Konteh and Minister for Immigration and Multicultural Affairs - [2002] AATA 262

DECISION AND REASONS FOR DECISION [2002] AATA 262

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1599

GENERAL ADMINISTRATIVE DIVISION       )
           Re      ISHMAEL KONTEH
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal The Hon. R N J Purvis Q.C., Deputy President

Date18 April 2002
PlaceSydney

Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion provided for by section 501 of the Migration Act 1958 be exercised in the Applicant's favour. The matter is remitted to the Respondent for further consideration.

...........................................
The Hon. R N J Purvis Q.C.
Deputy President
CATCHWORDS
IMMIGRATION – general residence (spouse) visa – character test – past and present criminal conduct – whether discretion should be exercised in favour of Applicant – primary considerations – protection of Australian community – seriousness and nature of criminal conduct – risk of recidivism – general deterrence – best interests of the child – other considerations – hardship to Applicant's wife

Migration Act 1958 – section 501

Ministerial Direction No 21 – Visa Refusal and Cancellation under Section 501 of the Act

REASONS FOR DECISION

The Hon R N J Purvis Q.C., Deputy President
the application

This is an application made by Ishmael Konteh ("the Applicant") seeking review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Respondent") whereby the Applicant was refused a general residence spouse) visa pursuant to section 501 of the Migration Act 1958 ("the Act"). The relevant decision was made on 8 February 2000.
The application was first before the Tribunal on 10 April 2000, a decision being published on 14 April 2000. The Applicant appealed the decision to the Federal Court. The appeal was, seemingly by consent, upheld, the application being referred back to the Tribunal differently constituted to be decided according to law.
In the decision of the Respondent of 8 February 2000 it was inter alia stated (T23, pp72-76):
"…the Police Good Conduct Certificate from the New Scotland Yard, England…shows that Mr Konteh committed crimes of various nature in the country of his previous residence, prior to his last entry into Australia in March 1988 …his convictions were numerous and the terms of imprisonment exceeded 12 months.
…Ms Tenney [the Applicant's wife], the nominator, had suffered from domestic violence on two separate occasions perpetrated by [the Applicant]… which resulted in their separation in November 1999…Information received from NSW Police Department further confirms Mr Konteh's other convictions relating to traffic offences in recent months. Mr Konteh's continuing violence and disrespect to the Australian Laws demonstrates that he is not of good character because of his general conduct in the past and at present.
…
Mr Konteh has demonstrated that he is prepared to continue to disregard the Australian Laws and Regulations with his misconduct…
Protection of the Australian Community
…Mr Konteh demonstrated a continuing pattern of dishonest conduct both in Australia and overseas… Although Mr Konteh seems genuinely remorseful, the frequency of his misconduct overseas compounded with his latter offences since his entry to Australia cannot be ignored.
…Mr Konteh's last offence took place five month before he entered Australia for the second time, in March 1998… the likelihood of Mr Konteh's repeated misconduct can be considered to be quite high…
…refusing to grant him a visa may deter other applicants with prior criminal records from entering the country with the intention of permanent residence...
In his own country, Mr Konteh has committed several crimes such as; criminal damage, theft, assault and deception. All of these types of crimes cannot be expected to be tolerated by any community…
Whilst I consider that a strong bond has been established between Mr Konteh and his son, Joshua, on balance I consider that his past and present conducts outweigh the consideration for best interest of the child…
I have considered all relevant matters including (1) an assessment of the Character Test within the meaning of s501 Migration Act 1958, (2) the Ministers Discretion under s499 of the Act and the applicant's comments, and have decided that:
The non citizen does not pass the character test, has been unable to satisfy me that they [sic] do pass the character test and is refused the grant of visa."

the hearing

At the hearing of the application before this Tribunal, the Applicant was represented by Mr R Kessels, solicitor, and the Respondent by Mr M Alatt, solicitor. Documents lodged by the Respondent with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were received into evidence and marked T1 to T25, T27 (less folios 213 to 216) to T30. A report of Dr Brent Waters, consultant child psychiatrist, of 7 July 2001 requested on behalf of the parties by the Tribunal was marked as an Exhibit T31.
There was tendered on behalf of the Applicant the following written material, which was admitted into evidence and marked accordingly, namely:
Exhibit No      Description             Date
A        Medical report of Dr Hayes    19 November 2001
B        Applicant's summary of criminal record in Australia and annexures marked 1-39    24 February 2002
C        References by W Thompson; S Foley; and K Muir   Various
D        Statement of B Tenney         24 February 2002
E        Statutory declaration of Ishmael Konteh       26 February 2002

