Re Ayache and Minister for Immigration and Border Protection
[2018] AATA 310
•22 February 2018
Ayache and Minister for Immigration and Border Protection (Migration) [2018] AATA 310 (22 February 2018)
Division: General Division
File Number(s): 2017/7186
Re:Khaled Ayache
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date:22 February 2018
Place:Melbourne
The Tribunal decides to:
affirm the decision of the respondent dated 29 November 2017 to refuse the applicant’s application for a Partner (Temporary)(Class UK) and Partner (Residence)(Class BS) visa under s 501(1) of the Migration Act1958.
...................[sgd]...................................................
S A FORGIE
Deputy President
MIGRATION – refusal to grant visa as failed character test because has substantial criminal record – decision affirmed
Legislation
Acts Interpretation Act 1901
Legislation Act 2003
Migration Act 1958 ss 5, 29, 30, 31, 36, 116, 499, 501,
Migration Regulations 1994 r 2.43(oa)
Cases
Alexandra Private GeriatricHospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265
Brennan v Comcare [1994] FCA 1147; (1994) 50 FCR 555; 122 ALR 615; 19 AAR 542
Damjanovic & Sons Pty Ltd v The Commonwealth [1968] HCA 42; (1968) 117 CLR 390
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299; 60 ALJR 560
Minister for Immigration v Jia Legeng [2001] HCA 17; 205 CLR 507; 75 ALJR 679; 65 ALD 1; 178 ALR 421
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234; 56 ALD 349
Re Alexandra Private Geriatric Hospital Pty Limited (Trading As Alexandra Private Nursing Home) v Neal Blewett (Who Is Sued As the Commonwealth Minister of Health) and Anor [1985] FCA 242; (1985) 7 FCR 341
Re Maikantis and Minister for Immigration and Border Protection [2018] AATA 40
Re Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690
R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45; 27 ALR 321; 54 ALJR
Uelese v Minister for Immigration and Border Protection [2016] FCA 348; (2016) 248 FCR 296
Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492
Williams v Minister for Immigration and Citizenship [2013] FCA 702; (2013) 136 ALD 299
YNQY and Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No.65 made under s 499 of the Migration Act 1958
REASONS FOR DECISION
Deputy President SA Forgie
On 29 November 2017, a delegate of the Minister for Immigration and Border Protection (Minister) refused Mr Khaled Ayache’s application for a Partner (Temporary)(Class UK) and a Partner (Residence)(Class BS) visa (Partner visa) under s 501(1) of the Migration Act 1958 (Migration Act). The delegate did so on the basis that Mr Ayache had not passed the character test under s 501(6). There was no dispute between the parties that Mr Ayache had not passed it because he had a substantial criminal record within the meaning of ss 501(6)(a) and 501(7)(d) of the Migration Act in that he had been sentenced to two or more terms of imprisonment where the total of those terms is 12 months or more. The Department of Immigration and Border Protection (Department) advised Mr Ayache of the refusal in a letter dated 30 November 2017. On 4 December 2017, Mr Ayache applied to the Tribunal for review of the Minister’s decision. I have decided to affirm it and now give my reasons.
BACKGROUND
Family and immigration status
Mr Ayache and his wife, Mrs Samaher Ayache, first met approximately 28 years ago when she and her family were in Lebanon visiting relatives. At the time, Mr Ayache lived with his family in a village some 30 minutes’ drive from Lebanon’s border with Syria. Mrs Ayache was born in Australia and has lived her whole life in Australia. They married according to Sharia Law on 6 September 2006 in Lebanon and she sponsored her husband to come to Australia. He came on 13 September 2007 as the holder of a Prospective Marriage (Temporary)(Class TO) visa and has not left since. On 28 October 2007, they married in Australia. They now have three children, the eldest of whom, a son, is almost ten years of age. Their elder daughter is five years old and their younger daughter is two.
Mr Ayache’s Prospective Marriage (Temporary)(Class TO) visa was only valid until 31 May 2008. In order to remain lawfully in Australia, he needed to apply for a further visa before that date but he did not do so until 7 May 2009 when he applied for a Partner visa. Mrs Ayache was his Sponsoring Partner. A Partner visa is a permanent visa permitting its holder to remain in Australia. On 9 February 2010, a delegate of the Minister granted Mr Ayache a Partner (Temporary)(Class UK) Subclass 820 visa (Temporary Partner visa). Mr Ayache did not give the then Department of Immigration and Border Protection (Department) any evidence of their ongoing relationship. As a consequence, a delegate of the Minister refused Mr Ayache’s application for a Partner visa on 2 May 2012.
Mr Ayache applied to the then Migration Review Tribunal (MRT) for review of the decision. As a consequence, he was granted a bridging visa permitting him to remain in Australia pending the resolution of his application for review. On 13 April 2013, the MRT decided that Mr Ayache continued to live in a spousal relationship with his wife. That meant that he had satisfied one of the criteria that he was required to meet for the Partner visa. The MRT remitted the matter to the Department with a direction to that effect.
Mr Ayache remained on a bridging visa. In the meantime, he had committed various offences, which I have set out in the table in the paragraph below. On 26 September 2017, a delegate of the Minister cancelled Mr Ayache’s bridging visa under s 116 of the Migration Act. As he did not hold a visa on his release from prison on 20 April 2017, he was taken into immigration detention on that day. On 29 November 2017, a delegate of the Minister decided to refuse Mr Ayache’s application for a Partner visa.
Convictions
In this section of my reasons, I will set out the facts that are either not in dispute or that I have found after hearing Mr Ayache’s oral evidence and that of his wife, Mrs Samaher Ayache, his sister in law, Mrs Mirna Kaddour, Mr Michael Lam and Ms Merry-Wayan El Houli as well as having regard to the written evidence. I will set out the facts by reference to the years in which they occurred and also intersperse facts relating to Mr Ayache’s personal life.
Date of offence
Date of conviction
Conviction
Court
Sentence
Mr and Mrs Ayache married according to Sharia Law on 6 September 2006.
Mr Ayache entered Australia on 13 September 2007 as the holder of a Prospective Marriage (Temporary) (Class TO) visa.
Mr and Mrs Ayache were married in Australia on 28 October 2007.
Their eldest child, a son, was born in 2008.
Mr Ayache’s Prospective Marriage (Temporary) (Class TO) visa expired on 31 May 2008.
He applied for a Partner (Residence) (Class BS) visa on 7 May 2009 and was granted a Bridging Class (Class WC) visa.
On 9 February 2010, Mr Ayache was granted a Partner (Temporary) (Class UK) visa.
10 March 2011[1]
1 December 2011[2]
Possess methylamphetamine
Possess amphetamine
Possess imitation general category handgun
Possess ammunition without a licence
Broadmeadows Magistrates’ Court
On each charge:
Convicted.
Required to comply with a Community Based Order for 12 months commencing on 1 December 2011 to perform 150 hours unpaid community work over 12 months. All core Community Based Order to apply.
