Konteh and Minister for Immigration and Multicultural Affairs - [2000] AATA 291

DECISION AND REASONS FOR DECISION [2000] AATA 291

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/312

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

DECISION

Tribunal Mr B.J. McMahon (Deputy President)

Date14 April 2000
PlaceSydney

Decision      The decision under review is affirmed.
  (Sgd) BJ McMahon ..............................................
  Deputy President
CATCHWORDS
IMMIGRATION – spouse visa – refusal – application of section 501(6) Migration Act 1958 – impact of past and present criminal conduct – impact of past and present general conduct – whether person of good character – risk of recidivism – whether in community interests and expectations – best interests of child – whether any hardship – community interests and expectations outweigh harm – decision affirmed
Migration Act 1958 ss 200, 499, 500(6H), 501(6)
Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998
Migration Act 1958 Direction under Section 499(1) – Visa Refusal and Cancellation under Section 501 Direction NO – 17 (2) Direction - Visa Refusal and Cancellation under Section 501 – No. 17(3) @ para. 1.8, 1.9, 2.3, 2.6, 2.15, 2.16, 2.17

Hui v Minister for Immigration and Multicultural Affairs (1999) FCA 985

REASONS FOR DECISION

14 April 2000 Mr B.J. McMahon (Deputy President)

This is an application to review a decision of a delegate of the respondent made on 8 February 2000 refusing a spouse visa to the applicant, principally on the ground that he does not satisfy the Minister that he passes the character test. The relevant part of section 501 of the Migration Act 1958 provides in subsection (6) that a person does not pass the character test if, having regard to either or both of that person's past and present criminal conduct, and his or her past or present general conduct, the person is not of good character. That section was introduced by the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct)Act 1998. Accordingly, the procedural requirements of the amending Act have application in the present circumstances.
Mr Konteh was born in the United Kingdom on 31 December 1966 and remains a British subject. He met Ms Tenney in England, where he lived, in 1986. Two weeks after their first meeting, they began to live together at a unit owned by the government. Mr Konteh told a departmental interviewing officer that some 7 months later he was remanded in custody after being found guilty of breaking into and occupying a government dwelling without permission. Ms Tenney was then pregnant and her visa was coming close to its expiry date. She therefore returned to Australia where their son Joshua was born on 12 November 1987. At that time, Mr Konteh was still in custody. For the next 10 years he and Ms Tenney exchanged correspondence and photographs of each other and of the child. During that time, however, he was also repeatedly charged with and convicted of various offences. These convictions commenced on 24 April 1987 and continued until 27 January 1996. He was further cautioned on 25 October 1997. There were a total of 7 convictions entered at various magistrates' courts in the United Kingdom, together with two cautions. The subject matter of the convictions included possessing an offensive weapon, dishonestly using electricity, obtaining property by deception, possessing a controlled drug and some offences of violence including common assault and affray.
When asked about these convictions during his interview on 7 April 1999 with a departmental officer, he gave various explanations for each one. In his evidence before me, he denied that some of the convictions had in fact taken place. A certificate from the National Identification Service at New Scotland Yard contradicts his recollection and is to be preferred.
Mr Konteh first came to Australia on 31 May 1997 for a visit which was to last for two months. On that occasion he met his son for the first time. Joshua was then 9 years old. Mr Konteh returned to England promising that he would come back to Australia the following year.
He arrived in this country on the second occasion on 25 March 1998. Mr Konteh and Ms Tenney were married 2 months later in May. At his interview in April 1999, Mr Konteh claimed that the relationship between Ms Tenney, himself and Joshua was stronger than ever before. It is clear, however, that this relationship was strained on occasions.
A number of incidents have been reported to the New South Wales police. A full copy of their incident reports totalling 82 pages, together with a 3 page summary was obtained by the respondent's solicitor on the last working day before the hearing but was not made available to the applicant until the hearing had commenced. The respondent is not bound by the restriction in subsection 500(6H) requiring information to be considered at the hearing to be presented at least two business days before that hearing. The applicant (who was not legally represented) had only a brief opportunity to read these notes. I adjourned for a short period in order to enable him and Ms Tenney to consider the content of the documents. It was not practical to grant a longer adjournment, having regard to the provisions of subsection 500(6L) which imposes a strict time limitation within which applications of this nature must be finalised.
From these police reports emerged a pattern of conduct. On 1 December 1998 (7 months after their marriage), Ms Tenney came to Flemington Police Station to report incidents of domestic violence. From other information which came out in the course of cross-examination (and which was not "in support of" the applicant's case otherwise I could take no account of it) it appears Ms Tenney was assaulted in the course of an argument with Mr Konteh. He hit her right thigh so hard with a golf club that she sustained a large bruise, had difficulty in walking and subsequently sought medical attention. No court case arose from that incident as the police recorded that Ms Tenney requested that the incident be merely noted at that stage.