The Applicant, his wife Ms Barbara Tenney, Dr Susan Hayes, clinical psychologist, and Dr Brent Waters gave oral evidence upon which they were each cross-examined.
the issues
The issues now for determination by the Tribunal are:

whether the Applicant satisfies the character test pursuant to section 501 (6) and (7) of the Act; and
if the Applicant does not satisfy the character test whether the discretion provided for by section 501 of the Act should be exercised in his favour. If the latter be so, then the matter is to be remitted to the Respondent for further consideration.

relevant legislative provisions and directions

The Act provides as here relevant:
"SECT 501 Refusal or cancellation of visa on character grounds
Decision of Minister or delegate—natural justice applies
(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
…
Character test
(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
…
(c) having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct;
the person is not of good character; or
(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i) engage in criminal conduct in Australia; or
…
Otherwise, the person passes the character test.
Substantial criminal record
(7) For the purposes of the character test, a person has a 'substantial criminal record' if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
…"
The relevant Direction of the Minister under section 499 of the Act is Direction No 21, which, apart from providing guidance as to the application of the character test and the matters there to be considered, makes provision for factors to be taken into consideration in exercising the discretion contained in section 501. The Direction as here relevant provides:
"PRIMARY CONSIDERATIONS
2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a)the protection of the Australian community, and members of the community;
(b)the expectations of the Australian community; and
(c) in all cases involving a parental or other close relationship between a child or
children and the person under consideration, the best interests of the child or children.
Protection of the Australian community
…
2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;
(b) the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
…
The best interests of the child
…
2.16 When considering the best interests of the child, decision-makers should have regard to the following:
(a) the nature of the relationship between the child and the non-citizen;
(b) the duration of the relationship including the number and length of any separations and reason/s for the separation; the hypothetical prospect for developing a better/stronger relationship in future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct;
(c) the age of the child;
(d) whether the child is an Australian citizen or permanent resident;
(e) the likely effect that any separation from the non-citizen would have on the child;
(f) the impact of the non-citizen's prior conduct on the child;
(g) the time (if any) that the child has spent in Australia;
…
OTHER CONSIDERATIONS
2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations. These other considerations may include:
(a) the extent of disruption to the non-citizen's family, business and other ties to the Australian community;
…
(b) genuine marriage to, or de facto or interdependent relationship with, an Australian citizen…
(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;
…
(h) any evidence of rehabilitation and any recent good conduct;
(i) whether the application is for a temporary visa or permanent visa;
(j) the purpose and intended duration of the entry to or stay in Australia,
including any significant compassionate circumstances; and
…"

