Toma and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Toma and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 23 (17 January 2023)
Division:GENERAL DIVISION
File Number: 2022/9018
Re:Basm Sliwa Toma
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Dr L Bygrave, Member
Date:17 January 2023
Place:Melbourne

Pursuant to subparagraph 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the Respondent on 26 October 2022 and remits the matter for reconsideration with the direction that the Applicant passes the character test for the purposes of subsection 501(1) of the Migration Act 1958 (Cth).
.....................[sgd]...................................................
Dr L Bygrave, Member
Catchwords
MIGRATION – Migration Act 1958 (Cth) – refusal of Partner (Class UK) visa under s 501(1) because Applicant did not pass character test – Direction No. 90 – primary considerations – protection of the Australian community – best interests of minor children – expectations of the Australian community – other considerations – effect of impediments – links to the Australian community – decision set aside and remitted
Legislation
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Secondary Materials
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Dr L Bygrave, Member
17 January 2023
introduction

The Applicant, Mr Basm Sliwa Toma, is a citizen of Germany and Iraq. He first arrived in Australia on 7 March 2016 and he married Ms ‘A’ on 25 August 2018.
On 3 September 2018, with the assistance of a migration agent, the Applicant applied for Partner (Subclasses 820/801) visas on the basis of his relationship with his sponsor, Ms ‘A’. The Applicant was granted a bridging visa associated with this visa application.
On 26 October 2022, a delegate of the Minister[1] (the delegate) made a decision to exercise their discretion under subsection 501(1) of the Migration Act 1958 (Cth) (the Act) to refuse to grant the Applicant a Partner (Class UK) temporary visa (the visa) on the basis that he did not pass ‘the character test’. As a consequence of this decision, the Applicant’s bridging visa was cancelled in accordance with subsection 501F(3) of the Act.
[1] Referred to in the decision as ‘Delegate of a Minister administering the Migration Act 1958’.
On 2 November 2022, the Applicant lodged an application for review of this decision with the General Division of the Administrative Appeals Tribunal (the Tribunal).
The matter was heard in Melbourne on 9 and 10 January 2023. The Applicant had legal representation; he attended the hearing in person and provided oral evidence with the assistance of an interpreter of the German language.
relevant legislation
The refusal of a visa on character grounds
Subsection 501(1) of the Act states that the Minister may refuse to grant a visa to a person ‘if the person does not satisfy the Minister that the person satisfies the character test’ and notes the ‘character test’ is defined in subsection 501(6).
In the Applicant’s case, the delegate determined the relevant ground of the character test was paragraph 501(6)(a) of the Act, which states that ‘a person does not pass the character test’ if they have a ‘substantial criminal record’ as defined by subsection 501(7). Paragraph 501(7)(c) of the Act states a person has a ‘substantial criminal record’ if they have been ‘sentenced to a term of imprisonment of 12 months or more’.
A ‘Record of Criminal Convictions’ dated 26 July 2018 from the Federal Office of Justice in Bonn, Germany was translated into English on 18 September 2018. The English translation of this Record stated the Applicant was convicted in the Collegiate Court Ancona, Italy on 6 March 2014 of the offence, ‘Assistance for illegal entry and illegal residence’, and sentenced to three years and four months imprisonment and fined Euro 10,000; this conviction was made ‘final and absolute’ on 2 December 2014.[2]
[2] Exhibit A3.
Based on this conviction, I am satisfied that the Applicant does not pass the character test pursuant to paragraph 501(6)(a) of the Act because he has been sentenced to a term of imprisonment of 12 months or more. Consequently, the sole issue for determination by the Tribunal is whether the discretion in subsection 501(1) of the Act should be exercised to refuse the Applicant’s visa.
The power of the Tribunal to review this decision to refuse the Applicant’s visa is provided by subsection 500(1) of the Act. The Minister has given written directions about the exercise of the power to review the decision under subsection 499(1) of the Act, and subsection 499(2A) requires these directions must be complied with.
The relevant direction is Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction No. 90), which commenced on 15 April 2021.
Direction No. 90
Direction No. 90 provides the following guidance on how the discretion is to be exercised:
6. Exercising discretion
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
The Minister sets out the principles in paragraph 5.2 that provide the framework for deciding whether to refuse a non-citizen’s visa under section 501 of the Act. These principles 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)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens 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 by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Primary considerations are listed in section 8 of Direction No. 90 as follows:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Other considerations are set out at section 9 of Direction No. 90. These include, but are not limited to:
(1)international non-refoulement obligations;
(2)extent of impediments if removed;
(3)impact on victims;
(4)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
Section 7 of Direction No. 90 states that in applying the primary and other considerations: information and evidence from ‘independent and authoritative sources’ should be given appropriate weight; primary considerations ‘should generally be given greater weight’ than the other considerations; and one or more primary considerations ‘may outweigh other primary considerations’.
Evidence
The Applicant’s personal and family history
The Applicant was born in Iraq in 1972 and is the second youngest child of eight siblings. He attended primary and secondary school in Iraq and participated in employment including as a mechanic apprentice, cook/kitchen hand and builder’s labourer.
