Omar Kamali and Minister for Immigration and Citizenship
[2012] AATA 368
•18 June 2012
[2012] AATA 368
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1366
Re
Omar Kamali
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey and Dr W Isles
Date 18 June 2012 Place Sydney The decision under review is affirmed.
.......[sgd].................................................................
Senior Member J F Toohey and Dr W Isles
CATCHWORDS
MIGRATION – visa refusal – applicant convicted of sexual assault of 13-year old girl – substantial prison sentence – applicant an adult when arrived in Australia – offences committed within very short time of arrival – limited family or other ties in Australia – substantial family ties in Lebanon – applicant’s four-year old daughter born in Australia after he was taken into custody – limited relationship with daughter – applicant now divorced from former wife – consideration of obligations under the Convention on the Rights of the Child – child’s interests in applicant remaining in Australia outweighed by other considerations – decision under review affirmed
LEGISLATION
Migration Act 1958 ss 501(1), 501(6) and 501(7)
INTERNATIONAL LAW
Convention on the Rights of the Child (Opened for signature 20 November 1989) 1577 UNTS 3 (entered into force 2 September 1990)
CASES
Rosson v Minister for Immigration and Citizenship [2011] FCA 194
Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568
SECONDARY MATERIALS
Department of Foreign Affairs and Trade, Smart Traveller: Lebanon, for Immigration and Citizenship, Direction No. 41 - Visa refusal and cancellation, 2009
REASONS FOR DECISION
Senior Member J F Toohey and Dr W Isles
18 June 2012
BACKGROUND
Mr Omar Kamali is a 39-year old citizen of Lebanon. He visited Australia in 2004 and 2006. In August 2007, he arrived on a prospective marriage visa and has been here since. In September 2007, he married an Australian citizen. They have a daughter who is now five years old. They divorced in 2010.
On 27 November 2007, Mr Kamali was arrested on charges relating to the sexual assault of a 13 year old girl. He has been in custody since. In August 2009, he was convicted and sentenced to seven-years-and-six-months imprisonment with a non-parole period of five years. He is currently in Long Bay Correctional Centre. His earliest release date is 26 November 2012.
On 23 April 2008, Mr Kamali applied for a Partner (Temporary) (Class UK) and a Partner (Residence) (Class BS) visa. For reasons which are not clear but which do not matter here, his application was not determined until 30 March 2012. On that date, the Minister for Immigration and Citizenship (the Minister) refused to grant Mr Kamali a visa on the ground that he did not pass the character test in s 501(6) of the Migration Act 1958 (the Act) . Mr Kamali seeks review of that decision.
RELEVANT LEGISLATION
By s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that he or she passes the character test.
By s 501(6)(a), a person does not pass the character test if he or she has a substantial criminal record. For the purposes of the character test, a person has a substantial criminal record if he or she has been sentenced to a term of imprisonment of 12 months or more: s 501(7).
THE ISSUE
There is no question that, by virtue of being sentenced to several terms of imprisonment of 12 months or more, Mr Kamali does not pass the character test in the Act. The discretion in s 501(1) is therefore enlivened. We have to determine whether we should exercise the discretion in Mr Kamali’s favour.
HOW IS THE DISCRETION TO BE EXERCISED: RELEVANT CONSIDERATIONS
The discretion in s 501(1) must be exercised in accordance with Direction No. 41 - Visa refusal and cancellation (Direction 41) made by the Minister on 3 June 2009. Direction 41 is made pursuant to s 499 of the Act and is binding on the Tribunal: ss 499(1) and (2a).
The nature of any harm that a person may cause to the Australian community and the risk of that harm occurring are central considerations in the exercise of the discretion: cl 5.2.
Insofar as they are relevant in the particular case, a decision-maker must take into account four primary considerations:
(a)the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b)whether the person was a minor when they began living in Australia;
(c)the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct;
(d)relevant international law obligations, including but not limited to: the best interests of the child, as described in the Convention on the Rights of the Child; and non-refoulement obligations under the Convention and Protocol Relating to the Status of Refugees.
Other considerations, although not primary, may be relevant and, if so, must be considered. Generally, however, they should be given less weight than that given to primary considerations: cll 11(1) and (2). Other considerations include:
(a)family ties, the nature and extent of any relationships;
(b)the person’s age;
(c)the person’s health;
(d)any links to the country to which the person would be removed;
(e)hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia;
(f)level of education; and
(g)whether the person had been formally advised in the past about conduct that brought them within the deportation or character provisions in the Act.