Ordered to attend the Broadmeadows Community Corrections Centre by 5 December 2011.
On 2 May 2012, Mr Ayache’s application for a Partner (Residence) (Class BS) was refused as he had not provided evidence to demonstrate that he and his sponsor were in a spousal relationship.
Mr Ayache applied to the then Migration Review Tribunal (MRT) for review of the decision.
Their second child, a daughter, was born in 2012.
13 April 2013[3]
24 February 2014[4]
Behave in riotous manner in public place
Melbourne Magistrates’ Court
On each charge:
Convicted.
Fined $1,000
On 3 June 2013, the MRT set aside the decision and remitted the matter to the Department with the direction that Mr Ayache and his sponsor were in a spousal relationship.
10 July 2014[5]
20 May 2015[6]
Drive whilst authorisation suspended
Use unregistered motor vehicle – highway
Resist police
(2 counts)State false name
Broadmeadows Magistrates’ Court
Without conviction, fined an aggregate of $3,500.
9 October 2014[7]
10 December 2014[8]
Possess cannabis
Possess a Schedule 4 poison
Possess prohibited weapon without exemption/approval (2 counts)
Broadmeadows Magistrates’ Court
On each charge:
Convicted.
Fined an aggregate of $1,500.
On each charge:
Convicted.
Fined an aggregate of $1,500.
Their third child, a daughter, was born in 2015.
29 October 2015[9]
(See below)
Arrested and charged with:
Possess a Drug of Dependence
Traffick Drug of Dependence
(2 counts)County Court of Victoria
(see below)
On 16 February 2016, Mr Ayache was released on bail.
On 8 March 2016, Mr Ayache had a road accident and suffered an injury to his foot.[10]
On 26 September 2016, a delegate of the Minister cancelled Mr Ayache’s Bridging A (Class WA) visa under s 116 of the Migration Act on the basis of his convictions in 2014.[11]
On 11 October 2016, Mr Ayache was arraigned in the County Court and remanded in custody.[12]
On 2 November 2016, Mr Ayache was granted a Bridging E (Class WE) visa until 13 December 2016 on the grounds of his being in criminal custody.
On 14 December 2016, Mr Ayache was granted a Bridging E (Class WE) visa until 19 April 2017 on the grounds of his being in criminal custody.
20 February 2017[13]
Possess a Drug of Dependence
County Court of Victoria
Seven days’ imprisonment to be served concurrently with sentence below.
Traffick Drug of Dependence
(2 counts)Eight months’ imprisonment on each charge with six months of the second sentence to be served concurrently with the first: a total of ten months’ imprisonment.
On the completion of his term of imprisonment to comply with a CCO for two years. The conditions of the CCO included Mr Ayache’s undergoing assessment and treatment including testing for drug or alcohol use or dependency and treatment.
On 20 April 2017, Mr Ayache was released from prison and taken into immigration detention.
[1] Supplementary Relevant Documents at 142
[2] Supplementary Relevant Documents at 166
[3] Supplementary Relevant Documents at 143-146
[4] Supplementary Relevant Documents at 166
[5] Supplementary Relevant Documents at 147-148
[6] Supplementary Relevant Documents at 166
[7] Supplementary Relevant Documents at 149-150
[8] Supplementary Relevant Documents at 166
[9] Supplementary Relevant Documents at 155 and Relevant Documents at 80-81
[10] Relevant Documents at 96
[11] The Minister’s power to cancel Mr Ayache’s temporary visa is found in s 116(1)(g) of the Migration Act when read with r 2.43(oa) of the Migration Regulations 1994 (Migration Regulations). Section 116(1)(g) provides that the Minister may, subject to subsections (2) and (3), cancel a visa if he or she is satisfied that a prescribed ground for cancelling a visa applies to the holder. In the case of the holder of a temporary visa of the sort held by Mr Ayache, there is a prescribed ground if the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any)): Migration Regulations; r 2.43(1)(oa).
[12] Relevant Documents at 81
[13] Supplementary Relevant Documents at 201
Sentencing remarks of Judge Quin
In sentencing Mr Ayache on 20 February 2017, Judge Quin set out the circumstances in which the offences, for which the maximum penalties were 15 years’ imprisonment, had been committed:
“2. In June 2015, the police commenced a covert operation concerned with the drug trafficking activities of you and your co-accused, Hamdam El Kobaili. Investigations revealed that you trafficked methylamphetamine from your home, which had been supplied to you by the Sydney based El Kobaiili.
3. Information obtained from Qantas concerning the travel of El Kobaili between Sydney and Melbourne revealed that between 25 September 2015 and 24 October 2015, El Kobaili travelled between those cities on eight occasions, and that he stayed for differing periods of time in Melbourne.
4. On one of those occasions, on 12 October at approximately 1.26pm, he travelled to your home by taxi from the airport. He remained at your address for three minutes before returning to the airport at approximately 2 pm.
5. On other occasions he attended your home from the airport in a chauffeur driven car. Those trips were for the purpose of arranging for the delivery of methylamphetamine to you, for you to sell.
6. Investigators also monitored your mobile phone. You were in frequent contact with El Kobaili over the relevant period, discussing or organising meetings and the details three times. There were calls on the 24 October 2015 between you, when you discussed the potential sale of methylamphetamine and cannabis.
7. On 29 October 2015, El Kobaili was intercepted by police at Tullamarine after he had arrived on a flight from Sydney. El Kobaili was searched and a clear snap lock bag containing a white crystal substance was located wrapped inside a sock in his bag. This substance was methylamphetamine and weighed 276.5 grams, with a purity of 82 per cent. This amounted to 226.73 grams of pure methylamphetamine.
8. I note that under Part of the relevant act, a commercial quantity of this drug is 100 grams. It is accepted by the prosecution that El Kobaili was to bring you an undetermined amount of methylamphetamine, but an amount that was in at least in excess of the trafficable [sic] amount being 3 grams.
9. Your counsel conceded this was serious offending, however, remarked that the prosecution was not in a position to prove that all the drugs found with El Kobaili were intended to be provided to you. That is, not the whole amount of 226.73 grams of methylamphetamine.
10. Later that day, police attended your home and conducted a search. You were arrested. As a result of the search, investigators located a bungalow at the house, set up like a home office. A desk in the office contained scales, deal bags and a book containing prices and weights relating to drug transactions.
11. Investigators also located a black pouch, which had two snap lock bags, each containing a white crystal substance. The first bag contained 16.2 grams of methylamphetamine, with a purity of 84 per cent - amounting to 13.6 grams of pure methylamphetamine. The second bag contained .82 grams of methylamphetamine, with a purity of 39 per cent pure methylamphetamine. That is Charge 3 [Trafficking Methylamphetamine; Charge 1 was Possession of Methylamphetamine].
12. Also, discovered in the bungalow were differing amounts of cannabis as follows: In the ensuite, 439.6 grams; in the oven, four plastic bags contained a total amount of 1.78 kilos; in the oven, another clear plastic bag was found, in which there was a further nine snap lock bags, in total weighing 243.5 grams and in the cupboard of the office area, a blue Irwin bag was found, that in turn, had within it six plastic bags that contained 2.68 kilos of cannabis.