The Applicant and members of his family left Iraq during the Gulf War to go to Kurdistan and Turkey as the Applicant’s oldest brother, Mr ‘B’, had been arrested and sentenced to death before being released. The Applicant then returned to Iraq for a period with his parents and some siblings, while Mr ‘B’ came to Australia as a refugee in 1992. Mr ‘B’ later sponsored their parents and two of his sisters to come to Australia.
In 1997, the Applicant permanently left Iraq as a refugee and travelled to Turkey and then onto Germany. He worked in Germany in full-time jobs including as a kitchenhand and chef, mechanic, restaurant manager and government/local council employee. He married his ex-wife in 2002, became a citizen of Germany in 2005 and purchased a family home in Germany in 2007. He and his ex-wife have three children; a daughter who is aged 19 years, and two sons who are 18 years old and 13 years old. These children continue to live in Germany. The Applicant maintains contact with his children by telephone and provides them financial support and, prior to Covid-19 and his visa issues, he travelled to visit them annually.
In February 2016, the Applicant’s marriage to his ex-wife ended and he decided to travel to Australia in March to visit his parents, three of his siblings and their extended families. The family members of the Applicant who live in Australia and are Australian citizens include his father aged 87 years and his mother aged 82 years; his brother ‘B’ and his wife and their three (adult) children; his older sister, Ms ‘C’, aged 60 years and her husband and their three (adult) children; and his younger sister, Ms ‘D’, aged 42 years and her husband and their two (minor) children aged seven years old and three years old.
The Applicant met his (now) wife, Ms ‘A’, in October 2016 after she commenced working at the restaurant owned by the Applicant’s sister, Ms ‘C’. They commenced a relationship in November 2016, lived together permanently from June 2018 and married in August 2018.
The Applicant has developed close relationships with Ms ‘A’’s extended family who are Australian citizens. Character references written by Ms ‘A’’s mother describe the Applicant as loving, hard-working and family-oriented. Ms ‘A’’s step-brother also provided written and oral evidence to the Tribunal that the Applicant is intelligent, hard-working and helpful, and a loving, caring and compassionate husband and father who is patient with his children.
The children of the Applicant and Ms ‘A’ in Australia, and their current situation
Ms ‘A’ has two children from a previous relationship: a son, ‘E’ who is ten years old and a daughter, ‘F’, aged eight years. The relationship between Ms ‘A’ and the biological father of ‘E’ and ‘F’ ended in 2013. Since this separation, the biological father of ‘E’ and ‘F’ has had limited contact with ‘E’ and ‘F’ and has only provided minimal financial support to Ms ‘A’ as required through the child support agency. He has been incarcerated for the past two years and, during this time, has had no contact with Ms ‘A’, ‘E’ and ‘F’.
The Applicant and Ms ‘A’ are also parents to their son, ‘G’, who is three years old. ‘G’ is described in statements by the Applicant, Ms ‘A’ and other family members as the Applicant’s ‘shadow’ as he is always with him, and they have a very close relationship.
The Applicant has been a ‘father figure’ to ‘E’ and ‘F’ since they were ‘in nappies’.[3] As Ms ‘A’ often commences work at 6am, the Applicant wakes the children, organises breakfast etc., and drives ‘E’ and ‘F’ to school. He spends substantial time with all three children, playing at the beach, playing card games, going camping, boating and fishing as a family, and showing the children how to plant and grow fruit and vegetables in the garden of their home.
[3] Exhibit A1, 3.
A medical letter from the Royal Children’s Hospital Melbourne dated 26 November 2021 reports that ‘E’ has been diagnosed with Cerebrotendinous Xanthomatosis (CTX), a ‘lipid storage disease caused by deficiency of the sterol 27-Hydroxylase enzyme involved in cholesterol metabolism’ that results in ‘reduced synthesis of primary bile acids and deposition of cholesterol and cholestanol in several tissues’.[4] The letter states that CTX is ‘a severe, chronic and progressive disorder requiring life-long management’.[5] ‘E’ has also been diagnosed with (amongst other conditions) global developmental delay and intellectual disability, cataracts (bilateral), chronic diarrhoea, autism spectrum disorder, and attention deficit hyperactivity disorder. Due to his disabilities, ‘E’ attends a special developmental school and receives funding for specialist appointments and occupational therapy as a participant in the National Disability Insurance Scheme (NDIS). However, the evidence of both Ms ‘A’ and the Applicant is that ‘E’ requires substantial assistance and prompting to undertake daily activities such as tying his shoelaces and eating properly.
[4] Exhibit A1, 32.
[5] Exhibit A1, 33.
‘F’ attends a mainstream school and provided a note typed on Ms ‘A’’s mobile phone that included the following statements:
I can’t leave my dad because we or I can’t live without him…
[W]e’d be living on the road because he works a lot and is the won who makes us food and buys the food.