the factual situation

The Applicant was born in London, England on 31 December 1966. His father and mother were residing in that country at the time, they being citizens of Sierra Leone. When 6 years of age he travelled with his parents to Sierra Leone, where he remained until he was 18 years old at which time he returned to England believing that he could there further his education and obtain employment.
Seemingly the ethnic rivalries being then experienced interfered with the Applicant's intended way of life. He spent time in London and Bristol and became involved in gang activities. He came to the attention of the law enforcement authorities, was charged and convicted of various offences and spent some time in jail.
In 1987 he met his present wife, Ms Barbara Tenney, she then an Australian tourist spending time in England. A relationship shortly developed, the two of them lived illegally in council premises, Ms Tenney became pregnant and when seven months into her pregnancy, her visa having expired and she and the Applicant having been evicted from their abode, she returned to Australia.
A child, Joshua, was born to Ms Tenney on 12 November 1987. She arranged accommodation in Sydney and has resided there with her son since that time. She obtained employment and with the aid of social security assistance has cared for herself and Joshua.
Contact was maintained between the mother and the Applicant by way of periodical mail and telephone calls. In May 1997 the Applicant travelled to Australia, expressly to visit and spend time with Joshua and lived with the mother and son. He began the process of developing a meaningful relationship with his son and with Ms Tenney. The Applicant returned to England on 30 July 1997 and came again to Australia in March 1998. He has resided in this country, except for two short periods, with Ms Tenney and Joshua since the latter arrival.
The relationship between the Applicant and Ms Tenney, the parents of Joshua, took sometime to become comfortable. There were differences. As Ms Tenney put it in her evidence, they are both headstrong and stubborn, the relationship has had it's "ups and downs", its "good and bad" moments. Initially she said the Applicant felt "threatened" and insecure, he was not working and was dependent on her for his financial support. They married on 30 May 1998.
In 1999 as a result of the Applicant striking her, Ms Tenney left the home with Joshua and obtained an apprehended violence order remaining away for a short period. It was at about this time, an overall period of only two months, that the Applicant committed a number of criminal offences.
The parents resumed their cohabitation with Joshua and have resided together without incident or trauma since that time. Ms Tenney expressed the view that they "now know each other a lot better".
The Applicant says that his mother never listened to him and he had difficulty in making his life plans known to her. This may have been one of the reasons why he left his parents in Sierra Leone and returned to England. His wife, Ms Tenney, is about 10 years older than he is and according to him she "is a mother to me to a degree". They have spent time, he says, finding each other "on a mental level". He regards his relationship with Ms Tenney, as does she, as stable.
The Applicant is dark-skinned, his wife white-skinned. Joshua more closely resembles his father in skin colour. This fact was one that contributed to the close bonding that has developed between father and son of which more will be said later in these reasons.
In the event of the Applicant not being allowed to remain in Australia, the mother and Joshua would not travel with or follow him to England or such other country to which he may go. Ms Tenney considers Joshua well settled in Australia with his school and friends. She would not wish to disturb this situation. There is evidence, which will be discussed shortly as to the adverse effect on Joshua of a separation between father and son.
The Applicant has sought to establish in Australia his own business as a motor sport mechanic.
criminal history of the applicant
in the united kingdom
As recorded at T23, pp 68-70:
1. 24/4/87 At Camberwell Green Magistrates Court:
1. criminal damage  Fine 75.00
2. criminal damage  Fine 75.00
3. possessing offensive weapon in public place           Fine 150.00

2. 5/1/88 At Camberwell Green Magistrates Court:

1. possessing offensive weapon in public place Imprisonment 28 days
2. possessing offensive weapon in public place Imprisonment 28 days concurrent

3. 28/1/88 At Crawley Magistrates Court
1. Non-recordable Offence  Fine 50.00
2. Non-recordable Offence  Fine 100.00
3. Failing to surrender to Bail  Fine 20.00

4. 2/3/89 At Bristol Crown Court
           1. Theft  Imprisonment 12 mths
  partly suspended 2 mths
           2. Theft  Imprisonment 12 mths
  concurrent, partly suspended  2 mths
           3. Theft  Imprisonment 12 mths
  concurrent, partly suspended
  2 mths.

5. 16/1/91 At Bath and Wansdyke Magistrates Court
           1. Dishonestly using electricity  Imprisonment 3 mths wholly
  suspended 2 yrs
           2. Dishonestly using electricity  Imprisonment 3 mths
  concurrent, wholly suspended

3. Dishonestly using electricity  Imprisonment 3 mths
  concurrent, wholly suspended   2 yrs
           4. Producing controlled drug  Imprisonment 14 days
  concurrent, wholly suspended   2yrs

5. Possessing controlled drug  Imprisonment 14 days
  concurrent, wholly suspended  2 yrs
           6. Failing to surrender to bail  Absolute discharge

6. At Bath and Wansdyke Magistrates Court
           1. Handling  Imprisonment 28 days
           2. Obtaining property by Deception  Imprisonment 28 days
  concurrent
           3. At/obtaining property by Deception                 Imprisonment 28 days
  Concurrent
           4. Dishonestly using electricity  Imprisonment 3 mths
  concurrent resulting from
  original conviction of 16/1/91
           5. Assault on Police  Imprisonment 28 days
           6. Dishonestly using electricity  Imprisonment 3 mths
  concurrent resulting from
  original conviction of 16/1/91

7. Dishonestly using electricity  Imprisonment 3 mths
  concurrent resulting from
  original conviction of 16/1/91
           8. Producing controlled drug  Imprisonment 14 days
  concurrent resulting from
  original conviction of 16/1/91
           9. Possessing controlled drug  Imprisonment 14 days
  concurrent resulting from
  original conviction of 16/1/91