13. Thus, the total amount of cannabis found by police was 5.14 kilos. That is the amount on the subject of Charge 2 [Trafficking Cannabis].
14. A trafficable [sic] amount under the Act is 250 grams and a commercial quantity is 25 kilograms.
15. There were some aggravating features of your offending:
(1)A comprehensive surveillance system was operating at your house and the review of the footage revealed you frequently attending the bungalow and meeting drug customers.
(2)Additionally, a significant number of telephone intercepts had you speaking with unknown parties in relation to trafficking drugs.”[14]
[14] Relevant Documents at 80-81
As for Mr Ayache’s prospects of rehabilitation, Judge Quin said:
“27. I was provided with a report from forensic psychologist, Dr Aaron Cunningham, dated 7 October 2016, Exhibit 1.
28. You reported to Dr Cunningham that you commenced using methylamphetamine approximately four years ago. In combination with this drug, you were also using alcohol. You told Dr Cunningham that your usage was the means for you to cope with financial pressures and problems regarding your limited employment.
29. This history is consistent with your prior matters relating to drug use and possession. Dr Cunningham is of the opinion that you have no indication of mental illness or intellectual disability. Your drug abuse is seen as the main contributor to this offending.
30. You have a number of relevant prior convictions in 2011 and 2014 relating to drugs, but have also some prior … driving offences.
31. You have previously successfully completed a community based order in 2011. However, these matters are a step up in seriousness in your offending. Specific deterrence is a relevant sentencing consideration in your circumstances.
…
42. I take into account your plea of guilty. … Your plea is also indicative of your acceptance of responsibility for your actions and shows a willingness to facilitate the course of justice.
43. Your counsel submitted that your rehabilitation prospects were good and relied on the following: Dr Cunningham’s view regarding your positive prospects with protective factors such as the family support and constellation, together with the expectation of you gaining full time employment; (2) your period of time in custody when you have been drug free and (3), that you were not involved with any offending when you were on bail and in the community.
44. It was submitted that you had undergone a change in attitude since being incarcerated and also, given the threat to the security of your life in this country, which you have now established with your wife and children.
45. I accept that you have good rehabilitation prospects, but I am somewhat cautious about your drug issues.
46. You had a relatively sophisticated set up, running your business with video security and home office. There was a significant amount of activity detected and it related to two different types of drugs.
47. On any scale, trafficking is a serious offence, given the societal problems that any drugs cause. Trafficking of any drugs affects the health and lives of many in the community, and the impact of the availability of illicit substances in the community cannot be underestimated.
48. Principles of general deterrence are of importance to this kind of offending. Those who engage in the business of trafficking drugs should be aware that if caught, they will be punished. The community demands denunciation and just punishment for this kind of offending.
…
51. I had you assessed by the Office of Corrections who reported you as being a medium risk of reoffending. …”[15]
LEGISLATIVE BACKGROUND
[15] Relevant Documents at 82-83
Visas
Subject to the terms of the Migration Act, the Minister may grant a non-citizen[16] permission either to travel to and enter Australia or remain in Australia. That permission takes the form of a visa.[17] A visa may be subject to conditions. It may be permanent, allowing the person to remain in Australia indefinitely, or it may be temporary, allowing the person to remain during a specified period, for a specified event or while the holder has a specified status.[18] There are various classes of visa set out in s 31(2) and others may be specified in regulations made under the Migration Act. Regulations may specify the criteria that must be met for a visa of a specified class[19] as do specific provisions of the Migration Act.[20] Quite apart from circumstances in which an applicant for a visa fails to meet the relevant criteria, s 501 sets out circumstances in which the Minister may refuse to grant a visa. They arise if the person fails to meet the character test set out in s 501(6) of the Migration Act with reference to s 501(7) to (12).
[16] A non-citizen is a person who is not an Australian citizen: Migration Act; s 5(1).
[17] Migration Act; ss 5 and 29(1)
[18] Migration Act; s 30
[19] Migration Act; s 31(3)
[20] See, for example, s 36 in relation to protection visas.
Refusal under section 501 of the Migration Act
Section 501(1) provides that:
“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.
Note:Character test is defined by subsection (6).’
The Minister may refuse to grant a visa if he reasonably suspects that the person does not pass the character test and he is satisfied that the refusal is in the national interest.[21]
[21] Migration Act; s 501(3)
The character test is set out in s 501(6). Only s 501(6)(a) is relevant:
“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));
…”
Section 501(7) sets out various situations in which a person is determined to have a substantial criminal record. They include the situation set out in s 501(7)(d) in which a person has been sentenced to two or more terms of imprisonment where the total of those terms is 12 months or more. In Mr Ayache’s case, he has been sentenced to eight months imprisonment on each of two counts of Traffick Drug of Dependence. Six months of the second sentence was to be served concurrently with the first sentence. That mean that the maximum term of imprisonment that Mr Ayache was required to serve was ten months. That was a total term of imprisonment of 10 months but, for the purposes of the character test, I am required to count the full term of each sentence of imprisonment. Consequently, Mr Ayache is taken to have been sentenced to 16 months’ imprisonment as a result of having been convicted of the two offences. This follows from s 501(7A) of the Migration Act, which provides:
“For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.
Example:A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.”
Discretionary decision
Section 501(1) is drafted in discretionary terms in that the Minister “may” refuse to grant a visa to a person who does not satisfy the Minister that the person passes the character test. It is not an unfettered discretion but a discretion that must be exercised within boundaries found in the Migration Act. Those boundaries may be express or they may be implicit when regard is had to the subject matter of the enactment under which the decision is made as well as from its object and underlying policy.[22]
[22] Alexandra Private GeriatricHospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265 at 375; 272 per Woodward J (appeal allowed by the Full Court of the Federal Court in Re Alexandra Private Geriatric Hospital Pty Limited (Trading As Alexandra Private Nursing Home) v Neal Blewett (Who Is Sued As the Commonwealth Minister of Health) and Anor [1985] FCA 242; (1985) 7 FCR 341 but not on this point) and see also Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299; Gibbs CJ, Mason, Brennan, Deane and Dawson JJ at 39-40; 308-309 per Mason J with whom Gibbs CJ and Dawson J agreed
In the case of a discretionary decision of the sort provided for in s 500(1), s 499 of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under that Act provided the directions are about the performance of those functions or the exercise of those powers.[23] Those directions must not be inconsistent with the Act or the Regulations made under it.[24] The person or body to whom the directions are given must comply with them.[25] The Minister has made a direction under s 499 for the purposes of decisions made under, among others, s 501(1). It is known as “Direction No. 65”.