I love my dad because he goes fishing and takes me on boat rides and…because he motivates us to teach us how to help and my baby brother loves him so much and if he leaves mum will have a harder time with the kids.
If my dad goes to Germany that is not good for us but if he takes [‘G’] than w cant live without him and when [‘G’] has no dad he is young so he doesn’t no what’s going on…
[M]y dad teaches us to eat healthy foods and teaches us to plant foods.
My dad helps my brother [‘E’] with lots of things so he learns quickly.
My dad is the best person I have ever had… he thinks of good ideas to help us learn new things.
Please can he stay because I don’t want to have no dad… I love him.[6] [replicated as in original]
[6] Exhibit A1, 19.
The Applicant was employed as a chef on a casual full-time basis from November 2018 until his visa was cancelled in October 2022. He has also participated in community sport (badminton).
The Applicant and Ms ‘A’ purchased their first home together in 2019 with their savings and the proceeds from the sale of the Applicant’s house in Germany; they renovated this house and sold it in 2021 to purchase another house to be closer to the special needs school attended by ‘E’. As the Applicant is currently not permitted to work in Australia, the mortgage on this house is being paid by Ms ‘A’ who is working additional hours to make their repayments and pay for household expenses, including costs associated with ‘E’’s medical needs. This situation is currently placing significant financial stress on Ms ‘A’ and the Applicant.
The Applicant’s offence and conviction
The Applicant was convicted in the Collegiate Court Ancona, Italy on 6 March 2014 (made ‘final and absolute’ on 2 December 2014) of the offence, ‘Assistance for illegal entry and illegal residence’, and sentenced to three years and four months imprisonment and a fine of Euro 10,000.[7]
[7] Exhibit A3.
This conviction relates to events that occurred on 22 August 2013 while the Applicant was travelling from Greece to Germany by car and ship with one of his older brothers, ‘H’.
By way of background, the Applicant, his (now) ex-wife and their three children had travelled to Greece in July-August 2013 for a family holiday and reunion with members of the Applicant’s family. The Applicant’s wife and three children became unwell while in Greece and, on the advice of their family doctor in Germany, returned to their home in Germany by aeroplane. The Applicant and ‘H’ planned to drive the Applicant’s car from Greece to Germany; this involved travelling by ship from Patras in Greece to Ancona in Italy, a trip of approximately 24 hours, using tickets the Applicant had previously purchased for himself, his wife/children and his vehicle.
A ‘search and concurrent seizure report’ completed by police officers in the Ancona Maritime Border Police Office and dated 23 August 2013 (translated into English on 18 November 2018) provided the following description of the offence by the Applicant and his brother, ‘H’:
(a)On 22 August 2013 at 6pm, the Applicant and ‘H’ were disembarking from a ship travelling from Patras to Ancona in the Applicant’s vehicle. A female passenger was also in the Applicant’s vehicle.
(b)The Ancona Maritime Border Police proceeded to check the Applicant’s vehicle and the passport/identification documents and boarding passes for the Applicant, ‘H’ and the female passenger.
(c)On examination of the French identification card of the female passenger, the Ancona Maritime Border Police noted that ‘despite appearing authentic, the picture on the document did not match the appearance of the passenger who was present at the check’.
(d)The Ancona Maritime Border Police subsequently proceeded to search the Applicant, ‘H’ and the vehicle for ‘other material useful for further investigation of the crime of aiding illegal immigration’ and located mobile phones and sim cards on the Applicant and ‘H’.
(e)The Applicant and ‘H’ told the Ancona Maritime Border Police that they met the female passenger at a restaurant outside Patras and she had ‘asked for a ride as far as Milan’.
(f)The female passenger was returned to Greece by ship and the Applicant’s ‘vehicle was taken into judicial custody’.[8]
[8] Exhibit G-G2, 34-35.
The Ancona Maritime Border Police concluded in the ‘search and concurrent seizure report’:
Given there was a woman without valid ID that was inside the passenger vehicle driven by [the Applicant], who was travelling together with [‘H’], it appears to be the case that their intention was to aid illegal entry of the woman without valid ID into Italy, allowing her to ride inside the passenger vehicle where it was easier to evade checks by police.[9]
[9] Exhibit G-G2, 35.
The Italian language version of the ‘search and concurrent seizure report’ included the signatures of the Applicant, ‘H’, an ‘interpreter’ and a ‘minute taker’.[10]
[10] Exhibit G-G2, 25-26.
The Public Prosecutor’s Office of the Republic at the Court of Ancona provided a decree dated 27 August 2013 (translated into English on 18 November 2018) and a notice dated 27 August 2013 that stated the Applicant and ‘H’ were ‘subject to preliminary investigations’ in relation to charges of the crime in ‘article 12, paragraph 1 / 3 letter “d” D.Lvo 286/1998’, required to ‘declare or elect an address for service’ and had been assigned a defence lawyer by the police.[11]
[11] Exhibit G-G2, 36-39.