Ten months later, she was at Flemington Police Station again on 18 October 1999 complaining of assaults that took place on 11 and 12 October 1999 in the course of arguments. In the first incident Ms Tenney said that Mr Konteh grabbed her by her necklaces and shirt "half choking her" and hit her on the right side of her face. She went to work and returned at 3am the following day. At 8.00 that morning Mr Konteh woke her up and another argument ensued. In the course of that argument, Ms Tenney said that Mr Konteh grabbed her by her clothes and pushed her to the ground. In the garage he subsequently hit her on the right side of her face.
Mr Konteh denies that these assaults happened. He refers to them as domestic incidents and at first refused to answer any questions relating to them.
As a result of these assaults, Ms Tenney again attended the police station on 18 October 1999 to make a statement and to request that investigation be halted until she could find alternative accommodation away from Mr Konteh. She had moved out the previous year for some five weeks after the golf club episode. On this occasion she moved out again for a further period of 8 or 9 weeks.
On 24 October 1999, Mr Konteh was arrested and taken to Flemington Police Station. He again denied the assaults but was charged after an interview. He was bailed to appear in Burwood Local Court on 20 December 1999. Mr Konteh says that he was never told when he had to attend court. The ordinary bail procedure, of course, is that the necessity to attend court on an appointed day is explained to a prisoner.
Ms Tenney then obtained an apprehended violence order from Burwood Local Court on 18 November 1999 which was to last for two years. The two assault charges were listed for hearing at Burwood Local Court on 20 December 1999 as, I believe, Mr Konteh was informed at the time he was bailed. He failed to appear and was convicted. The magistrate ordered warrants to issue. Mr Konteh maintains that he has requested the proceedings to be re-opened, although there was no evidence put before me to support that statement.
Mr Konteh has been arrested on two other occasions in relation to serious traffic offences. At 2.00pm on Friday, 29 September 1999, he was arrested while allegedly racing his car on the Hume Highway, Chullora. He was charged with being an unlicensed driver, taking part in a race between vehicles on a road, driving at a speed dangerous to the public and exceeding the speed limit. His car was confiscated. It was alleged that he was driving at a speed of up to 150 kilometres per hour in a 70 kilometre per hour zone. He admitted to the police that he was speeding but said that his reason was that he was about to run out of petrol. He was bailed to appear in Bankstown Court on 25 November 1999. On that day he failed to appear and was convicted of the four offences. Once again, Mr Konteh said that he was not aware that he was obliged to attend court on that day.
Some three weeks after that incident, he was again arrested while driving another vehicle at 4.10am on Sunday the 17th of October 1999. Again, it was alleged that he was speeding, racing, crossed to the wrong side of the road where he travelled for about 70 metres causing pedestrians to jump away and, again, had no licence. It was alleged that he gave a false name and date of birth and a false account of the reason why he continued to be unlicensed. He was charged with being an unlicensed driver, driving in a manner dangerous, stating a false name and place of abode and was bailed to appear in Burwood Local Court on 16 November 1999. On that day, he failed to appear and was convicted of all charges. Warrants were ordered to be issued. Once again, Mr Konteh maintains that he was unaware of his obligation to attend court. The traffic convictions have again been listed for sentencing on 3 May 2000 following Mr Konteh's most recent arrest in relation to the warrants.
Two other police reports concerning Mr Konteh relate to his threatening behaviour. On 1 December 1999, it was alleged that Mr Konteh had gone to the yard where his confiscated car was held. The complainant to the police alleged that he had been sighted in the yard on previous occasions. It was further alleged that Mr Konteh was approached by an employee and questioned as to what he was doing there. Mr Konteh is said to have told the employee he wanted to get something from his car. He was then told he was on private property and could not get to his vehicle. It is then alleged that Mr Konteh put his hand behind his back and threatened to shoot the employee. At the hearing before me, Mr Konteh denied the whole incident and said that he had never been to the vehicle holding yard and had never had any conversation of the nature alleged against him.
The second police report relates to an incident on 20 March 2000 (three weeks before the date of the present hearing) when a person alleged that he had been assaulted by Mr Konteh. The applicant remembers the incident and said that the complainant had been singing aloud and Mr Konteh had asked him to stop. The complainant said that Mr Konteh had pulled off the complainant's cap and punched him in the forehead before leaving. Mr Konteh denied this. He is recorded as having told the police that he took off the victim's cap and spoke in the victim's ear because he thought the victim could not hear properly. Before me, he denied that even this version of events was correct. No charge was laid as it could not be established if any assault occurred.
Joshua, who is now 12, is in year 7 at South Strathfield High School. Ms Tenney agrees that she bought Joshua up alone until the age of 9 and that they got on well and had a close relationship. She considered, however, that Joshua was now at an age when he needed a male influence. In her statutory declaration, lodged with the Department, she said:
"Our relationship seems to have weathered the initial storms and difficulties that first confronted us. Becoming an instant family is no easy task for all involved and we appear to have worked through the first year and come out the other side with greater understanding. Ishmael and Joshuas relationship has strengthened to a Point of mutual love and I believe that if Ishmael was refused residency and had to leave, this would have an extremely negative effect on Joshua. As with most children, Joshua has always wanted to know his father and in his case, because his father is black it is doubly important for his self identification. As Joshua is heading into his teens 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 Joshuas life where 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."