[23] Migration Act; s 499(1)
[24] Migration Act; s 499(2)
[25] Migration Act; s 499(2A)
Paragraph 6.1 of the Direction No. 65 begins with a statement of objectives but I will refer
only to the first:“The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.”[26]
[26] Direction No. 65 at [6.1(1)]
The objectives are followed by passages described as “General Guidance” and “Principles”. The latter set the framework within which the individual considerations set out in Parts A, B and C of Direction No. 65 are set. They give those considerations their form and pattern and raison d’être. The Principles set out in paragraph 6.3 are:
“(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The 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.
(3)A 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 to forfeit the privilege of staying in, Australia.
(4)In 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 considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia 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.
(6)Australia 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.
(7)The 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.”
Paragraph 7(1) sets out how the discretion under s 501 is to be exercised:
“Informed by the principles in paragraph 6.3 above, a decision-maker:
a)must take into account the consideration in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.”
Considerations that differ slightly from each other are prescribed in each Part. The reason for that difference is explained in paragraph 8(1):
“… Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.”
In this case, Part B sets out the considerations that are relevant to the refusal of a visa. Paragraph 8 of Direction No. 65 sets out how the considerations are to be applied by a decision-maker in coming to the relevant decision. Decision-makers must take into account the primary and other considerations relevant to the individual case.[27]
[27] Direction No. 65 at [8(1)]
In applying the considerations, whether primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources.[28] Paragraph 8(3) provides that “Both primary and other considerations may weigh in favour of, or against refusal … of the visa …”. Generally, primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations.[29]
[28] Direction No. 65 at [8(2)]
[29] Direction No. 65 at [8(4)] and [8(5)]
When making a decision whether to refuse an application for a visa, Part B of Direction No. 65 requires, in summary, regard to be had to the following three primary considerations:
“a) Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.”[30]
The secondary criteria:
“… include (but are not limited to):
a) International non-refoulment obligations;
b) Impact on family members;
c) Impact on victims;
d) Impact on Australian business interests.”
[30] Direction No. 65 at [11(1)]
Direction No. 65 expands upon each of these criteria and I return to it when considering each of them in these reasons. For the moment, I will merely note that, consistent with the reasoning of North J in Williams v Minister for Immigration and Citizenship[31] (Williams), the question that I must ask myself when I have had regard both to the primary and secondary conclusions is whether, in the case of an application for a visa, a decision should be made to grant or refuse that visa. That question will be answered in light of the assessment of the primary and secondary considerations but also taking into consideration all matters that are relevant having regard to the subject matter of the Migration Act, its object and its underlying policy. The task is much more than simply placing the assessments of the primary and secondary considerations into the balance to determine the answer to the question.[32]
[31] [2013] FCA 702; (2013) 136 ALD 299 at [42]-[44]; 311
[32] I have expanded on the reasoning on this issue in Re Maikantis and Minister for Immigration and Border Protection [2018] AATA 40 at [16]-[22]
CONSIDERATION
Primary considerations
Part B begins with three considerations that are characterised as primary considerations: protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community. Each of these considerations is developed in the remainder of paragraph 11.
A. Protection of the Australian community
The first primary consideration relating to the protection of the Australian community begins with the general statement:
“When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.”[33]
[33] Direction No. 65; [11.1(1)]
A.1 The nature and seriousness of Mr Ayache’s conduct to date
Paragraph 11.1.1 goes on to expand on the nature and seriousness of the non-citizen’s offending or other conduct to date. It sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:
“a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled) … are serious;
c)…
d)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious [sic];
e)The sentence imposed by the courts for a crime or crimes;
f)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
g)The cumulative effect of repeated offending;
h)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
i)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.”
A.1.1 Consideration
Mr Ayache has been convicted of offences that occurred on five separate occasions over a 4½ year period. On each occasion except the second, Mr Ayache has been convicted of a group of offences. Three of those groups have included possession of drugs, whether methylamphetamine or cannabis. The fourth of those groups, as well as the single offence constituting the second group, have centred on what can loosely be described as behavioural offences. Two have included offences related to a weapon or an imitation weapon and one also included ammunition.
Mr Ayache said that he started to offend because he became depressed when he could not obtain work on a regular basis. Between 2007 and 2011, he worked on a casual basis as a machine operator for a demolition company. His English was poor and he had to rely on others to take him to the job. He became psychologically unwell and felt pressure to find the money to pay the rent. Although he was able to pay the rent, he had a child and became upset that he could not do anything. As a result, he turned to drugs in 2011. At first, he used cannabis and later started “using everything”. More particularly, I find on the basis of his evidence that he used methylamphetamine, cannabis and cocaine. When he used drugs, he did not have any problems.
His drug taking began when he was with friends, who would give him methylamphetamine. In the beginning, he would use only one or two “points”[34] of methylamphetamine every two or three days. He would use it whenever he sat with “the guys”. Mr Ayache started drinking alcohol at the same time. Again, he was drinking alcohol every two or three days. He would drink and use drugs in a friend’s garage. On those days, he went home at about 10:00 or 11:00pm each night. His wife did not know that he was drinking or using drugs. After a year, he started using cocaine. At the beginning, he would use one or two lines. By 2015, Mr Ayache stated that he was using drugs every day and he was using them either in the bungalow[35] at the back of the house or, sometimes, with friends at another property.
[34] A “point” is a tenth of a gram.
[35] See [55] below for a description of the “bungalow”.
On the basis of his evidence, I find that Mr Ayache continued to use drugs until he was arrested on 29 October 2015 and was held in remand. Since that time, he states, he has not taken drugs. Although information readily available in the public arena leads me to conclude that remand and imprisonment cannot be regarded as necessarily drug-free environments, I accept that Mr Ayache has been drug-free since October 2015. He has not even smoked tobacco and he did not return to drug use in the eight months or so after he was released on bail and before he was remanded in custody after he was arraigned on 11 October 2016.
His being drug free since 2015 counts in his favour but what is more worrying is that he turned to trafficking drugs in the first place and to the circumstances in which he did so. Mr Ayache said that he sold cannabis to others so that he could buy methylamphetamine for himself. He would supply methylamphetamine if someone just wanted a point or two. This was not “actually trafficking” methylamphetamine in his mind but he was convicted of doing so by the County Court. Acting as an administrative tribunal, I cannot go behind that conviction to make a finding contrary to the essential facts on which it was based.[36] Mr Ayache said that he was selling methylamphetamine to his friends who would consume it with him. He did not know how many friends he sold it to. As far as cannabis was concerned, Mr Ayache said that he was selling 20 grams of cannabis at a time. Any money that he made was used to purchase methylamphetamine for his own use. His statement does not sit easily with his having worked only casually and the statement made by his wife that he was the bread winner for the family and that she has been struggling to meet the family’s financial obligations since her husband has been in prison or detention. Those expenses have included mortgage payments and rates and loan fees, which are now overdue.[37]
[36] This is consistent with the principles expressed in Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234; 56 ALD 349 that we are not permitted to make any findings of fact that are inconsistent with: “… at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence. …”; [1999] FCA 1197; (1999) 91 FCR 234; 56 ALD 349 at [40]; 244; 358 per Branson, Lindgren and Emmett JJ
[37] Exhibit B at [20]-[21] and see also Exhibit A at [22]-[23]
The arrangement that he had to purchase drugs when he was arrested in October 2015 was quite sophisticated. A man, whom Mr Ayache said was the son in law of a former work colleague, would travel from Sydney and carry drugs to him. Mr Ayache got to know the man because he and the man’s father in law smoked cannabis together. The colleague’s son in law offered to bring him drugs when he travelled to Melbourne and that was how it happened. Mr Ayache could not remember when the man made the first trip. He would pick him up from the airport, he said, although the evidence before the County Court also suggests that the man would make his way to Mr Ayache’s home as well. Mr Ayache said that the man was not his only source of drugs and he explained the drugs that the police found in the bungalow in October 2015 as being sourced from two other people. He had gone to those people because he could not wait for the man from Sydney to come.