The final document from Italy before the Tribunal in relation to this offence is an ‘Order for immediate release [of the Applicant and ‘H’] following the hearing validating the arrest for being caught in the act’ that was made by the Tribunal of Ancona, Section of Preliminary Investigations Magistrates and Preliminary Hearings and dated 26 August 2013 (translated into English on 18 November 2018).[12]
[12] Exhibit G-G2, 41.
This order made by the Magistrate for Preliminary Investigations stated that the Applicant and ‘H’ were accused of ‘acting jointly’ and ‘illegally brought a non-European Iraqi National’ into Italy. The order noted the Applicant and ‘H’ were ‘questioned and their defence was heard at today’s hearing’.[13] The Magistrate observed:
Although there are grave indications of guilt regarding the crime that the accused are charged with, it is believed there are no current requirements for custodial detention, considering that from the nature of the crime it can be deduced that this was an isolated incident and unlikely to be repeated;
The accused (brothers) have no prior convictions and both have permanent roots in Europe…; as such it can be justifiably considered that the short precautionary period in custody has caused suffering for [the Applicant and ‘H’]… [T]hese people are fully integrated into European society and the custody so far had a deterrent effect.[14]
[13] Exhibit G-G2, 41.
[14] Exhibit G-G2, 41-42.
The Magistrate then ‘rejected’ the request made by the Public Prosecutor to implement ‘the precautionary measure of custodial detention of’ the Applicant and ‘H’, and ‘ordered’ the ‘immediate release’ of the Applicant and ‘H’ ‘if they are not detained for any other reason’.[15]
[15] Exhibit G-G2, 42.
The Applicant set out his evidence about the circumstances of this incident in statutory declarations dated 15 October 2020 and 6 December 2022,[16] and during extensive oral evidence at the Tribunal hearing on 9 January 2023. I consider the Applicant provided a credible and honest account of the events that was generally consistent with the contemporaneous documents from the Italian police and court.
[16] Exhibit A1, 1-8.
The Applicant stated that his brother ‘H’ decided to accompany him on the return car and boat trip from Greece to Germany after the Applicant’s wife and children needed to fly back to Germany due to illness. The Applicant and ‘H’ drove from Athens to Patras and were eating a meal at a petrol station several kilometres from the port in Patras when they saw a woman resting nearby with several bags.
The Applicant, who speaks eight languages including English, decided to approach the woman and ask if she needed a lift as he thought it would be difficult for her to carry her bags to the port. He said he communicated with the woman in limited English (as she did not speak any other language he knew) and by gestures, she showed him her ticket for the boat that was inside her passport/identification card, and he saw that she was travelling by the same ship to Ancona as he and ‘H’. The Applicant said that he did not look closely at the woman’s identification document but did not see any obvious issues. He also said that he did not think she could be from Iraq as their only common language was English and he spoke four of the languages that are commonly used in Iraq.
The Applicant and ‘H’ gave the woman a lift to the port at Patras in the Applicant’s car and they proceeded to pass through two police checkpoints and a ticket checkpoint before they were permitted to board the ship to Ancona. Once they boarded the boat, the woman left the Applicant and ‘H’ as she had a cabin, and the Applicant and ‘H’ did not. The Applicant said he and ‘H’ saw her briefly on the boat in the cafeteria and offered to give her a lift to the train station in Ancona, which was several kilometres from the port, as the Applicant was intending to have dinner with a friend who owned a restaurant near the train station.
The Applicant said that he, ‘H’ and the woman disembarked from the boat at the Ancona port in his car and, at the police checkpoint, they handed their passports separately to Italian police officers. He said the police looked at the documents and became angry and gestured for him and ‘H’ to put their hands on the car dashboard; the police later handcuffed their hands behind their backs. The police detained the Applicant, ‘H’ and the woman separately, and the Applicant did not see the woman again. After several hours, a German-speaking policeman (not a professional translator) interpreted questions for the Applicant and told him to change his story as he would not be believed. The Applicant was detained in a prison cell for the weekend, while ‘H’ was questioned and detained separately.
The Applicant stated that he attended court in Ancona on the following Monday morning for several hours. This was the first occasion he had access to a professional German translator and a lawyer, who he spoke to briefly prior to the hearing. He was questioned about what happened and legal documents were read to him ‘but many of the details were not right’.[17] At the end of the court proceeding, the Applicant was told that he was ‘free’ and he understood the matter was concluded.[18] The Applicant said this was his first time in a court and he found the situation very confusing. He said the hearing was conducted in Italian and the documents were written in Italian, which is a language he does not speak or read, although he accepted that he had some assistance from a professional translator and was represented by a court-appointed lawyer.
[17] Exhibit A1, 5-6.
[18] Exhibit A1, 6.
After the Applicant and ‘H’ were released on 26 August 2013, they attempted to collect his car to continue their return trip to Germany. However, when the Applicant found where his car had been taken and contacted the court-appointed lawyer, he was told he would have to pay Euro 5,000. As his car was only valued at Euro 3,000, he decided to remove his remaining possessions (he said some of his valuable possessions had been taken) from his car and he returned to Germany with his brother-in-law who had driven from Germany to Italy to collect him and ‘H’.