THE PROTECTION OF THE AUSTRALIAN COMMUNITY FROM SERIOUS CRIMINAL OR OTHER HARMFUL CONDUCT, PARTICULARLY CRIMES INVOLVING VIOLENCE
Direction 41 requires that due consideration be given to the objectives of the Act to regulate, in the national interest, the coming into and presence in Australia of non‑citizens and, in this regard, to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious misconduct by non-citizens: cll 5.1(2) and 10.1.
Factors relevant to assessing the level of risk of harm to the community of a person’s continued stay in Australia include the seriousness and nature of the relevant conduct and the risk that it may be repeated: cl 10.1(2).
Seriousness of the offences
Clause 10.1.1 of Direction 41 states:
1Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community.
2The following are examples of offences and conduct that are considered serious:
…
(b)all offences perpetrated against a child (particularly sexually based offences)
On 18 May 2009, Mr Kamali pleaded guilty to the following offences committed against a 13-year-old girl on 27 November 2007:
Count 1:
15. Detaining the victim with the intent to obtain an advantage, namely, to have the opportunity to commit acts of a sexual nature upon her.
Maximum penalty: 14 years imprisonment; no standard non-parole period.
Counts 2 & 3:
Indecent assault upon a child under 16 years of age.
Maximum penalty of seven years imprisonment; standard non-parole period of five years.
Count 4:
Sexual intercourse with the victim, who was under 16, without her consent, knowing she did not consent.
Maximum penalty 20 years imprisonment; standard non-parole period of 10 years.
Sentencing Mr Kamali in the District Court of New South Wales on 31 August 2009, Judge Sides noted that he had originally pleaded guilty to two counts but not guilty to others, some of which the prosecution apparently did not pursue. At a trial in October 2008, his counsel was granted leave to withdraw, by which stage Mr Kamali had started to give evidence. Mr Kamali’s subsequent application to withdraw his guilty pleas was refused. The matters eventually came on for trial on 18 May 2009. By the time Mr Kamali pleaded guilty to agreed facts, the victim had already been cross-examined.
The sentencing remarks show that the victim was walking down a lane on her way home from school when she heard Mr Kamali calling from his house that his friend was unconscious and he could not ring an ambulance. Out of concern, she followed him into his house whereupon he locked the door and immediately started kissing and touching her. He removed some of her clothes and sexually assaulted her, including twice penetrating her with his finger. He ignored her attempts to resist him and, when she tried to leave, barred her way and kept pushing her back onto the bed. Eventually, he opened the front door and she was able to escape. When arrested later that day, Mr Kamali denied that he had detained or sexually interfered with her.
Judge Sides was satisfied beyond a reasonable doubt that the offences were premeditated and that Mr Kamali intended to prey upon a vulnerable victim. While there was no evidence that the offences were the subject of extended planning, he was satisfied that Mr Kamali knew that the girl was a student and “had an appreciation of her age”. He said “Clearly offences of this type, committed in one's own neighbourhood, would be terrifying for someone so young and its impact is likely to be long-lasting”.
Judge Sides considered that counts one, two and three fell “within the middle of the range of objective seriousness for offences under their respective provisions”; count four fell “below the middle of the range of objective seriousness”. He gave weight Mr Kamali’s absence of prior convictions. He decided against imposing the standard non-parole period because of Mr Kamali’s guilty pleas and because his time in custody would be made more burdensome by his limited English and ability to effectively participate in rehabilitation, therapeutic and educational programs, and possibly, work. He found no evidence that Mr Kamali is a paedophile and believed, in all the circumstances, that his prospects of rehabilitation and not reoffending were good.
Risk of the conduct being repeated
A person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending: cl 10.1.2(1). Clause 10.1.2(2) provides that the following factors are to be considered as particularly relevant to this assessment:
(a)a recent history of convictions, which should be considered as indicating an increased risk of re-offending;
(b)evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment;
(c)evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.
A copy of a police certificate from Tripoli in Lebanon, where Mr Kamali grew up, shows that, at 20 February 2007, he had never been convicted of an offence in that country. The certificate has not been verified but I accept that Mr Kamali had no convictions when he entered Australia. He had no convictions prior to the offences which are the subject of these proceedings, although that can hardly be said to be in his favour, given they were committed just over three months after he arrived.