Mr Ayache denied that he was making a profit from selling drugs. To his mind, he was smoking the money he received from the sales. That is not consistent with Judge Quin’s finding that the bungalow was set up as a home office with a desk containing scales, deal bags and a book containing prices and weights relating to drug transactions. Mr Ayache’s evidence that he needed to keep a record so that he knew how much he could smoke suggests a very unsophisticated operation. On the other hand, the book with prices and weights, the scales and the advanced surveillance equipment suggests a sophisticated operation. The sophistication of the operation is consistent with the fact that at least some of the drugs were sourced from a supplier who flew in to Melbourne for very brief periods and who visited Mr Ayache’s home for only a few minutes each time.
Mr Ayache acknowledged at the hearing that he had not given any thought to the consequences of drug taking while he was engaged in drug trafficking. It was only when he went to gaol that he started to think about what happens to people. Before that, he had not been aware of what he was doing.
Dr Cunningham reported that the results of a Mental State Assessment completed by Mr Ayache were not consistent with his suffering from mental illness. He did present, however, with symptoms of anxiety, mood disturbance and paranoia consistent with the reported levels of methylamphetamine abuse, Dr Cunningham noted.
Mr Ayache had told him that he had experienced difficulty in adjusting to life in Australia. Although he had left school at an early age in Lebanon in order to support his family, he had managed that responsibility as he had the support of his larger family network. His lack of fluency in the English language had made it difficult for him to find work and that in turn had led to financial stress and so to his using drugs to alleviate it. Mr Ayache’s drug use was the main contributor to his having committed offences, Dr Cunningham concluded. He concluded:
“… from a psychological perspective, Mr Ayache would benefit from a disposition that facilitated his rehabilitation. In my opinion, Mr Ayache requires engagement with drug and alcohol rehabilitation. He may source this through Directline. He would benefit from ceasing negative peer associations and engaging with full-time employment. This would alleviate financial strain and occupy his time. He would benefit from engaging with an English course to widen his opportunity prospects. Ceasing negative peer association and drug abuse, as well as maintaining full-time employment, would reduce his risk and positively predict rehabilitation.”[38]
[38] Supplementary Relevant Documents at 196
Dr Cunningham did not express an opinion on the likelihood or otherwise of Mr Ayache’s reoffending. Judge Quin referred to an assessment by the Office of Corrections, which found him to be a medium risk of reoffending. She ordered that he undertake a Community Corrections Order on his release from prison with conditions that, among others, he undertake drug treatment and rehabilitation. He has not had the opportunity to undertake that Community Corrections Order as he was placed in immigration detention immediately upon his being released from prison. Even if he had undertaken it, the course of his offending gives me cause for concern.
Mr Ayache has moved from possession of drugs through two sets of behavioural offences to trafficking in a relatively sophisticated fashion and has done so over a period of less than four years. The penalties that were imposed in relation to the four sets of charges did not deter him from engaging in using drugs and make him pause to review his own behaviour. They seemed to be inconsequential in his decision to engage in trafficking drugs. He appears to have paid no thought to the harm that befalls those who purchased drugs from him. Certainly, it could be said that it is a drug user’s decision to purchase drugs and a drug user must take responsibility for that decision. While that is so, it can equally be said that a drug user would not be able to implement the decision to purchase if there were no trafficker from whom to purchase. In that way, a drug trafficker must bear some measure of responsibility for the harm that befalls the drug user.
It is surprising that, as the father of young children, Mr Ayache had to wait until he was in custody before he thought that his actions were wrong. He has not turned his mind to the world in which his children were being raised. At their tender age and experience, that world was very much the world that he created for them on the property where they resided. It was the world where he had his friends coming to buy and use drugs in the bungalow or where he would meet those who were not in his friends in the street to supply drugs. It is a world in which he has felt able to ignore his responsibilities to the community generally by, for example, stating a false name to the police,[39] behaving in a riotous manner in a public place and possessing ammunition and an imitation handgun without a licence. He appears to have gained an insight into his behaviour when the consequences of his behaviour led to the deprivation of his liberty rather than simply to a conviction, a fine and the performance of community service.
[39] Mr Ayache said that he refused to state his name but I cannot go behind the offence of which he was convicted.
Having regard to all of these matters, I find that Mr Ayache’s conduct to date is a cause for serious concern. It shows a pattern of behaviour that has escalated in its seriousness and that has not been mitigated by the intervention of the law to date.
A.2Risk to the Australian community should the non-citizen commit further offences or engage in serious conduct
Paragraph 11.1.2 of Direction No. 65 states:
“(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In addition, decision-makers should have regard to the principle that Australia 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.
(3)In considering the risk to the Australian community, 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:
i.information and evidence on the risk of the non-citizen reoffending; and
iievidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
iii.the duration of the intended stay in Australia.
(4)Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short stay visa.”
A.2.1 Consideration
To some extent, I have addressed this matter already. Mr Ayache seeks a visa that would enable him to remain in Australia indefinitely. His risk of re-offending was not addressed in those terms by Dr Cunningham. He spoke instead in terms of those factors that would facilitate his rehabilitation. They included factors that only Mr Ayache could address e.g. ceasing negative peer associations, gaining employment and undertaking an English language course. Other factors addressed those with which Mr Ayache might find assistance from others e.g. undertaking drug and alcohol courses. Judge Quin thought that he had good rehabilitation prospects although she was somewhat cautious about his drug issues. Her caution might possibly have been reflected in the assessment by the Office of Corrections, which reported Mr Ayache as having a medium risk of offending. I do not have the assessment and so do not know the basis on which that assessment was reached.
I am mindful that Mr Ayache has not had an opportunity to undertake the drug and alcohol rehabilitation course as directed by Judge Quin as part of the Community Corrections Order. That order was to have come into force on Mr Ayache’s release from prison on parole but he was, instead and as is usual in these cases, taken straight into immigration detention. Mr Ayache asks that he have a second chance to show that he can change his behaviour. His successfully completing the requirements of the Community Corrections Order over a two year period would have gone some way to demonstrating this.