The Applicant said he contacted his German lawyer the day after he returned home to find out whether he could get his car returned. He also gave his German lawyer the Italian court documents, but these were not translated into German.
The Applicant said he then believed the matter was concluded and, as the court in Ancona had his residential address in Germany and telephone details, he cannot understand how he was not informed about the proceedings in the Collegiate Court Ancona that occurred on 6 March 2014 and 2 December 2014. The Applicant said he first knew about these proceedings when he received a letter about 18 months after the incident informing him about his conviction by the Collegiate Court of Ancona, Italy. He took this letter to his German lawyer, who wrote to the Federal Office of Justice in Bonn, Germany on 3 September 2015. The Applicant also said that, although he and ‘H’ were provided identical documents from the court written in Italian (the documents summarised at paragraphs 33–39), he had a conviction recorded and ‘H’ did not.
On 19 December 2016, the Federal Central Registry responded by letter to the Applicant’s German lawyer, declining to remove the entry on his Record of Criminal Convictions. This letter included the following statements:
Your client was convicted on 6^th March 2014 by the Collegiate Court of Ancona, Italy of aiding and abetting unauthorised entry and residence under Article 12(1) of Italian Legislative Decree Law no 196. The court sentenced the defendant to 3 years and 4 months imprisonment and a fine of 10,000 Euros…
The Federal Office of Justice, as the registering authority, is precluded from examining the foreign conviction from a legal and factual point of view.
Your objections that your client had no knowledge of the Italian conviction do not justify refraining from entering the decision in the Federal Central Register.[19]
[19] Exhibit A5.
At the Tribunal hearing, the Applicant said that he only received a copy of this letter date-stamped 21 December 2016 in December 2022 after he requested his German lawyer to send him a copy of all documents he held in relation to his conviction in Italy. The Applicant said that he was living in Australia in December 2016 and the letter may have been misplaced if his German lawyer forwarded it to his parent’s address in Australia. He also said the end of his marriage with his ex-wife was difficult, and she threw away many of the documents he had left in Germany.
Finally, the Applicant gave evidence that he did not know he had a criminal conviction because he ‘never served any time in jail’ and was ‘not forced to pay the fine’.[20] He also confirmed that he had not met the woman prior to seeing her at the petrol station at Patras and would never have offered to give her a lift from the ship to the Ancona train station if he knew she was seeking to enter Italy using a false identification card as he knows this is illegal.
[20] Exhibit A1, 6.
Primary Considerations – Ministerial direction no. 90
Primary Consideration 1: Protection of the Australian community from criminal and other serious conduct
Paragraph 8.1 of Direction No. 90 outlines the Government’s commitment to protecting the Australian community ‘from harm as a result of criminal activity or other serious conduct by non-citizens’ and requires that I give consideration to:
(a)the nature and seriousness of the Applicant’s conduct to date; and
(b)the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
Paragraph 8.1.1 requires that I consider the nature and seriousness of the Applicant’s ‘criminal offending or other conduct to date’.
Having regard to the factors in subparagraph 8.1.1(1) of Direction No. 90, I make the following findings about the nature and seriousness of the Applicant’s conduct to date.
The Applicant’s criminal offending or other conduct comprises a single conviction; the available documentation and context of this conviction is set out at paragraphs 30–51.
Based on the Applicant’s ‘Record of Criminal Convictions’, I am satisfied he was convicted in the Collegiate Court Ancona, Italy on 6 March 2014 of the offence, ‘Assistance for illegal entry and illegal residence’, and sentenced to three years and four months imprisonment and fined Euro 10,000. I am further satisfied this conviction became ‘final and absolute’ on 2 December 2014.
I accept this offence comprises serious conduct. However, in the context of factors set out in subparagraph 8.1.1(1)(a) and (b) in Direction No. 90, I find this conduct is not a conviction for a violent or sexual crime, or an act of family violence, which are ‘viewed very seriously by the Australian Government and the Australian community’. The conduct also did not involve him causing a person to enter into a forced marriage and was not committed against a vulnerable person, which is conduct ‘considered by the Australian Government and the Australian community to be serious’.
The nature and seriousness of the Applicant’s conviction was the subject of submissions from the Minister’s representative, who contended the conviction was equivalent to people smuggling and lodged an Australian Federal Police document that stated: ‘people smugglers are individuals or groups who assist others to illegally enter a country’ and ‘are paid by those who wish to enter a country illegally’.[21]
[21] Exhibit R1, 30.
I have difficulties accepting this characterisation of the Applicant’s conduct and conviction for the following reasons.
First, there is no evidence the Applicant received any payment or other benefit to assist the woman to enter Italy. In this regard, I accept the Applicant’s evidence (including under detailed cross-examination) was consistent, open and credible, and I am satisfied that:
(a)he did not know the woman and only met her by chance prior to boarding the ship at Patras;
(b)he offered to give her a lift to the ship as he thought she would have difficulty walking to the port at Patras with her bags;
(c)they passed through two police checkpoints in Patras without incident;
(d)he offered to give her a lift from the ship to the train station at Ancona; and
(e)he did not know her identification documents were fraudulent.