An Immigration Report prepared by the New South Wales Probation and Parole Service on 20 December 2011 shows that, although Mr Kamali had claimed at an interview with the Probation and Parole Officer “to have occurred no misconducts during his time in custody” [sic], he had incurred “five institutional misconduct charges” as follows:
April 2008:
Fail to Comply with Correctional Centre Routine; issued with the reprimand and caution.
January 2011:
Fight or Other Combat; issued with four days in cells.
March 2011:
Intimidation; issued with 14 days off buy-ups.
April 2011:
Disobey Direction; locked in his cell.
July 2011:
Unlaw Del/Rec Art Inmate; locked in his cell.
The report also notes that, in August 2009, Mr Kamali was suspected of “inappropriate sexual behaviour towards younger inmates”. No evidence about these maters was put before the Tribunal. In particular, there is no information about the “suspected inappropriate sexual behaviour” other than that police were called to investigate and interview Mr Kamali regarding an alleged sexual assault on his cellmate in June 2008 but the investigations did not lead to a conviction. We therefore disregard that matter for present purposes. We cannot reach any conclusion about the seriousness of the other matters but it is notable that, in 2011, Mr Kamali incurred four different disciplinary charges. His record does not count in his favour.
Participation in CUBIT program
The task of assessing the risk that a person will reoffend is particularly difficult in the case of a single offence and more so when the person has been in custody since the offence. In such cases, there is often little more than a person’s reassurances to go on.
Mr Kamali has been participating in the Custody Based Intensive Therapy sex offenders program (CUBIT) at Long Bay Correctional Centre since February 2012. CUBIT is a residential therapy program for men who have sexually abused adults or children. According to Anna Woodrow, the therapeutic manager of CUBIT who gave evidence before the Tribunal, the program works on an open group format; participants are in treatment sessions three days a week for two-and-a-half hours per session, with treatment targeted to individuals’ needs so that program content varies accordingly.
Ms Woodrow gave evidence that Mr Kamali has had some difficulty engaging in treatment and understanding concepts because of his lack of English language skills. For this reason, he had been assessed as needing up to 12 months in CUBIT, longer than the 6 to 10 months the program takes for most individuals.
Mr Kamali gave evidence, which we accept, that he has been asking to participate in CUBIT since 2009. Ms Woodrow gave evidence that there is a waiting list. Participants are given priority based on their release date and, as Mr Kamali's earliest release date is November 2012, he would have had to wait some time.
Unfortunately for Mr Kamali, the fact that he is only part way through CUBIT means that only limited information is available about his progress and the likely success of the program. A comprehensive treatment report will not be available until four to six weeks after he completes the program. In the meantime, the evidence is that he is progressing well and has attended all required sessions; he is compliant and motivated, and is engaged in the program; he has developed an ability to make relationships and is aware of the psychological issues he needs to deal with. However, while Ms Woodrow said these are positive signs, she could not say more, or comment on his prospects for rehabilitation.
Evidence of Dr Banks
Dr Gary Banks, psychologist, conducted a clinical forensic evaluation of Mr Kamali at Long Bay Correctional Centre in May 2012 at the request of the Minister. Dr Banks has been in practice for approximately 26 years and has spent most of the past 20 years conducting assessments for courts and tribunals. He provided a written report of his assessment and gave oral evidence.
As well as his clinical interview, Dr Banks assessed Mr Kamali according to a number of “well-known forensically-accepted measures of personality and recidivist behaviour”. In Dr Banks’ view, the results of this comprehensive assessment suggest that Mr Kamali would pose a moderate level of risk of harm to the Australian community if permitted to remain in Australia. In particular, Dr Banks gave weight to Mr Kamali’s apparent lack of remorse or insight into the effect of his conduct on the victim.
We have some difficulty with aspects of Dr Banks’ evidence. His report includes an account of an incidental conversation with a female prison officer, the contents of which were extremely adverse to Mr Kamali but which Dr Banks told us he did not ask Mr Kamali about. We disregard that part of the report. His report also contains observations that, with respect, are, at best, speculative. That said, we accept that the tests which Dr Banks administered are well-recognised and their results should not be ignored.