Joshua, of course, has been present during some of the alleged assaults which his father has made upon his mother. What effect these have had on him, and what effect separation from his father would have are matters that it was not possible to explore except through the opinion of his mother. For example, I was told that Joshua had received counselling from Barnardos. No attempt was made by the respondent, or by the applicant, to obtain a report from the counsellor. I was precluded in any event from taking account of any information given to me second hand about the counsellor's opinion by the provisions of subsection 500(6H). It has been suggested by the Federal Court in the context of a case brought under section 200 (Hui v Minister for Immigration (1999) FCA 985 at paragraph 14) that this Tribunal has ample statutory powers to obtain information as to where the best interests of children of an applicant lay. Irrespective of the lack of resources which would inhibit this Tribunal from obtaining any such information, there is simply no possibility of taking account of any such information because of the provisions of subsection (6H). That subsection precludes an inquisitorial approach. There is no reason, of course, why the Department itself should not make inquiries as to the best interests of children. It has (according to the documents tendered in evidence) a memorandum of understanding with the New South Wales Police Service concerning the provision of information. There is no reason why a similar memorandum of understanding should not exist with the NSW Department of Community Services, where skilled persons would be available to assess the interests of children of any applicant. Such information and assessment could be made available to both parties in accordance with the statutory timetable.
Ms Tenney works casually as a receptionist although she was trained as a photographer and has a degree in visual arts. She could not say whether she and Joshua would return to England with the applicant if his visa was refused. Her mother is not alive but her father lives in Australia. She said hers was not a close family. Mr Konteh's father lives in Sierra Leone and his mother travels between Africa and England. Ms Tenney said that she would prefer that her son did not grow up as a black youth in the United Kingdom as it is likely he be would "caught up" in their subculture.
In determining whether an applicant passes the character test, a direction has been given by the Minister under section 499(1) which is binding upon me. The relevant parts of that direction are as follows:
"1.8     In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(i), decision-makers should take into consideration the following:
          (a)       the nature, severity and frequency of the offence/s;
          (b)       how long ago the offence/s were committed;
          (c)       the non-citizen's record since the offence/s were committed, including:
?any evidence of recidivism or continuing association with criminals;
?        a pattern of similar offences; and/or
  ?        pattern of continued or blatant disregard/contempt for the law;                           and
(d)any mitigating circumstances such as may be evident from judges' comments, parole reports and similar documents.
?        Subparagraph 501(6)(c)(ii) – past and present general conduct
1.9      In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:
(a)whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:
?engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen's moral qualities;
?        continual evasion or non-payment of debt;
  ?        continual disregard as to payments of family maintenance;
?involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, "white collar" crime, fraud, breaches of immigration law; or
?involvement in war crimes or crimes against humanity.
(b)whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;
(c)whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen's character or conduct or both;
(d)whether the non-citizen has been removed/deported from Australia or removed/deported from another country; or
(e)whether the non-citizen has been dishonourably discharged from the armed forced of any country or discharged prematurely as the result of disciplinary action in circumstances, or because of conduct, which would be regarded as serious in Australia."