While there are minor factual discrepancies in the Applicant’s statutory declarations (such as whether he offered to give the woman a lift to the train station in Ancona or the train station in Milan), I accept these are readily explained by his limited ability to read and write in the English language (and consequently, his reliance on other people to read and check these written statements), and do not undermine the Applicant’s evidence that he offered the woman a lift to assist her and would not have done this if he knew her identification documents were fraudulent. Relevantly, I note that many of the character references and witness statements before the Tribunal state that the Applicant’s offering to assist another person without any agenda is entirely consistent with his character.
Second, in the absence of any evidence regarding the proceedings in the Collegiate Court Ancona on 6 March 2014 and 2 December 2014, it is almost impossible for the Tribunal to accurately understand and make conclusions about the evidence relied upon by the court and the basis for the Applicant’s recorded conviction. Indeed, the available documents from the police and public prosecutor’s office only contain allegations about the Applicant’s offending. It is also my view that the language in the Magistrate’s order on 26 August 2013 to reject the public prosecutor’s request for ‘custodial detention’ and ‘immediately’ release the Applicant and his brother could be interpreted to mean that these allegations were not upheld in the court on 26 August 2013.
Third, the evidence before the Tribunal shows significant gaps and inconsistencies in the legal processes that led to and followed the Applicant’s recorded conviction including:
(a)the Applicant did not receive prior notice of the Collegiate Court Ancona proceedings on 6 March 2014 and 2 December 2014, even though an address for service (his residential address) is stated in the documents completed by the police and public prosecutor in August 2013;
(b)the Applicant was convicted by the Collegiate Court Ancona on 6 March 2014 in absentia and did not have an opportunity to provide further evidence with the assistance of a translator and lawyer;
(c)the Applicant was not informed about the outcome of proceedings in the Collegiate Court Ancona until 2015 and, with the assistance of his German lawyer, he then requested to have the record entry removed;
(d)the Applicant has not been required to serve time in prison or pay the fine; and
(e)the Applicant’s brother, who had identical allegations and proceedings in the Tribunal of Ancona in August 2013, has never received a record of conviction.
Despite these concerns about the characterisation and context of the Applicant’s conviction, I find that an objective assessment of the Applicant’s sentence of imprisonment of three years and four months reflects conduct that is serious. I note the Applicant’s conviction was made in accordance with article 12(1) of the Italian Legislative Decree, which states:
Unless the fact constitutes a more serious crime, whoever, infringing the provisions of the consolidated act, promotes, directs, organises, finances or transports aliens in the State’s territory or carries out other acts aimed at their illegal entry in the State’s territory, or in another State of which the person is not a citizen or does not have the right to permanent residence, is punished with imprisonment from one to five years and with a 15,000 Euro fine for each person.[22]
[22] N. 286 dated 25 July 1998, Consolidated act of provisions concerning regulations on immigration and rules about the conditions of aliens. An unofficial English translation of this legislation was filed by the Applicant: see A1, 77.
However, the serious nature of this offence is to be weighed against the offence comprising the Applicant’s only conviction. I find no evidence of any other criminal or serious conduct by the Applicant either in Australia or overseas and, consequently, there is no cumulative effect of repeated offending or trend of increasing seriousness of offending.
In relation to subparagraph 8.1.1(1)(f) of Direction No. 90, the legal representatives of the Minister and the Applicant provided submissions about whether the Applicant ‘provided false or misleading information to the Department’ by not disclosing his criminal offending.
The evidence before the Tribunal shows the Applicant completed immigration forms on his arrival into Australia on 7 March 2016, 5 May 2017, 16 June 2018 and 21 June 2019 in which he declared he did not have any criminal convictions.[23] The Applicant also answered ‘no’ in response to a question about whether he had ever been convicted of an offence in any country (including any conviction which is now removed from official records) in his application for a Temporary Work (Skilled) (Subclass 457) visa lodged on 21 July 2016 and his Partner (Subclasses 820/801) visas application lodged on 3 September 2018.[24] The Applicant only disclosed his conviction in a ‘Personal particulars for assessment including character assessment’ (Form 80) that he lodged on 4 October 2020.[25]
[23] Exhibit G-G2, 44-47.
[24] Exhibits R1, 15 and G-G2, 82.
[25] Exhibit G-G2, 93
Based on this evidence, I am satisfied the Applicant failed to disclose his criminal record in immigration and visa documents submitted to the Australian Government. However, I also accept the oral evidence of the Applicant that this was not a deliberate act but rather he did not understand, both due to language and translation difficulties as well as uncertainty about the status of the entry on his ‘Record of Criminal Convictions’ dated 26 July 2018, that he was required to declare this record to the Australian Government. I accept that it has only been since the Applicant’s visa was cancelled and he received a copy of the letter in December 2022 from the Federal Central Registry in Germany (dated 19 December 2016) that he has fully understood the seriousness of the conviction. I consider this is a plausible explanation in view of the Applicant’s limited ability to read, write and speak English, and the complexities involved in translating legal documents between three languages and legal systems in Italy, Germany and Australia.
