Oluwafemi and Minister for Home Affairs (Migration)

Oluwafemi and Minister for Home Affairs (Migration) [2018] AATA 690 (29 March 2018)
Division:GENERAL DIVISION
File Number(s): 2018/0170
Re:Fisayo Oluwafemi
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member M Griffin QC
Date:29 March 2018
Place:Sydney

The decision of the Minister’s delegate to refuse the applicant’s visa pursuant to section 501(1) is affirmed.
......................[sgd]..................................................
Senior Member M Griffin QC
CATCHWORDS
MIGRATION – visa refusal – partner visa – failure to pass character test – Ministerial Direction 65 applied – protection of the Australian community – nature and seriousness of conduct – risk to the Australian community – best interests of child – expectations of Australian community – other considerations – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 496, 499, 501
SECONDARY MATERIALS
Direction No. 65, Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under S501CA
REASONS FOR DECISION
Senior Member M Griffin QC
29 March 2018

By application dated 12 January 2018, the applicant seeks review of a decision of the respondent (Minister) dated 24 November 2017 to refuse the applicant’s application for a Partner (Residence) (Class BS) visa (visa) pursuant to s 501(1) of the Migration Act 1958 (the Act).
2.The application is made pursuant to s 500(1)(b) of the Act, which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of decisions of a delegate of the Minister under section 501 of the Act.
The issues before the Tribunal are whether the applicant meets the character test as defined in s 501(6) of the Act, and if he does not, whether the discretion in s 501(1) of the Act should be exercised to refuse to grant the applicant a visa.
PRELIMINARY ISSUES
There were a number of preliminary matters raised by the applicant during the course of the hearing. The first of these raises a fundamental question as to the propriety of the operation of section 501 of the Migration Act 1958 (The Act). It is argued that section 501 is an “abuse of power in its operation and ultra vires on the basis that it is a ‘back door method’ of giving power to the Minister” by the making of directions pursuant to section 499 of the Act without those directions having progressed in the normal course through the House of Representatives and Senate.
I reject the submission. The legislation intends by section 499 to allow the Minister to make various directions. It is not unusual for such provisions to be enacted in legislation in the form of subordinate legislation. I see no merit in this submission.
The second argument advanced is that pursuant to the provisions of section 501 of the Act, the Minister must personally make all relevant decisions pursuant to that section. Careful perusal of the section demonstrates that the section is, in fact, divided into two separate categories of decisions. The first subsections (1) and (2) are decisions which are made, according to the heading preceding those two subsections, by a Minister or Delegate. This is to be distinguished from decisions made under subsection (3) by a Minister alone. That much is clear by the heading immediately preceding subsection (3). On a proper construction of section 501 I am satisfied that in this applicant’s case the Minister was justified by legislation in exercising the power to delegate. (See also s. 496 of the Act)
A further contention raised by the applicant is that the provisions of subsection (7) sub paragraph (c) of section 501 should be read together with subsection (6). Relevantly that submission concerned the phraseology of subsection (6) and in particular the provision relating to past and present criminal conduct. The applicant’s contention is that “past and present criminal conduct must be read with subsection (7) to mean 12 months or an accumulation of 12 months or more criminal conduct”.
I have formed the view that there is a valid and real distinction between the phraseology used in those two different subsections. There is a deliberate and logical distinction made between the sections by using the distinctive and different phraseology. Subsection 6(c) does not require consideration of “criminal conduct of more than 12 months”. In my opinion the ordinary and natural meaning of the section is plain. I therefore reject the applicant’s argument.
HISTORY
The Minister contends that the applicant does not meet the character test, and that the correct and preferable decision is to exercise the discretion in s 501(1) of the Act to refuse to grant the applicant the visa.