The dilemma that I have is that Mr Ayache has been given his “second chance” on more than one occasion already. He was given it in 2011 and 2013 and twice in 2014 by the criminal courts before being sentenced to a term of imprisonment. He has also been given opportunities to address his status as a resident in Australia on more than one occasion. Although he entered Australia and remained lawfully until 31 May 2008, he did nothing about applying for a Partner visa so that he could remain after that date. By doing nothing, he was present in Australia as an unlawful non-citizen from 1 June 2008 until 7 May 2009 when he applied for a Partner visa and was granted a Temporary Partner visa. Again he did nothing and failed to provide the Department with the information it needed about his ongoing relationship with his wife. As a consequence, he was again present in Australia as an unlawful non-citizen. He became a lawful non-citizen when a delegate of the Minister granted him a bridging visa after he had lodged his application to the MRT and waited for its decision. The MRT ultimately accepted that he had satisfied the criteria regarding his relationship with his wife and remitted the matter to the Department to make a decision regarding other criteria relevant to the granting of a Partner visa. Mr Ayache remained on a bridging visa until it was cancelled as a result of his imprisonment.
Perhaps Mr Ayache’s visa history could be put down to oversight but it is difficult to see how something as important as a visa can be overlooked in that way. It was essential to his being allowed to remain in Australia. His evidence at the hearing indicated that he knew the significance of visas. He knew that he came to Australia on a Prospective Marriage (Temporary) (Class TO) visa and was clearly concerned that he and his wife had married in Lebanon under Sharia law before his arrival. His concern was apparent in his initially describing events in Lebanon as an engagement or as a ceremony. His marriage under Sharia law and then under Australian law was of no consequence one way or the other but his attempt to avoid calling his marriage under Sharia law a marriage suggests some willingness to alter events to suit the way in which he wishes to present himself.
What Mr Ayache’s history in Australia reveals is a willingness to behave as he wishes. In saying that, I do not underestimate the enormous difficulties that people face in coming to Australia without English. That often makes it difficult for them to find employment or employment of their choice or even equivalent to the employment they undertook before they came to Australia. Mr Ayache could find employment of a broadly similar type to that he had undertaken in Lebanon but he was hampered by his lack of English. I have no evidence that he tried to improve his English language skills. Instead, he turned to alcohol, which has upset his wife, and to the use of drugs, about which she was unaware. He has become involved in criminal behaviour that has moved beyond his committing acts that are breaches of the law to acts that are committed in concert with others and that are breaches of the criminal law. Given the past patterns of his behaviour and in light of Dr Cunningham’s report and Judge Quin’s remarks, the risk that he will continue to behave in this way if he were permitted to remain in Australia is, I find, moderate as found by the Corrections Office.
B.Best interests of minor children in Australia affected by the decision
There are three minor children in Australia whose interests are relevant in this case. I must decide whether refusal of their father’s visa is, or is not, in their best interests.[40] To the extent that their interests differ, the interests of each child must be considered separately.[41] Paragraph 11.2(4) provides that, where relevant, the following factors must be considered:
[40] Direction No. 65 at [11.2(1) and (2)]
[41] Direction No. 65 at [11.2(3)]
“a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative effect on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.”
B.1 Consideration
I find that all three children are citizens of Australia. They are now aged 6, 5 and 4 years. Both parties agreed that it is in the best interests of the children that they remain in Australia. The basis on which they reached their positions on that issue was not spelled out and it is not a straightforward issue.
I accept that Mr Ayache is a caring and loving father to his children. My finding is supported by his evidence and that of his wife but it is also consistent with the evidence of his sister in law, Ms Mirna Kaddour, and those who have seen him with them in situations outside the home. I refer to the statement by Mr Hayden Kanjo, who is the Head Coach of the 7 Stars Futbol Academy where his son trains and plays each week. Mr Kanjo described Mr Ayache as a father for whom he has a lot of respect because of the way in which he conducts himself with his own son, his nieces and nephews and all children at the Academy. He is a “true gentleman”, Mr Kanjo said.[42] Mr Lam, who is one of Mr Ayache’s cousins, also gave evidence to the same effect. In his statement, he said that he knows how his cousin behaves with his children. Mr Ayache and his son are inseparable and, when the two of them are together, there is not a moment when Mr Ayache’s son is not smiling and excited and happy about being with his father.[43]
[42] Exhibit G
[43] Exhibit D at [10]
On the face of it, remaining in Australia with both their parents would be in their best interests. It is the country in which they were born and in which at least the eldest child, if not the middle child, have started their school. Australia is also the country in which their mother was born and in which she has resided all of her life. Some members of their mother’s family live in Australia as do some members of Mr Ayache’s wider family.
Mr Ayache’s parents and siblings continue to live in Lebanon. On the basis of Mr Ayache’s evidence, I find that the village in which Mr Ayache grew up did not have a school then and still does not have a school. Although not stated, it seemed implicit in his evidence that, if not permitted to remain in Australia, he would return to that village. It is implicit in his statement to the effect that he did not get an education and his children would be in the same position. Mr Ayache did expressly state, however, that if he were not permitted to remain in Australia, his wife and family would have to go with him. She had told him that she would. Life would be difficult for them as he would have difficulty in finding work and would not be able to find the money to pay fees for his children to attend a school.
Mr and Mrs Ayache both spoke of her accompanying him to Lebanon with the children if he were refused a visa. That may well be so but, in Mrs Ayache’s case, she will not be obliged to do that by virtue of Australian law. She is an Australian citizen as are her children and, putting aside bonds of love or of a sense of familial obligation, Mrs Ayache can choose whether she accompanies her husband to Lebanon and whether she takes the children. She has been their primary carer for most of the time since he was arrested on 29 October 2015, detained in custody, completing the period of imprisonment and detained in immigration detention. The only period in which Mr Ayache was at home in that period occurred after he was released on bail on 16 February 2016 and placed in custody after his arraignment on that day. Even in that period, I find that Mr Ayache was unable to be at home with his wife and children because he was hospitalised for approximately three weeks after he had a motor bike accident.
If Mr Ayache returned to Lebanon on his own without his family, his children would continue to live without their father as they have for the last 28 months or so. Mr Lam gave evidence that Mr and Mrs Ayache’s son, their eldest child, is missing his father. Their son, Mr Lam said, and their elder daughter are not coping well without their father. Mr Lam observed that they tended to ask a lot of questions about their father’s whereabouts and to say how much they miss him and how they cannot sleep because he is not with them. Mrs Ayache gave evidence to the same effect. She said that her husband’s absence of that time has adversely impacted upon their son’s psychological and emotional wellbeing. Her son becomes upset when he sees other children with their fathers because he has been separated from him for so long. He becomes very distressed at night time and cries. Although her son speaks to his father regularly, any hope that her son has to spend with his father in the future will be destroyed if his father is not permitted to remain in Australia.[44] In her oral evidence, Mrs Ayache said that her son felt unprotected at school because he did not have a father. Her elder daughter thinks that every male person must be her father and is despondent when he is not.