Overall, I am satisfied the nature and seriousness of the Applicant’s conduct weighs for exercising the discretion to refuse to grant the Applicant’s visa. However, I place less weight on this consideration due to the complexity of understanding the basis for the Applicant’s conviction in the absence of any documentation pertaining to the Collegiate Court Ancona proceedings on 6 March 2014 and 2 December 2014, and because the Applicant only has a single recorded offence.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
At subparagraph 8.1.2(1) of Direction No. 90, the Minister states the view ‘that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases’ and ‘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’.
Subparagraph 8.1.2(2) of Direction No. 90 sets out that, in assessing the risk that may be posed by the Applicant to the Australian community, I must have regard to, cumulatively:
the nature of the harm to individuals or the Australian community if he engages in further criminal or serious conduct; and
(b)the likelihood of him engaging in further criminal or serious conduct, taking into account:
(i)information and evidence on the risk of him re-offending, and
(ii)evidence of rehabilitation ‘at this time’, giving weight to time spent in the community since his most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa, whether the risk of harm may be affected by the duration and purpose of his intended stay, the type of visa and whether there are ‘strong or compassionate reasons’ for granting a short stay visa.

The Applicant’s criminal conduct comprises a single conviction. There is no evidence the Applicant condones behaviour including the illegal entry into countries and he clearly stated to the Tribunal that he would never have offered the woman a lift from the port to the Ancona train station if he suspected her identification documents were fraudulent.
Prior to and since his arrival in Australia, the Applicant has lived a prosocial life.
The Applicant and members of his family left Iraq in difficult circumstances. Nonetheless, the Applicant commenced a life in Germany where he was employed full-time, married and had three children, and purchased a house. Following the breakdown in his marriage, he travelled to Australia to visit his parents and three siblings.
In Australia, the Applicant commenced a relationship with and married Ms ‘A’, and has been a loving, caring and involved father to three children. The Applicant has maintained consistent full-time employment as a chef when he has been permitted to work and paid taxes to the Australian Government, and he and Ms ‘A’ have purchased a home. The Applicant has continued to have contact with and provide financial support to his children in Germany. Furthermore, the Applicant maintains close, positive and caring relationships with members of his family in Australia, including his siblings who are employed full-time and his parents who are elderly.
I find there is nothing in this evidence to suggest the Applicant is likely to engage in further criminal or serious conduct.
On balance, I am satisfied the primary consideration of protection of the Australian community weighs for exercising the discretion to refuse to grant the Applicant’s visa. However, I place less weight on this consideration in view of my finding that the Applicant’s risk of future criminal conduct is negligible.
Primary Consideration 2: Family violence committed by the Applicant
There is no evidence the Applicant has engaged in conduct that constitutes family violence as defined in Direction No. 90 and consequently, I am satisfied this consideration has neutral weight in relation to exercising the discretion to refuse the Applicant’s visa.
Primary Consideration 3: Best interests of minor children in Australia affected by the decision
Subparagraph 8.3(4) of Direction No. 90 lists the factors I must consider in considering whether cancellation of the Applicant’s visa is in the best interests of a minor child (under 18 years old at the time of the refusal) affected by the decision. The relevant factors include:
the nature and duration of the relationship between the child and the Applicant (placing less weight where the relationship is non-parental, there is no existing relationship or long periods of absence, or limited ‘meaningful contact’);
(b)the extent to which the Applicant is likely to play a positive parental role in the future taking into account the length of time until the child turns 18 years old;
(c)the impact of the Applicant’s prior and future conduct, and whether that will have a negative impact on the child;
(d)the likely effect any separation would have on the child;
(e)whether there are other persons who already fulfil a parental role for the child; and
(f)any known views of the child.
I have set out evidence about the minor children of Ms ‘A’ and the Applicant in paragraphs 23–27.
Based on this evidence, I am satisfied that ‘E’ (10 years old), ‘F’ (eight years old) and ‘G’ (three years old) would be significantly and adversely affected by the decision to refuse to grant the Applicant’s visa. In particular, I am satisfied the evidence shows the Applicant has developed close and loving relationships with his stepson and stepdaughter over the past six years; they call him ‘dad’ and he considers they are ‘his children’.
The Applicant’s role as a caring and engaged father to ‘E’ and ‘F’ is especially important due to the limited and negative impact of their biological father on their lives. I have had particular regard to the note written by ‘F’ in which she described the Applicant as an engaged and loving father, and articulated the consequences for her and her brothers if the Applicant returns to Germany and her immediate family members are separated. I have also considered the Applicant’s oral evidence, which showed he is understanding, patient and caring with ‘E’. He outlined some of the strategies he discusses with ‘E’ to assist him and ensure he is included in family and school activities, which is important in view of ‘E’’s complex disabilities.