The applicant is a 42 year old citizen of Nigeria who first arrived in Australia on 11 July 2012, aged 37, as the holder of a Student (Temporary) (Class TU) visa. He has departed Australia on three occasions for up to three months between 2012 and 2016.
On 19 August 2014, the applicant lodged a combined application for a Partner (Temporary) (Class UK) visa and Partner (Residence) (Class BS) visa on the basis of his marriage to Harriette Bangura, an Australian citizen. He was granted a Partner (Temporary) visa on 1 December 2015.
In December 2015, the applicant’s wife withdrew her sponsorship from the visa application.
The applicant’s National Police Certificate dated 26 February 2016, reveals the following:
·On 16 January 2014, he was found guilty of Drive with low range prescribed concentration of alcohol in the Fairfield Local Court, for which he was required to enter into an 18 month good behaviour bond.
·On 22 October 2014, he was convicted of Drive with low range prescribed concentration of alcohol in the Liverpool Local Court, for which he was fined $400 and his licence disqualified for 3 months;
·On 22 October 2014, he was convicted of Drive with middle range prescribed concentration of alcohol in the Liverpool Local Court, for which he was fined $600 and his licence disqualified for 12 months;
·On 20 January 2015, the applicant was convicted of Assault Occasioning Actual Bodily Harm (Domestic Violence) in the Liverpool Local Court, and, on appeal, he was sentenced to 9 months’ imprisonment, suspended upon entering a 9-month good behaviour bond.
The NSW Police records concerning the applicant show the following:
·On 5 October 2017 the applicant was charged with Deal with property proceeds of crime < $100,000; Goods in personal custody suspected being stolen (not m/v) and Knowingly deal with proceeds of crime; Participate criminal group contribute criminal activity; and
·On 21 February 2018 the applicant was charged with Dishonestly obtain financial advantage etc by deception; Dishonestly obtain financial advantage etc by deception.
These charges are unresolved. These charges have no probative value and consequently I will not take account of them in deciding the issues in this matter.
On 24 November 2017, the delegate decided under s 501(1) of the Act to refuse to grant a Partner (Residence) visa to the applicant.
On 9 January 2018, the Department sent a letter notifying the applicant of the delegate’s decision, by email to his representative. On the same day, the applicant was taken into immigration detention.
On 12 January 2018, the applicant applied to the Tribunal for review of the delegate’s decision.
ISSUES
The first issue for consideration in this review is whether the applicant meets the character test as defined in s 501(6) of the Act.
If the applicant does not meet the character test, the second issue for consideration is whether Tribunal ought to exercise the discretion available in s 501(1) of the Act to refuse to grant the applicant a visa.
LEGISLATIVE REGIME
Legislation
Pursuant to s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the Minister is not satisfied that the person passes the character test. The character test is defined in s 501(6) of the Act, which is relevantly in the following terms:
(6) For the purposes of this section, a person does not pass the character test if:
(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 would be allowed to enter or remain in
Australia, there is a risk that the person would:
(i)     engage in criminal conduct in Australia;
…
Decisions under the Act must be made in compliance with any written directions given by the Minister under the Act: s 499(2A). Relevantly, in considering a refusal under s 501, the decision-maker must have regard to Direction No 65 – Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (Direction 65).
Section 2, paragraph 6 of Annex A to Direction 65 provides guidance on the application of the character test and assessment of risk in relation to future conduct under s 501(6)(d). Paragraph 6(2) provides that the ground is enlivened if there is evidence suggesting that there is “more than a minimal or remote chance that the person, if allowed to enter or remain in Australia, would engage in [the specified] conduct.”
Section 501(1) of the Act contains a discretion by virtue of the word ‘may’. That is, if the applicant does not pass the character test, the decision-maker has a discretionary power to either refuse or grant the visa.