[44] Exhibit B at [27]
Understandably, Mrs Ayache’s focus at the hearing was upon the emotional state of her children since her husband’s arrest on 29 October 2015 and his long absences from the family home since that date. The reports of Dr Lyndal Peake, Paediatrician, show, however, that their son’s difficulties began before that date when the family was living under the one roof. Their son has been under his care since 2014 and under the care of another Paediatrician since 2013 when he was referred by his General Practitioner. The referral was made to better understand Mr and Mrs Ayache’s son’s ongoing education and learning needs. That was consistent with the intensive support for his academic, social and emotional needs that he had been given at the Primary School that he has attended since the Preparatory Year. In her letter dated 1 February 2018, the Primary School’s Principal referred to working very closely with Dr Peake and with the family in order to ensure that he is supported for his academic, social and emotional needs. The Primary School’s Wellbeing Co-Ordinator supports him with his social and emotional needs. It also supports him with an Educational Support Officer to help him through his daily activities and organisation. Without that support, the Principal believes, Mr and Mrs Ayache’s son would not be able to function independently in the school environment. In her opinion, he remained a vulnerable child who will need a lot of support not only academically but also emotionally and socially for the remainder of his school years and beyond.[45] In her report dated 31 January 2018, Dr Peake reported that Mr and Mrs Ayache’s son continued to have ongoing emotional difficulties and she had referred him to receive mental health support through a Care in Mind referral for psychology support. He continued to have significant difficulties in maintaining his attention at school and was receiving additional literacy support.
[45] Exhibit S
In view of these principles, it seems to me that I should be guided by the words of paragraph 11.3 in the immediate context of Direction No. 65 and in the broader context of s 501(1). When that is done, there can be no inevitable outcome. That said, how are the expectations of the Australian community to be evaluated? This was addressed by the Tribunal in Re Visa Cancellation Applicant and Minister for Immigration and Citizenship:[64]
“ Relevant community values will not depend on transient or fashionable thinking. They will not be found in the publications of vocal minorities or the fulminations of the media, motivated by short term considerations and the improvement of circulation or ratings. They will not necessarily reflect the views of individual politicians. Community standards will be found in more permanent values. They will be informed in part by legislation of the parliaments, and especially legislation applicable to the decision-making. Formal statements by ministers will be relevant, but not when they are not speaking officially or when their remarks are not carefully considered or do not appear to reflect ‘a broad consensus of opinion’ (Mason, Courts and Public Opinion at 36). Decisions will also be informed by the decision-maker’s belief based on experience. Evidence will rarely be of any practical assistance.
It will often be impossible for decision-makers to articulate the basis for their determination of what community standards require in a particular case, because the conclusion will not be based on evidence. Nevertheless, decision-makers are members of the community and exposed to the processes of its instrumentalities. They may not always be able to empathise with particular individuals or groups, because of lack of exposure to local considerations, but they are exposed to the short term and long term thinking and dissemination of ideas which determine the way society changes and develops.
Drawing on these considerations, even without detailed analysis of them, in reasons for decision, will lead to better formed judgments which more truly reflect community standards. An assessment expressed to be guided by community standards or values, without more, will still be likely to lead to better decision-making than if no attempt at such an assessment is made. Expressing an opinion that current community standards require a particular outcome will be likely to represent a better decision than one couched in personal terms. Such an approach will sometimes lend itself to reasons. Where there are no reasons, however, the decision and the basis for it will still be better expressed than with reasons couched in personal belief.”[65]
[64] [2011] AATA 690; Downes J, President and Senior Member (as he then was) McCabe
[65] [2011] AATA 690 at [79]-[81]
Although I respectfully suggest that it is implicit in the passage, I think that it should be expressly stated that the task described by the Tribunal is carried out in the context of, in this case, making a decision under s 501(1) of the Migration Act. Therefore, s 501(1) becomes the starting point for identifying those of the Australian community’s expectations that will be relevant. It is the starting point because a decision-maker is under an obligation first to determine the limits of a discretionary power by reference to the subject-matter, scope and purpose of the legislation granting the power to make that discretionary decision.[66] In other words:
“… the law obliges the Minister, in the particular case, to reach a decision on the merits of that case by reference only to considerations that are relevant to the grant of power and compatibly with the exercise of that power with respect to an individual. …”[67]
[66] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299 at 39-40; 309; per Mason J with whom Dawson J agreed. See also R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45; 27 ALR 321; 54 ALJR 94 at 49; 325; 95-96 per Stephen, Mason, Murphy, Aickin and Wilson JJ citing with approval Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 505
[67] Minister for Immigration v Jia Legeng [2001] HCA 17; 205 CLR 507; 75 ALJR 679; 65 ALD 1; 178 ALR 421 at [139]; 550; 703; 33; 454
The purpose of the Migration Act is to regulate those who may come to and those who may remain in Australia and the circumstances in which they may do so. There are various types of visa, some of which permit a person to remain on a temporary basis and others which permit a person to remain permanently. Parliament has decided that those who have committed offences attracting certain penalties may be refused a visa or have a visa cancelled and, in some instances, must be refused a visa or have a visa cancelled. Against that background, the Minister has developed considerations in the Direction that are consistent with the Migration Act’s subject-matter, scope and purpose.
Consistently with the Migration Act, the heart of the Direction is the protection of the Australian community and its institutions. That is reflected in the considerations set out by the Minister for decision-makers exercising one of the three types of discretion dealt with more fully in Parts A, B and C. It is also reflected in paragraph 6 of the Direction when it sets out the Objectives, General Guidance and Principles all of which underpin the exercise of the particular discretions that are the subject of Parts A, B and C. It is to this paragraph that regard is to be had in determining the matters that underpin and inform paragraph 11.3 when it addresses the expectations of the Australian community in the context of considering whether to exercise the power to refuse a visa. In particular, it underpins and informs when it may be appropriate to revoke the mandatory visa cancellation or when the Australian community would expect that the person should not hold a visa.
Particular aspects of paragraph 6 have relevance in considering the expectations of the Australian community in the context of s 501(1). They are:
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens: paragraph 6.1(1);
(2)In determining whether to exercise the discretion, a decision-maker must have regard to the specific circumstances of the case: paragraph 6.1(3); and
(3)The principles set out in paragraph 6.3 reflect community values and standards in determining whether the risk of future harm from a non-citizen is unacceptable: paragraph 6.2(1).
The Principles set out in paragraph 6.3 are based on the notions that:
(1)Entry to and presence in Australia are privileges conferred on persons in the expectation that they are, and have been, law-abiding, will respect its institutions and will not cause or threaten harm to individuals or the Australian community: paragraph 6.3(1);
(2)Australia has a low tolerance or any criminal or other serious misconduct but the level of its tolerance in any particular case will be determined by reference to matters such as the nature of the offending or misconduct, the time that a person has been in Australia and the contribution made in the past to the Australian community: paragraphs 6.3(3)-(6); and
(3)Regard must be had of the consequences of a visa refusal or cancellation on minor children and other immediate family members: paragraph 6.3(7).