7. 2/2/93 At Bristol Magistrates Court
1. Common assault on adult Fine 60.00
Bound over 12 mths

8. Cautioned on 27/1/96 At Golders Green Divisional
1. Affray

9. Cautioned on 25/10/97 At Kentish Town Divisional
1. Possession of a class B drug – Cannabis resin

In relation to the above offences the Applicant has said (T21, pp 63-64):
"1.His first offence was breaking into a vacant government dwelling as at the time he left home after he turned 21 years of age and entered the empty unit by breaking the glass window. He and Ms Tenney lived there for almost 7 months before they were kicked out when Ms Tenney was 7 months pregnant. He was only fined for that offence.
2. His second offence was related to an instant police body search of group of youngsters of ethnic background and found a small knife on him. He served 14 days out of 28 days jail term in January 1988.
3. Third offence was trespassing – travelling on train without a ticket, for which he was fined twice also for breaching the bail condition.
4. In 1989 he was involved in a theft of a commercial premises (shop) and was sentenced to 12 months, 6 months of which he served in prison.
5. & 6. In January 1991 he lived with then a girlfriend Alexandria (nickname Polly). As he was unemployed and had no money to pay for his share of utilities, she reported him to the Police. When the police arrived they discovered the marijuana plant that he had at home for his own use given by his friend. Whilst he was on bail he had problems with the same girlfriend again and used her chequebook for his own use. He was charged and appeared at Bristol Magistrates Court. Both counts of charges were combined as concurrent imprisonment of 12 months. He was released after 5 months and 21 days.
7. In February 1993 he was charged for hitting his then girlfriend Susan Miller. Although there was no evidence of such incident due to his past records the Magistrate pleaded him guilty and a small amount of fine [sic] was imposed.
8. & 9. These two offences relate to possession of small amount of drug, and for which he was given a caution."
in australia
Whilst in Australia the Applicant has committed criminal offences, a record of which shows:
Court   Date         Offence Court Result
Burwood Local          16/8/00          Drive manner Dangerous (1st instance warrant) Drive Speed Dangerous (1st instance warrant) Common Assault State false place of abode (1st instance warrant) Unlicensed Drive (1st instance warrant) Drive While Unlicensed (1st instance warrant)      On    charge: Periodic Detention 4 months S9 bond 2 years On each charge: Fined $500 Fined $200
Burwood Local          20/12/99        Common Assault (2 charges) On each charge: Convicted. S80AA Warrant to Issue
Burwood Local          16/11/99        Drive Without Licence on Road Drive State False Name Drive manner Dangerous     On each charge: Convicted. S80AA Warrant to Issue.
Bankstown Local Court        2511/99         Drive Without Licence on Road Drive Speed Dangerous Exceed Speed Limit Take Part in race between Vehicles on road     On each charge: Convicted. S80AA Warrant to Issue On each charge: Filed in Court

As contained in a document compiled on behalf of the Applicant, and to which no objection was taken on behalf of the Respondent (Exhibit B), his relevant Australian record shows:
"1. …the applicant has been convicted in Australia of a total of seven offences…
The Bankstown matters:
2. On 29 September 1999, the applicant was arrested in relation to a driving incident which occurred on the Hume Highway at Chullora. He was conveyed to Bankstown police station where he was issued with a Court Attendance Notice…
3. When the matter came before Bankstown court on 25 November 1999, the applicant did not appear…
4. The matter proceeded in his absence…
5. However, the applicant was convicted of the two remaining charges: "Drive Without Licence on Road" and "Drive Speed Dangerous"…Because the applicant was not present in court, the magistrate issued a s80AA warrant….
6. Those matters were finally dealt with at Burwood local court on 16 August 2000… The applicant was sentenced on that day to 4 months periodic detention and was disqualified from driving for three years…
7. The applicant completed his periodic detention without incident.
The Burwood matters:
Common assault x 2
8. On 24 October 1999, the applicant was arrested …charged in relation to two offences of "Common Assault"…
9. On 2 December 1999…the applicant was convicted, in absentia, of both charges. S80AA warrants were issued…
10. These warrants were executed on the applicant when he was arrested on 19 April 2000…the matters were finally dealt with…on 16 August 2000…the applicant was sentenced on each matter to a 2 year bond…Those bonds are in force until 16 August 2002.
Driving Offences
11.On 17 October 1999, the applicant was arrested in relation to a driving incident, which occurred on that day on Liverpool Road Ashfield. He…was charged with three offences: Drive Unlicensed, State False Name and Drive in Manner Dangerous to the Public…
12. The applicant attended court on 2 November 1999 and the matter was adjourned until 16 November 1999. On that day the applicant did not attend and he was convicted of all three matters in his absence…
13. The applicant was arrested on 8 December 1999…
14. On 22 February 2000, the applicant made application to have annulled…the three convictions of 16 November 1999…
15. The application…was allowed and the conviction annulled… The applicant entered a plea of not guilty…
16. …
17. The matters were finally disposed of at Burwood Local Court on 16 August 2000 when the applicant changed his plea to a plea of guilty and was convicted on the offence of Drive Manner Dangerous. He was then sentenced in relation to that matter and the two other convictions…(namely: State False Name and Drive Unlicensed)…
18. In relation to the DMD (Drive in Manner Dangerous), the applicant was sentenced to 4 months periodic detention …In relation to the other two matters he was sentenced to a fine of $500 and a three year suspension of his licence…"