Ministerial Direction No. 65
Direction 65 provides that the discretion is to be approached within the framework of the principles in paragraph 6.3 of the Direction (the Principles), which are as follows (emphasis added):
1Australia 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.
2The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
3A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia.
4In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing consideration may be insufficient to justify not cancelling or refusing the visa.
5Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
6Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in Australia.
7The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Informed by the Principles, the decision-maker must take into account the primary considerations in Part B of Direction 65, in deciding whether to refuse a non-citizen’s visa. The primary considerations are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
The decision maker must also take into account other considerations insofar as they are relevant. These include but are not limited to:
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims; and
(d)Impact on Australian business interests.
APPLICANT’S CASE
The applicant asserted ultimately, that he was of good character and his previous convictions and other behaviour should not count against that good character. I will deal later with aspects of his evidence which he and his wife gave supporting this assertion. Evidence was given demonstrating the fact that the parties had been to relationship counselling. Furthermore, a number of people gave references attesting to his good character Bishop Kekere of the Apostolic Church Praise Center gave evidence concerning the applicant and his wife’s involvement in that church. He swore to the applicant’s good character. I am satisfied that these referees who have spoken on the applicant’s behalf, are well meaning. I, however give more weight to the objective evidence of the applicant’s character. Although I do not of course dismiss the evidence and statements of those referees to whom I have referred.
In summary, the respondent makes the following submissions: –
The Character Test
Given the applicant’s past conduct as revealed by his police and court records, as further addressed below, the Tribunal cannot be satisfied that the applicant is a person of good character, under s 501(6)(c).
Further, there is a risk that the applicant will engage in further criminal conduct in Australia and as such, he fails the character test under s 501(6)(d).
The Applicant was convicted of Assault Occasioning Actual Bodily Harm (Domestic Violence) for which he was sentenced to 9 months’ imprisonment, suspended upon entering a 9-month good behaviour bond. Domestic violence is conduct that is “fundamentally inconsistent with the standard of behaviour expected by the Australian community and usually weighs heavily against an individual being of good character.”
The assault took place in the context of an argument between the applicant and his wife and was fuelled by jealousy and alcohol. According to the sentencing remarks, the applicant punched his wife to the left side of her face, eye or cheek area causing substantial bruising, swelling and bumps to her face, and red marks and scratches to her forearm.
For the applicant, it was argued that he '“was never given a fair hearing” (Exhibit 1, G Documents, p103). However, the applicant was represented at the original hearing and on appeal. I will deal further with this matter below.
The respondent argues that the evidence indicates that there is a real and not insignificant risk that the applicant will engage in future criminal conduct of this kind.
It is contended that firstly, while the applicant pleaded guilty to the offence, in his subsequent statutory declarations and psychological reports submitted to the Department, he has claimed that it was his wife who attacked him first. On the contrary, the sentencing remarks indicate that the assault was unprovoked. Further, although the applicant claims to regret his offences and to have learnt his lessons, the psychological reports submitted by the applicant focus entirely on his own fears of domestic violence and allegations of his wife’s infidelity.