C.2 Consideration: Mr Ayache’s circumstances
As Direction No. 65 states, the Australian community expects non-citizens to obey its laws while they are in Australia. Mr Ayache has not done that and he has not done that consistently over approximately a four year period. He has not done that in relation to its migration laws or to its criminal laws. Coming to a foreign land can be a difficult thing to do and it can be particularly difficult thing to do when a person does not have the language skills or firm employment. Mr Ayache was not, however, like many people who come to Australia with those disadvantages. He came to a wife who had been born in Australia and to members of her family, which was also his family, who had been established in the country for some years. The Australian community would understand mistakes that Mr Ayache made and that understanding might even extend to his forgetting to apply for a permanent Partner visa. It might even extend to his failing to work his way through the labyrinth of the Migration law relating to visas in a timely way. I do not express a view on that because I have come to the view that it would not tolerate the suite of criminal offences that Mr Ayache committed between 2011 and 2015. These were offences escalating in their seriousness and in the risk of harm that they presented to members of the Australian community who purchased drugs from him, the Australian community generally, which must deal with the consequences of the use of illegal drugs and their trafficking and to his own family.
Secondary considerations
Paragraph 12 of Direction No. 65 requires me to take into account other relevant considerations. Those considerations include, but are not limited to, international non-refoulement obligations, impact on family members, impact on victims and impact on Australian business interests.
International non-refoulement obligations are the subject of paragraph 12.1. Paragraph 12.1(1) describes a non-refoulement obligation as an obligation not to forcibly return, deport or expel a person to a place where that person will be at risk of a specific type of harm. Those obligations do not arise in Mr Ayache’s situation because he did not raise any concerns about his being at any risk of a specific type of harm or about his safety generally should he be required to return to Lebanon. He said that he speaks with his family who remain in Lebanon and he described the situation to which he would return as “Good … nothing wrong”. The proximity of the Syrian border to the village in which his family lives, Mr Ayache said, has no impact upon them.
A. Impact on family members
Paragraph 12.2(1) of Direction No. 65 states:
“Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely”.
A.1 Consideration
If Mr Ayache is not permitted to remain in Australia, he and his wife, or possibly his wife, will have to decide whether she and the children live in Lebanon with him. She has said that she will but she and the children are Australian citizens and have the right to remain in Australia. If Mrs Ayache makes the choice to live in Lebanon, she and the children will be living in a country where they have never lived or, at least, have never lived for any length of time. Mrs Ayache will be separated from her immediate family but will be closer to her husband’s family which is part of her wider family. I have referred to the effect on Mr and Mrs Ayache’s children above if they decide that she and the children should remain in Australia or if they should live in Lebanon.
B.Impact on victims
Paragraph 12.3(1) states:
“Impact of a decision to grant a visa [on members] of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where that information is available and can be disclosed to the non-citizen being considered for visa refusal.”
B.1 Consideration
I do not have any evidence regarding the effect of Mr Ayache’s crimes on victims of his criminal behaviour. I have referred to consequences of drug trafficking above. The events that led to Mr Ayache’s being convicted of behaving in a riotous manner in a public place involved the destruction of eight to ten shishas valued at $250 each and the destruction of approximately five tables worth an unknown amount and of plates and glass at a café or function centre. A bottle of Chivas Regal was found on the floor of the café, which does not serve alcohol, and which was believed to have been in the possession of the offenders. The offenders wanted to be served alcohol and were not impressed with the food that they were served. There were approximately 100 other customers present at the time. Mr Ayache was one of the offenders.[68]
[68] Supplementary Relevant Documents at 144-145
C.Impact on Australian business interests
Paragraph 12.4 states:
“Impact on Australian business interests if the non-citizen’s visa application is refused, noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project or delivery of an important service in Australia.”
C.1 Consideration
Refusal of Mr Ayache’s application for a visa does not have any impact on Australian business interests. Certainly, he has been offered employment by Mr Merry-Wayan El Houli in his demolition and business but there is no evidence that Mr Ayache’s particular services would be in any way pivotal to the success of that business. On the basis of Mr El Houli’s evidence, I find that Mr Ayache has proved himself a good worker in the demolition and excavation business. That is not to say, however, that his not being able to work in that industry will have an impact on Mr El Houli’s business. There is no suggestion in Mr El Houli’s offer that Mr Ayache has particular skills that cannot be provided by other people he may employ in his business either now or in the future. There is no evidence that Mr Ayache’s not being able to work in Australia because he has been refused a visa would have any impact on Mr El Houli’s business or on any other employer’s business. As Mr Ayache has not conducted his own business, I conclude that refusal of his application for a visa would not have an impact on Australian business interests.
Conclusion
Having considered both the primary and secondary considerations as well as the object and underlying policy of the Migration Act, I have decided to affirm the decision made by a delegate of the Minister to refuse Mr Ayache’s application for a Partner (Temporary)(Class UK) and a Partner visa under s 501(1). Mr Ayache faced difficulties in coming to Australia and found himself despondent and unable to cope. The pressures of his financial obligations weighed upon his mind and he chose to address them by escaping them through smoking cannabis and using methylamphetamine. He has been given warnings about his behaviour through the non-custodial sentences he has, until the last time, been given by the criminal justice system. He has ignored those warnings.
I accept the medical evidence that his wife is suffering from stress and anxiety issues as a result of the position her husband now finds himself. That is a position that necessarily affects her position and that of her children. While it may be that the children’s interests are best served by their remaining in Australia with both their parents, the Australian community is not best served by their father remaining here. He has not demonstrated a willingness to curb his behaviour to the extent necessary to comply with Australia’s laws and the potential for harm from his actions has risen as the nature of his offending has become more serious. His actions are not mitigated by his having actively assisted in several community functions for The Australian Halba Charity Association Inc or with its sporting group. As much as his work ethic and generosity have made him, in the words of its Vice President, Mr Mouhamed El-youssef, “a valuable member to our community”, he has not shown that side of himself to the wider Australian community.
The seriousness of Mr Ayache’s actions and the potential for harm now outweighs the interests of his family. As hard as it is for his family, the interests of the Australian community lie in Mr Ayache’s not being permitted to be a member. They lie in his being refused a visa. Whether his wife and children continue to live in Australia without him or live in Lebanon with him will be a decision for the family to make.
DECISION
For the reasons I have given, I affirm the decision of the delegate of the Minister dated 29 November 2017 to refuse Mr Ayache’s application for a Partner (Temporary)(Class UK) and Partner (Residence)(Class BS) visa (Partner visa) under s 501(1) of the Migration Act.
| I certify that the preceding eighty eight [88] paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie. |
...................[sgd]...............................................
Associate
Dated: 22 February 2018
| Date of hearing: | 9 February 2018 |
| Counsel for the Applicant: Solicitor for the Applicant: | Mr Greg Hughan Visatec Legal |
| Solicitor for the Respondent: | Ms Melinda Jackson Australian Government Solicitor |
27
12
0