character

On behalf of the Respondent it was submitted that the Applicant does not pass the character test either under section 501 (6)(a) because he has a substantial criminal record as identified in subsection (7), having been sentenced to a term of imprisonment of 12 months or more or under section 501 (6)(c)(1) on account of his past and present criminal conduct.
The Applicant as earlier noted in these reasons was convicted of a number of offences in the United Kingdom between April 1987 and October 1997 and sentenced to imprisonment for various periods. It is noted by the Tribunal that the charges on the date 16 January 1999 were subsumed in the matters before the Court on the 9 August 1999. The Applicant maintained his disregard for the law by engaging in the above detailed criminal conduct in Australia.
On behalf of the Applicant it was conceded that there is material before the Tribunal on which it could be satisfied that the Applicant is not a person of good character because of his criminal conduct in the United Kingdom and in Australia. The Applicant is still subject to the terms of a good behaviour bond for assault on his wife. It was further conceded on behalf of the Applicant that the provisions of section 501(6)(a) and section 501(7)(c) probably apply to the Applicant, he being a person who has been sentenced to a period of imprisonment for 12 months or more.
The offences committed by the Applicant in Australia all occurred within a two-month period between September and October 1999. There has not been an offence committed by the Applicant since that time. As to the offences committed in the United Kingdom, the more significant of them occurred not less then 11 years ago and no matter of significance of a criminal nature arose after 1993.
The Tribunal is satisfied however, having in mind the criminal history of the Applicant, that he is not of good character within the meaning of the Act. This is not to say that the Tribunal is unmindful of the good conduct of the Applicant since 1999 and the absence of any serious offence being committed in the United Kingdom after 1993.
recidivism
A factor to be considered by the Tribunal in exercising the discretion consistent with Direction No 21, is the protection of the Australian community, the seriousness and nature of the Applicant's criminal conduct, the likelihood that conduct of a like nature may be repeated and the need to generally deter other people from committing the same or a similar offence.
In her report Dr Susan Hayes inter alia said:
"…It is my opinion Ishmael has displayed disruptive behaviour, the features of which do not meet the criteria for oppositional defiant conduct disorder. As with many young men who have disruptive behaviour and have had little regard for the rights of others, Ishmael seems to have been rather immature, and there are still persisting indications of immaturity in his behaviour and reactions, including his self-centeredness and rather grandiose ideas. Nevertheless, none of these features reach clinical proportions, and can be regarded simply as facets of Ishmael's personality. There is some evidence of reform in relation to Ishmael's past behaviour. He appears to have achieved some insight into his violence, and to have made a conscious decision not to continue a familial pattern of violence. Ishmael and Barbara both comment on differences in their relationship, particularly in respect to their parenting styles, but each appears to be able to live with the differences, although on occasion it seems that Joshua is part of a tug-of-war between the two of them. Given this reported "settling down" of the relationship, there is a lowered risk of repetition of the incidents of domestic violence by Ishmael against Barbara. There is no evidence that I could discern of adverse effects of Ishmael's personality on Joshua."
References from persons who have been involved with the Applicant in an employment context tendered to the Tribunal depose to the Applicant having "proved to be an asset to our team. He was not only reliable and hard working, he also showed great initiative and aptitude for the job he was required to perform", that he was "honest, reliable and competent", a referee having "no hesitation in recommending Ishmael Konteh for any position he applies for", and identifying the Applicant "as a store person with extensive experience in all areas. There has been little to no negative feedback on Ishmael, which comes from his unprecedented effort and determination to get the job done" (Exhibit C).