Dr Banks’ observations about Mr Kamali’s apparent lack of remorse appear to be borne out in the number of documents before the Tribunal. They include a Statutory Declaration by Mr Kamali's former wife (incorrectly dated 21 March 2007 but clearly written in March 2008) addressed to the Department of Immigration and Citizenship, and a further Statutory Declaration made by her on 14 April 2008.
It is apparent from her statements that Mr Kamali had told his then wife that he did not touch the victim, he felt uncomfortable with her in his house and she left quickly; he did not sexually assault her and was confident he would be proven innocent. His then wife described the victim as “a manipulative cunning girl for her age” who had evidently had past sexual experiences and “had other people's DNA on her body”.
Mr Kamali conceded that his former wife learned some of this information from him but maintained she also learned it from sitting in court during his trial. Considering the detailed content of the statements, we think it probable that his former wife was recounting what he told her. It is understandable that he might minimise his offences to his wife but there is little other evidence that he has had any feeling for his victim until recently.
In a letter to the Department of Immigration and Citizenship in March 2010, Mr Kamali stated that he is now a different person; he feels remorse and contrition, and empathy for his victim and has insight into his offending behaviour; he intends “to consecrate” his life to being a normal person and looking after his daughter. He gave evidence before the Tribunal that he now appreciates the gravity of his offences; he realises he has done something very bad; his victim did not deserve what he did to her and he would apologise to her if he could.
In a statutory declaration made on 9 December 2010, Mr Kamali described the incident as follows:
I was at my work and I saw a girl she sat next to me at work. She asked me for a cigarette and I tell her let's go, come in my house. I then touched her indecently, she bitched for two or three minutes and then she left.
Mr Kamali gave evidence, which we accept, that he did not write this statement himself but made it through an interpreter to a welfare officer who was helping him with his application. In those circumstances, it may not fairly reflect his attitude. Nevertheless, it suggests that he was still minimising the offence as late as December 2010.
Mr Kamali’s realisations about his behaviour have come late in the day and, overall, he has demonstrated little remorse or feeling for his victim.
Evidence of Mr Kamali’s sister
Mr Kamali’s sister is an Australian citizen who has lived here for 30 years. She gave evidence that his offence is out of character. She is willing to support him and have him live with her if he is allowed to stay in Australia.
Mr Kamali last saw his sister when she visited him in jail in 2008. Since then, both her husband and son have passed away. She gave evidence that, as a result, she has been depressed and unable to visit Mr Kamali in gaol since 2008. She wants him to remain in Australia as he is now her only family here other than her daughter.
We accept that the witness genuinely cares for her brother and would accept him into her home.
Written statements in support
In support of his application, Mr Kamali has submitted letters from three inmates who are also currently participating in the CUBIT program. They speak well of him but, in the circumstances and the context of their relationship with Mr Kamali, we attach no weight to them.
Consideration
There is no question that the offences for which Mr Kamali was convicted are serious. Any offence perpetrated against a child, in particular, sexually-based offences, is considered serious. Moreover, offences involving violence or the threat of violence, are not only serious within the meaning of Direction 41, they are singled out as “of special concern” and “especially abhorrent”.
Taking into account the seriousness of Mr Kamali’s offences and the lack of any reliable evidence of his rehabilitation, we find this consideration weighs strongly against exercising the discretion in his favour.
WHETHER THE PERSON WAS A MINOR WHEN THEY BEGAN LIVING IN AUSTRALIA
The relevance of this consideration is that, in some circumstances, it may be appropriate to the Australian community to accept more risk where the person concerned has, in effect, become part of the Australian community owing to their having spent their formative years, or a major portion of their life, in Australia: Direction 41, cl 5.2(4).
In Rosson v Minister for Immigration and Citizenship [2011] FCA 194, Rares J considered whether the fact that a person was an adult when they began living in Australia could only be given favourable or neutral, but not adverse, consideration. He concluded (at 21-22) that not only was a decision-maker entitled to take into account the fact that a person who arrived in Australia as an adult did so with the knowledge, duties and responsibilities of an adult, a decision-maker was bound to have regard to that consideration by force of clause 10(1)(b).
Mr Kamali was 34 years old when he arrived in Australia. He had completed a university degree in Lebanon, been in the army and been employed by an international company in Lebanon from 2001 until 2006.
We find this consideration weighs heavily against exercising the discretion in Mr Kamali’s favour.