Secondly, the applicant’s NSW Police records reveal a pattern of domestic violence. The police records show that the applicant was involved in an altercation with his wife on 9 June 2017, in which his wife alleged that the applicant grabbed her around the throat and poked her in the eye. The applicant was unable to offer any explanation to the police as to how his wife sustained the injuries that the police observed. The records also indicate that on 12 September 2017, an apprehended violence order was issued against the applicant by his wife.
I accept that the applicant claims that he attended counselling at Anglicare and CatholicCare.
Credibility
Credibility has assumed some significance in evidence given in this hearing. In this case, the credibility issue relates to possible lies told in the course of evidence. Credibility may assume a spectrum of evidentiary importance from evading questions to deliberate lies. As to the latter, lack of credit may only properly be used against a witness’s interests if the lie which is told is probative of a fact in issue and logically connected to that fact in issue, that is a logical connection must exist between the lie and some fact in issue. There are a variety of reasons why a witness may be untruthful, for example, out of a sense of embarrassment, wishing to diminish involvement in the matter or out of concern for others or for many other reasons.
In my opinion, lack of credit when lies are an issue may only be relevant and used against the interests of a witness when it is demonstrated that there is a logical and relevant connection between the lie and the fact in issue and the lie is probative of a factual issue.
The Evidence
The applicant and his wife, Harriette Bangura, both gave evidence in the proceedings. Their evidence consisted mainly in the cross-examination by the respondent’s representative.
The wife gave evidence about their relationship generally, about the fact that she was undertaking a course of study in beauty therapy and that there was a son born of the relationship who is now about four years of age.
The principal aspects of her evidence however concerned the relationship with her husband and issues of domestic violence.
The first occasion for which the applicant was sentenced to 9 months imprisonment wholly suspended occurred on 18 November 2014.
The facts and circumstances which I accept are those placed before the original sentencing court. The applicant in fact was legally represented and did not contest these facts at the original hearing or on appeal.
As to the offence on 18 November 2014, I do not accept as the husband asserted in his evidence, that he was of limited criminal responsibility and further that his wife bit him on the neck after he had grabbed her. The evidence which he gave on this point is completely unbelievable and amounts, in my opinion, to deliberate lies attempting to diminish his responsibility. Photographs were taken by the police of a limited injury to his hand. Police Officers neither saw nor took photographs of an injury to his neck which he explained in evidence was significant. It is impossible to believe the police failed to notice the bite mark to the neck if it had occurred. No mention was made of this supposed biting by the wife to the police or at the time of his sentencing. It would have been highly relevant to the circumstances of the entire transaction and therefore to his ultimate sentence. The applicant was, as I have said, legally represented.
The wife also gave evidence of a second incident to which the police were called on 9 June 2017. Originally she had complained that the applicant assaulted her by grabbing her around the throat and poking her eye. She later retracted her statement and the matter did not proceed any further. An Apprehended Violence Order however was issued against the applicant. Sensationally, in evidence before this Tribunal, the wife said that she had in fact lied to the police and that she had been assaulted not by the applicant but by a lodger in their house earlier in the day. The explanation given by the wife and the applicant, whose evidence by the time of the Tribunal hearing neatly coincided, was risible and unbelievable. I do not accept either the applicant or his wife about the circumstances of this incident as described in evidence before the Tribunal. I am satisfied that the truth of the matter was revealed to the police in a complaint by the wife about her husband at the time the police were called. While I cannot make any finding as to the reasons why the wife lied about the incident, I am nonetheless satisfied that the applicant did assault his wife in the way she originally described to the police.