The Applicant accepts that he has offended in the past. He says that he has "made real efforts to change and to lead a law abiding life. My main hope is that I would be allowed to remain in Australia to live with my wife Barbara and raise Joshua, both of whom I love very much. I understand that the Tribunal would be giving me a chance if allowed to stay, and I honestly believe that I would use that opportunity to make a real contribution to the community and to raising my son." The Applicant says that his "true passion is to start my own company that will produce fibreglass body parts for motor vehicles. I have begun a small operation producing fibreglass parts on express order for individual customers and work from my home workshop. I hope to build this up into a business…"(Exhibit E).
On behalf of the Respondent it was submitted that recidivism or the possibility of re-offending was a significant matter for consideration. The propensity of the Applicant to become angry as seen in the assaults as well as the other criminal conduct was not something that could be considered as other than serious. However, it was conceded that the Applicant's criminal conduct was not "of the most serious" nature, but it was such as to warrant the Tribunal concluding that the risk of recidivism was significant. On behalf of the Applicant, Mr Kessels contended that the concentration of the Australian offences within the two-month period and the same occurring at a time when the Applicant and his wife were experiencing difficulties, considered with the lengthy period of time for which there was no serious offence committed in the United Kingdom, create a situation that does not warrant a finding referable to recidivism other than that it is low or moderate.
The Applicant has demonstrated a pattern of criminal conduct both in the United Kingdom and Australia, details of which have been set forth earlier in these reasons, which suffice to enable a finding to be made that the Applicant is not of good character. However, the Tribunal is satisfied that the Applicant has exhibited a resistance to committing further criminal acts in Australia, has bonded with his wife and son and has shown a willingness to engage in meaningful employment. The references provided all exhibit a person able and willing to make a significant contribution to this country.
The Tribunal does not consider that the risk of recidivism in the Applicant is other then moderate.
This being so, the deterrent consideration may be considered in similar vein, refusal of a visa being unlikely to have any measurable effect on the conduct of other prospective visa applicants.
The Tribunal is satisfied that in all the circumstances of this matter, and whilst non-citizens are expected to respect and obey Australian laws whilst in this country, nevertheless, the community would not expect, on this account, a visa to be withheld.
relationship between the applicant and joshua
The Applicant believes that his presence in the life of his son "is crucial" to his son's emotional well-being and stability" (T8 p20). Ms Tenney says that the Applicant "takes his role as a father seriously and has a positive influence on Joshua" (T10, p41). In April 1999 she said (T22):
"…if Ishmael was refused residency and had to leave, this would have an extremely negative effect on Joshua… he needs the discipline and guidance that his father can give him, he also needs a black role model as I believe he will start to encounter more racism as he grows older and as this is something I have experienced only on a subtle level, being the mother of a black child, he cannot look to me and see black he can only do this with his father. This is a very crucial time in Joshua's life were without the presence of his father it could determine the outcome of his future. I would hate to see his dreams shattered now. Ishmael also would be heartbroken if he had to leave us as he has settled into our lives and we have become a unit, that can only get stronger as time goes on. Ishmael and I are committed to each other and to Joshua and to break this up now would be detrimental to all of us."

Ms Tenney felt that sometimes the Applicant was more protective of Joshua than she was, and that her son respected both of his parents.