THE LENGTH OF TIME THAT THE PERSON HAS BEEN ORDINARILY RESIDENT IN AUSTRALIA PRIOR TO ENGAGING IN CRIMINAL ACTIVITY OR OTHER RELEVANT CONDUCT
Clause 10.3 (1) states:
Reflecting the fact that the longer a period of residence in Australia the greater the likelihood of significant ties to the Australian community, more favourable consideration is to be given the longer the person has ordinarily been resident in Australia prior to engaging in criminal activity or activity that bears negatively on the character.
Note: For example, a period of more than 10 years of residence in Australia prior to a person engaging in criminal activity or activity which bears negatively on the person's character would be an important consideration.
Mr Kamali had been in Australia for approximately three months at the time of the offences. At the time, he and his wife had been arguing and he was living at a friend's house for a few days.
In Rosson (above), Rares J also considered whether cl 10.3 prevented the Tribunal from giving unfavourable, as opposed to favourable or neutral, consideration to the length of time an applicant had been ordinarily resident in Australia prior to the conduct in question. He concluded (at 23) that it did not:
Indeed, common sense would suggest that it might be a particularly relevant factor that a person had embarked upon criminal activity very shortly after arriving in this country, in determining whether it was in the national interest that that person be allowed to remain here with a visa granted by the government of the country under the Act.
The very short time that Mr Kamali had been in Australia before he committed serious sexual offences against a child weighs heavily against exercising the discretion in his favour.
RELEVANT INTERNATIONAL LAW OBLIGATIONS
Australia has international obligations as a signatory to international agreements including the Convention on the Rights of the Child (CROC). If there is a child in Australia who is potentially affected by a visa refusal, decision-makers must have regard to that child’s best interests as described in the CROC.
Under Australian law, it is generally presumed that child's best interests will be served if the child remains with its parents (and see cl 10.4.1(4)). Direction 41 provides that, in considering the best interests of the child, the following factors are to be considered
(a)the nature of the relationship between the child and the person;
(b)the duration of the relationship, including the number and length of any separations and reasons for the separation;
(c)the extent to which the person is likely to play a full parental role up to the child's eighteenth birthday;
(d)the child's age;
(e)whether the child is an Australian citizen, permanent resident or New Zealand citizen;
(f)the likely effect that any separation from the person would have on the child;
(g)the existence of other persons who already fulfil parental role in relation to that child;
(h)the impact of the person's prior conduct and whether that conduct has, or has had, negative or positive impact on the child;
(i)the time that the child is spent in Australia;
(j)any court orders relating to parental access and carer arrangements;
(k)any known wishes expressed by the child;
Other factors concern the likelihood that the child would accompany the person overseas and what effect circumstances in the other country might have on the child.
Mr Kamali’s daughter was born in 2008, after he was taken into custody. He last saw her when his former wife visited him with their daughter in December 2009. He gave evidence that he speaks to his daughter each day by telephone and she asks when he is coming home. He tells her he is working in Lebanon and will be home when he can.
In 2010, Mr Kamali's former wife initiated a divorce. Although he maintains that she still loves him and they would reconcile after his release, written statements by his wife which are in evidence suggest that is highly unlikely. By Mr Kamali’s own evidence, she refuses to speak with him and allows telephone contact with their daughter as long as someone in the gaol makes the call so that she does not have to speak with him. She has written that she is concerned that, if released, he would attempt to take their daughter and leave the country with her. Whether she believes that is true or not, any prospects of reconciliation appear remote, especially now they are divorced.
We accept that Mr Kamali loves his daughter and feels quite desperate at the thought of not seeing her and being part of her life. However, in considering Australia’s obligations under CROC, we are concerned with his daughter’s best interests.
The likelihood that, if released, Mr Kamali would have more than access visits with his daughter from time to time appears remote. We accept he has a relationship with her by telephone but, given her very young age, it is unlikely to be very meaningful to her. Given that he and her mother are now divorced, there is little if any chance that he would play a full parental role to his daughter up to the age of 18. It is hard to gauge the likely effect on her of his removal but her very young age and the fact that she has not seen him since she was 18 months old reduces the likelihood that it would be seriously detrimental.
Having said that, the Minister concedes, and we agree, it would be in his daughter’s best interests for Mr Kamali to remain in Australia so that his daughter can have a relationship with him in person and not just by telephone.
Other international obligations
Clause 10.4 provides that, where relevant, any non-refoulement obligations, including under the Convention relating to the Status of Refugees (Refugees Convention), must be considered. Other relevant international obligations are found in the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT): cl 10.4.3.
