one hundred and forty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis and Senior Member A. Nikolic AM CSC
…………[sgd]……………………….
AssociateDated: 26 October 2022
Dates of hearing: 11 and 12 July 2022 Advocate for the Applicant:
Solicitors for the Applicant:
Mr Bryn Overend
AUM Legal
Advocate for the Respondent: Ms Rachel Francois Solicitors for the Respondent: Sparke Helmore Lawyers
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