In his evidence before the Tribunal the Applicant said that in the event of his being required to leave Australia "Joshua would be lost. He is not white or black; he needs to deal with the issue now. I am trying to do my best by telling him what I do as a father and let him decide". It was apparent to the Tribunal that at this time in the giving of his evidence, being under cross-examination, the Applicant became quite emotional when discussing the welfare of his son.
Ms Tenney said that if the Applicant was refused a visa she would not want to move Joshua from Australia, from his school and from his friends. She would not want him to be separated from his current environment.
In his report Dr Waters spoke of this relationship. He said (T31):
"…I spoke to Joshua alone. He told me that he does not want his father to go because he would miss him…
Joshua is a tall, slim, attractive boy of mixed race appearance. He was somewhat reserved in the presence of his parents, although his father constantly drew him into banter. While Joshua always responded in a good humoured way, these interactions were all initiated by the father and at times they appeared a little heavy-handed and contrived. He impressed as being a bit guarded. He was difficult to draw out about his relationship with his father, but with rare exceptions, his comments were all positive…
I have no doubt that Joshua would like his father to remain in Australia. He has not had a father figure in his life up until his father came back on the scene, and I accept his mother's view that this set him apart from many of his peers. Moreover, he is distinctly non-Caucasian in appearance in comparison with his mother, and there are important matters to do [sic] with having a African identity which I have no doubt are significant in Joshua's attachment to his father and in terms how Joshua sees himself. It is also relevant that Joshua is a boy, and the relationship between fathers and their sons has a particular salience in the formation of a secure sense of personal identity in adulthood. While this starts in childhood, important consolidation occurs during the adolescent years.
It is my opinion that in balance Joshua's best interest would be served if his father remains in Australia…
It is also my opinion that it is in Joshua's best interests that he remains in Australia. He has been born and raised here, his entire circle of friends in [sic] here and his mother's supports are here.
In the event Mr Konteh is refused a Visa and is removed from Australia, and that Joshua and his mother decide to remain in Australia, it is probable that Joshua's relationship with his father would be significantly attenuated…"
Whilst conceding that if the Applicant was removed from Australia Joshua would "not fall apart at the seams", Dr Waters did recognise that the disadvantage would be relative and would represent a significant step back from what Joshua was used to.
Dr Hayes in her report also made mention of the relationship between father and son saying (Exhibit A):
"…When I asked Ishmael what would happen to Joshua if Ishmael had to return to England, he says that Joshua would be lost and his mother would have no control over him. Ishmael says that he is the only one who listens to Joshua at home, and that the mother is still convinced that Joshua is a little baby. He says that he wishes that he were closer to his son, and they could talk more. He says that he is trying to make Joshua more independent, and is trying pull him towards himself, and let him see things in his father's way, so that they can be more like brothers or mates…
When asked how he would feel if his father had to return the UK, he [Joshua] said that he would "probably go crazy if he was not with Dad" because his father is "one of the main idols". He expanded on this by saying that what he likes most about his father is that his father does not care what other people say, and just is himself. He says that his father is able to keep Joshua in line without being to strict, and he knows that both of his parents are there for him…"
Dr Hayes said that she formed "the view" that Joshua has an attachment to his father which is reasonably strong but which is also associated with some fear that his father would disappear out of his life again. She further stated:
"In my opinion the statements that Joshua is "like a shadow" to Ishmael and wants to be with him twenty four hours a day, seven days a week, does not so much reflect the strength of the attachment, but rather is an indication that at some level Joshua fears that his father my slip out of his life…
Joshua expressed the view quite strongly that he wants his father to remain in Australia and that if he left, he would become very sad and "probably go crazy". It appears that Joshua has quite a deal of admiration for his father, and also identifies with him in many ways, particularly relating to having an African identity…
…if Ishmael Konteh were removed from Joshua's life now, this would be more detrimental to Joshua and if he had had not had a relationship with Ishmael at all…Joshua would be better off health-wise if Ishmael remains in Australia.
…there is a prospect for Ishmael and Joshua to develop a better and stronger relationship in the future. Their past relationship, however, has not been detrimental to Joshua, and there are indications including from Joshua himself that he has benefited emotionally and psychologically from the presence of Ishmael in the household. Ishmael has been present during an important formative part of Joshua's life. The likely effect on Joshua would be very detrimental, and he himself comments that he would "go crazy" if his father were not be permitted to remain in Australia…
Overall, on balance I consider that it is in Joshua's best interests that his father remains in Australia, whether or not the father remains in a relationship with Joshua's mother. I am of the opinion that it is in Joshua's best interests for Joshua himself, to remain in Australia for the reasons I mentioned above. If a visa was refused for Ishmael… this would have an adverse effect on Joshua himself and upon the relationship between Joshua and his father. It is likely that Joshua would suffer a period of grief, even if he kept in contact with his father, and even if he went to visit his father in whatever country his father decided to reside. Joshua's sense of security would be undermined…It is my opinion that it is likely that Joshua would suffer from feelings of guilt…he would experience a feeling of abandonment."
Dr Hayes, after expressing her view that in the event of the Applicant being required to leave Australia Joshua would suffer a period of grief, said that the latter would be quite dangerous to the child and she thought that there was a possibility of Joshua committing suicide as an impulsive act. Dr Waters was of the view that there was a slight risk of suicidal behaviour "a possibility in the lower range".
relationship between the applicant and ms tenney
It is an aspect warranting consideration in this matter that the removal of the Applicant from Australia might have an adverse consequence upon others including the Applicant's wife. Factors relevant to this consideration have been earlier detailed.
The Applicant says that he is fully committed to his relationship with his wife, even be it in the past conflict did arise and there still is a current apprehended violence order against him. Both the Applicant and his wife said that they have been working on their marriage and are committed to it. The past is over, they both said. The Applicant, according to his wife, is now more confident and they now "know each other a lot better". Dr Waters holds a reservation as to the relationship being quite as the parties describe it. He felt that they were both "talking the relationship up a bit". Apart from the observations of Dr Waters there was not any evidence before the Tribunal other that the relationship is at this time sound and that each party intends for it to continue. In the event of the Applicant not being permitted to remain in Australia there would be an adverse effect upon Ms Tenney. She would not only have to accommodate the distress that would be experienced by Joshua and monitor his conduct and behaviour, but would also experience stress and trauma herself.
submissions and decisions