Mr Kamali says it would be very difficult for him to return to Lebanon. He says that conditions in Lebanon, and in Tripoli in particular, are uncertain and dangerous and he fears returning there. He did not elaborate.
The Department of Foreign Affairs and Trade travel advisory for Lebanon for June 2012 advises Australians to reconsider their need to travel to Lebanon generally and not to travel to certain parts including the north-eastern suburbs of Tripoli: >
Mr Kamali was born in Tripoli and lived there until coming to Australia. He is the youngest of ten children, one of whom is a step-sister from his father's second marriage. Both of his parents, who divorced some years ago, have passed away since he has been in custody.
It is evident that conditions in Lebanon are extremely difficult for many people. However, Mr Kamali’s sister gave evidence that none of the family in Lebanon have experienced any trouble. She said they all have “a very good life” there and are “comfortable”. She did not think Mr Kamali would have any trouble there and all of their brothers and sisters are there and “know him”.
We have no reason to doubt the evidence of Mr Kamali’s sister. There is no reason to think that he faces persecution within the meaning of the Refugees Convention, or violation of his rights under the ICCPR, or torture contrary to CAT. Based on this evidence, we are satisfied that none of Australia’s international obligations would be breached by his removal.
OTHER CONSIDERATIONS
Consideration of family ties and the nature and extent of any relationships, any links to the country to which the person would be removed, and hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia, are related and tend to overlap.
Mr Kamali’s only close relatives in Australia are his daughter, sister and niece. Given the short time he was in Australia before being taken into custody, he did not form friendships or relationships other than with his former wife. Other than his daughter, sister and niece, he has no ties of any substance in Australia. The rest of his immediate family are in Lebanon. Both of his parents, who divorced some years ago, have passed away since he has been in custody.
According to the Immigration Report, Mr Kamali had “an uneventful family background with positive familial relationships”. After finishing school, he undertook one years’ compulsory military service. He was in the army and the air force until 2000, although his evidence about this period is quite vague. At some point, he completed a marketing degree at university and, from 2001 until 2007, he was employed with an international company in Tripoli. He came to Australia intending to transfer to the company's Sydney branch but his lack of English was an obstacle and he found work in a fruit shop where he was working at the time of the offences.
Mr Kamali says it would be very difficult for him to return to Lebanon and he would be unable to survive there. We accept it would be difficult for him but it is apparent, from his oral evidence, that the principal difficulty would be separation from his daughter. There is no reason to think that he could not find employment in Lebanon. He was there until the age of 34, and has been away only five years. He speaks the language. He is university-educated and apparently had a good job for several years before coming to Australia. He would have the support of his large family.
We accept it would cause some hardship to Mr Kamali’s sister and daughter if he is removed from Australia. We accept it would cause him hardship to be separated, possibly permanently, from his daughter. None of the other considerations that we are required to take into account weigh in his favour.
We note that Mr Kamali had not been warned prior to the letter sent to him on 25 February 2011 notifying him of the intention to refuse his visa application and so that consideration does not count against him.
CONCLUSION
Of the primary considerations we are bound to take into account, the first and third weigh heavily against exercising the discretion in Mr Kamali’s favour, and the second weighs against him. Only the fourth consideration, the best interests of his daughter, weighs in his favour.
Having identified that it is in Mr Kamali’s daughter’s best interests that he remain in Australia, we have to “assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of [her] best interests”: Wan v Minister for Immigration and Multicultural Affairs[2001] FCA 568 at [32]. In our view, the cumulative effect of the other primary considerations outweighs his daughter’s best interests given the nature of their relationship to date and her very young age. Nothing about the other considerations changes that assessment.
We have some sympathy for Mr Kamali because he has been trying to participate in the CUBIT program for some time but, because his earliest release date is not until November 2012, he was only accepted into the program in February 2012. It is possible that, with time to complete the program, he might have received a favourable assessment which would count in his favour. On the evidence before us, however, we are not satisfied that the discretion in s 501(1) should be exercised in his favour.
We affirm the decision under review.
I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey and Dr W Isles. .......[sgd].................................................................
Associate
Dated 18 June 2012
Date(s) of hearing 12 June 2012 Applicant In person Counsel for the Respondent Mr T Reilly Solicitors for the Respondent Ms C Crotty, Minter Ellison
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