The drink driving offences disclosed not only show a disregard for the safety of Australian citizens and others who are road users and pedestrians, but importantly display a complete disregard for important laws meant to protect citizens. The fact that three offences were committed, each one escalating in seriousness, displays a degree of contempt for the operation of the law and is portentous of increasing risk of the commission of other offences not limited merely to driving offices.
I accept that the applicant committed the serious assault for which he was sentenced to 9 months imprisonment, wholly suspended. I have further found to a high degree of satisfaction that the applicant committed a further assault on his wife on 9 June 2017 by grabbing her around the throat and poking her in the eye. He has contemptuously lied about this in evidence. He has lied, I find, about the circumstances surrounding the incident for which he was convicted on 18 November 2014. These lies were told on oath. It leads me to form a view that the applicant is disdainful of the legal processes in this country which processes are fundamental to the regulation of our society. This suggests he and the Australian community are at risk of the applicant committing further and serious offences.
In this case, the applicant’s general credit worthiness is intimately connected to the assertion that he is of good character and passes the character test.
I am satisfied that the applicant has deliberately lied before this Tribunal in affect to diminish his criminal conduct to his wife, and to attempt to subvert these proceedings and provide false evidence in these proceedings, and to attempt to ensure that he is given a Visa. I will have more to say about the ramifications of these lies below.
SUMMARY: CHARACTER TEST
In summary, the lies told by the applicant go directly to his assertion of good character. The lies have been made as an attempt either to disguise his real (bad) character and/or have been made in order to bolster and present himself as a person of good character when, in fact, he is not.
Furthermore the features of the evidence which I have accepted, that is the unprovoked assault on his wife on 18 November 2014 and the assault on his wife on 9 June 2017; evidence of police attending the couples’ home in relation to a domestic incident on 4 January 2014, not only disclose a fractious domestic relationship but one that to my mind is proven to a high standard to be seriously domestically violent.
I will include here also the evidence that the wife gave that she withdrew her sponsorship for a Visa in 2015 in respect of the applicant because she believed he had left Australia and she would not likely see him again. This was later contrasted with other evidence she gave that she had been in contact with him by telephone.
On the basis of the entirety of the evidence, I am satisfied that the applicant fails the character test pursuant to both subsection (6)(c) and independently subsection (6)(d)(i).
DISCRETIONARY ASPECTS
I will discuss the discretionary aspects relating to Visa approval in light of Direction 65.
The Protection of the Australian Community
Pursuant to paragraph 11.1 of Direction 65, this factor involves consideration of (a) the nature and seriousness of the applicant’s conduct to date and (b) the risk to the Australian community should he commit further offences or engage in other serious conduct.
In my opinion, the nature and seriousness of the applicant’s criminal conduct weighs in favour of refusal of the visa. The offences involved serious incidents of domestic violence that were found to be unprovoked and three drink driving offences to which I have already referred.
The sentencing Magistrate on 20 January 2015 found that the fact that the applicant punched his wife’s face aggravated the seriousness of the offence, and also had regard to the assault being (a) unprovoked, (b) within the near presence of the child insofar as he had been put to bed and was under the same roof, (c) occurred within the home of the victim where she was entitled to feel safe, and (d) was motivated by nothing other than jealousy. The Magistrate considered the offence to be a “very serious example of an assault indeed” and that a sentence of imprisonment must be imposed.
Risk to the Australian Community
In assessing whether the applicant represents an unacceptable risk of harm to the Australian community, regard must be had to paragraph 11.1.2 of Direction 65, which provides that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Decision-makers must have regard to, cumulatively, (a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct, and (b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the applicant reoffending.
Domestic violence, and the harm that would be caused if it were to be repeated, is sufficiently serious that any likelihood that it may be repeated is unacceptable. The government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens, and that there is a low tolerance of criminal conduct by visa applicants (11.1(1)).
The protection of the Australian community weighs in favour of refusing the visa.
The Expectations of the Australian Community
The Australian community has come to regard domestic violence seriously. An informed assessment of this expectation by the Tribunal must be considered in the light of a rational and reasonable Australian community expectation.
Furthermore, I apprehend that, in the Australian community, there is low tolerance for criminal conduct by visa applicants and people who have not been in Australia for most of their life or from a very young age.
Best Interests of Minor Children
The applicant has a four year old son in Australia, for whom he has been the sole carer while his wife attended TAFE. The relationship between parent and child is of deep significance and consequence, especially to the child. This consideration weighs in favour of the applicant, and should be given due weight.
Other Considerations
Non-refoulement obligations
The applicant claims that it is unsafe in Nigeria and that there are security problems, an unstable economic situation, and a lack of employment.
Having regard to my findings of credit against the applicant, I am not prepared to accept his assertions.
Impact on family members, victims, and Australian business interests
The applicant’s wife and child are Australian citizens residing in Australia. While the applicant claims that refusal of his visa would significantly impact his wife’s ability to further her education and increase her future employment prospects.
I note the applicant’s wife is also a victim. Overall, little weight should be given to this consideration for she has stated in evidence that she wants her husband to live with her.
CONCLUSION
The applicant is a visa applicant who has committed serious offences in Australia, and given the nature of his past and present conduct and the likelihood of reoffending, he fails the character test. Further, the principles and considerations in Direction 65 in the overall assessment clearly weigh in favour of the refusal of the visa.
For the above reasons, the delegate’s decision to refuse the visa should be affirmed.

I certify that the preceding 71 (seventy -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

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Associate
Dated: 29 March 2018

Date(s) of hearing: 13 and 14 March 2018

Solicitors for the Applicant: H Ford, Hugh Ford Legal Practice

Solicitors for the Respondent: M Donald, Sparke Helmore

[2018] AATA 690

29 March 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Date(s) of hearing:	13 and 14 March 2018
Solicitors for the Applicant:	H Ford, Hugh Ford Legal Practice
Solicitors for the Respondent:	M Donald, Sparke Helmore