It was submitted on behalf of the Applicant that if the Tribunal finds that the Applicant does not pass the character test, which it does so find, that the discretion provided for by section 501 of the Act should be exercised in the Applicant's favour.
Be it that the Tribunal is satisfied that the Applicant's criminal conduct is serious within the meaning of Direction 21, it was submitted that it has not been so serious as to bring it within the terms of paragraph 2.12 of the Direction. The Tribunal is inclined to adopt this submission made on behalf of the Applicant. The Tribunal does not consider the risk of recidivism as being other than moderate and does not consider the criminal conduct of the Applicant in all the circumstances of this matter to be such as to attract adverse expectations of the Australian community. Mention was made of the genuine and long-term relationship between Ms Tenney and the Applicant, and of Joshua being an Australian citizen. The Tribunal is mindful of the opinions expressed by Dr Waters and Dr Hayes each considering that Joshua's interests would be best served if the Applicant should remain in Australia. This is a primary consideration and is to be given significant weight.
Thus on behalf of the Applicant it was submitted that his criminal record, whilst serious, was not so serious as to outweigh the best interests of Joshua combined with the adverse effect upon Ms Tenney of a visa being refused.
The position of the Respondent as submitted to the Tribunal underscored the seriousness of the conduct, the risk of recidivism, general deterrence and the expectations of the Australian community as earlier detailed in these reasons. The Tribunal is mindful of the seriousness of the criminal conduct of the Applicant but has considered the same in the context of the circumstances then existing and the earlier observations herein made. It does not consider the risk of recidivism other than moderate and does not consider that general deterrence is an overly significant consideration. The expectations of the Australian community are to be looked at in all the circumstances of this matter.
Turning to the interests of Joshua, Mr Allat, on behalf of the Respondent, laid emphasis upon the two occasions when the mother was required to leave the home with Joshua and obtain an apprehended violence order. But this was conduct committed nearly three years ago of which there has not been a repetition. On the evidence before the Tribunal, it is most unlikely that there would be any re-occurrence.
In all the circumstances of this application the Tribunal is satisfied that the significance to be attached to the criminal conduct of the Applicant and the other factors that relate to it are far outweighed by the adverse consequences that would be experienced by Joshua if the Applicant was not permitted to remain in Australia and play a significant part in the upbringing of his son. The evidence before the Tribunal is such as to satisfy it that the best interests of Joshua will be served if the Applicant should be allowed to remain in Australia.
For these reasons, the Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion provided for by section 501 of the Migration Act 1958 be exercised in the Applicant's favour. The matter is remitted to the Respondent for further consideration.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon. R N J Purvis Q.C., Deputy President
Signed: O. Caragianni            .....................................................................................
  Associate
Dates of Hearing  4 and 5 March 2002
Date of Decision  18 April 2002
Solicitor for the Applicant         Mr R Kessels
Solicitor for the Respondent    Mr M Allat