Clause 2.6 of the Direction sets out examples of offences, which are considered by the Government to be very serious. These include some of the offences for which the applicant has been convicted, namely crimes of violence against persons. The crimes in the United Kingdom were numerous, although there were only 9 court appearances between 1987 and 1997. Sentences totalled over 16 months although only something over 5 months was actually served in prison. In relation to the Australian convictions for assault, no sentence has yet been imposed pending the execution of warrants. On the evidence before me, I must accept that these convictions were final and have not been appealed. This means that the relevant offences were not in the remote past, but extend up until a few months ago.
They establish, in my view, a pattern of offences and point to a high risk of recidivism. Mr Konteh continually denied aspects of these convictions, some of which denials were clearly contradicted by his wife who gave evidence separately. These denials, indicating an absence of remorse, lead me to believe that the pattern of conduct is likely to be continued into the future and that there is a high possibility of recidivism.

In considering general conduct I am to take account whether his activities have shown a contempt or disregard for the law. The fact that he was arrested for serious traffic offences and was found to be pursuing similar activities within 3 weeks after the first arrest, indicates to me that he has disregarded his obligations under the law. The fact that he has failed to attend court on 3 occasions reinforces the impression I have. I do not accept his evidence that he did not know that he was required to attend court on stipulated days. Having regard to his previous experiences with courts it is beyond belief that he did not know when bailed that he would have to attend court and it is beyond belief further that he was not told the day on which he would have to attend court, not on 1 but on 3 separate occasions. I am satisfied, therefore, that he does not pass the character test. There is no evidence of rehabilitation and recent good conduct.
I am therefore to consider the residual discretion. The factors to be taken into account are also prescribed by the Minister's direction. There are three primary considerations as follows:
"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 relationship between a child or children and the person under consideration, the best interests of the child or children."

Protection of the Australian community involves a consideration of the seriousness and nature of further conduct, the likelihood that the conduct may be repeated and whether visa refusal or cancellation may prevent or discourage similar conduct. For reasons which I have already given, I consider that Mr Konteh's conduct has been serious and that it is likely to be repeated. The question of general deterrence can only be a matter of speculation.
The principal factor in deciding whether the discretion should be exercised in the applicant's favour is to consider the best interests of Joshua in respect of his relationship with his father. It is true that a child's best interest will be served if a child remains with his parents. There are, however, countervailing considerations as are pointed out in paragraphs 2.15 and 2.16 of the Ministerial Direction.
There may be a good relationship between Joshua and his father at present. It cannot, however, be said to be of long standing. During Joshua's 12 years, he has known his father only for 3, despite the correspondence which his parents had for the previous 9 years. There is no particular evidence available, of which I can take account, of any particularly harsh effects on Joshua that might result from separation from his father. There is, however, some evidence of violence between his parents in his presence which cannot have been conducive to his welfare. There is no evidence that the educational facilities and the standard of the health support system of the United Kingdom are not comparable with those of Australia if Joshua has to return to that country. Nor, of course, are there are any language barriers. There may be some cultural barriers as Ms Tenney pointed out but there is no evidence of which I can take account which would lead me to believe that Joshua would be unable to adapt to new circumstances.
Paragraph 2.17 of the Ministerial Direction sets out a number of other matters that may be relevant in considering the exercise of the discretion. These include the disruption to the applicant's family, which I have already discussed. I am not aware of any other ties to the Australian community which the applicant may have. The degree of hardship which would be caused to his wife was put no higher than the hardship she would incur in raising the fare if she and Joshua were to follow Mr Konteh to the United Kingdom.
There is no evidence of any other hardship which might be experienced by any other member of the applicant's family.
The discretionary factors, both primary and secondary, are, in my view, far outweighed by the findings relating to the applicant's conduct. For the protection of the Australian community, and in accordance with the expectations of the Australian community, the decision under review should be affirmed.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon (Deputy President)
Signed:         J. Healy           .....................................................................................
  Jacqueline Healy, Associate
Date of Hearing  10 April 2000
Date of Decision  14 April 2000
Applicant  Self-represented
Solicitor for the Respondent    S Fraser, Australian Government Solicitor