I have also considered the evidence of Ms ‘A’, who said that ‘E’ and ‘F’ would not be able to go to Germany if the Applicant is removed from Australia. Ms ‘A’ stated that the biological father of ‘E’ and ‘F’ would not agree to them leaving Australia, and the complexity of ‘E’’s disabilities and reliance on medical support in Australia would further mean he would be unable to live in Germany. I find that this means the Applicant would be forever separated from ‘E’ and ‘F’ if he is removed from Australia.
The evidence is also consistent that the Applicant has a very close relationship with ‘G’, his three-year-old son with Ms ‘A’, who is described as the Applicant’s ‘shadow’.
For completeness, I note the Applicant also has a niece (seven years old) and a nephew (three years old) who are the children of his younger sister, Ms ‘D’. In her evidence to the Tribunal, Ms ‘D’ said that her children adored the Applicant, but she also acknowledged her children had other people (herself and her husband) who fulfil a parental role in their lives. I therefore place less weight on the best interests of these two children.
Overall, I am satisfied the evidence shows the primary consideration of best interests of minor children in Australia weighs very strongly against exercising the discretion to refuse to grant the Applicant’s visa. I place significant weight on this consideration in view of the young ages of ‘E’, ‘F’ and ‘G’, the positive parental role the Applicant has played in their lives, and the adverse effect on these children if they are separated from the Applicant.
Primary Consideration 4: Expectations of the Australian community
Subparagraph 8.4(1) of Direction No. 90 provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In subparagraph 8.4(2) of Direction No. 90, the Minister states that visa refusal may be appropriate because character concerns or offences are such that the Australian community would expect the person should not be granted a visa; and the Australian community expects the Australian government can and should refuse entry to non-citizens if they raise serious character concerns through conduct including ‘involvement or reasonably suspected involvement in…people smuggling’. Further, expectations of the Australian community ‘apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community’: subparagraph 8.4(3) of Direction No. 90.
Subparagraph 8.4(4) of Direction No. 90 states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Considering the requirements of paragraph 8.4 and the principles set out in paragraph 5.2 of Direction No. 90, I am satisfied the Australian community expects a non-citizen will obey Australian laws, not cause harm to individuals or the Australian community, and the Australian government should refuse the visa of a non-citizen if they commit serious crimes.
I have set out the nature and seriousness of the Applicant’s conduct and the likelihood of him committing further offences in paragraphs 53–77. At paragraphs 58–63, I have also outlined the difficulties associated with definitively describing the Applicant’s conduct as ‘people smuggling’ given the very limited evidence before the Tribunal.
Submissions provided by the Applicant’s legal representative referred to the decision of FYBR v Minister for Home Affairs[26] and contended that the weight afforded to this consideration ‘must be affected by the circumstances of the case’ including the seriousness of the offending, the Applicant’s personal circumstances and any relevant factors in mitigation.[27]
[26] [2019] FCAFC 185.
[27] Applicant’s Statement of Facts, Issues and Contentions, 8 December 2022, [56]-[63].
I have considered the evidence, submissions made by the Applicant’s legal representative and the requirements set out in paragraph 8.4 of Direction No. 90. On balance, I am satisfied the primary consideration of expectations of the Australian community weighs for exercising the discretion to refuse to grant the Applicant’s visa. However, I place less weight on this consideration due to the circumstances and context of the Applicant’s conviction and his current personal circumstances.
Other Considerations – Ministerial direction no. 90
Section 9 of Direction No. 90 lists other considerations that I must also take into account in making a decision under subsection 501(1) of the Act. While this list is not exhaustive, I find no evidence that there are any other considerations that are either relevant or that I should have regard to in these proceedings.
Other Consideration 1: International non-refoulement obligations
There is no evidence international non-refoulement obligations are engaged in this matter and therefore, I am satisfied this consideration has neutral weight in relation to exercising the discretion to refuse the Applicant’s visa.
Other Consideration 2: Extent of impediments if the Applicant is removed from Australia
The extent of impediments if the Applicant is removed from Australia relates to his capacity to establish himself and maintain basic living standards in Germany. Subparagraph 9.2(1) of Direction No. 90 states that I must consider the Applicant’s ‘age and health’, whether there are ‘substantial language or cultural barriers’, and any ‘social, medical and/or economic support’ available to him in Germany.
The Applicant is 50 years old. He has no medical or health concerns.
The Applicant lived in Germany from 1997 to 2016, and can speak, read and write in the German language. The Applicant has family members in Germany including three children and three older siblings. I find no evidence of language or cultural barriers to the Applicant establishing himself in Germany and, based on his employment history, I believe he would be able to find employment in Germany.
However, I accept the Applicant’s evidence that he would need to stay (at least in the short-term) with family members, and he may have difficulties finding employment. I also accept that the Applicant and Ms ‘A’ have invested their savings (which includes proceeds from the sale of the Applicant’s house in Germany) into a home in Australia where they live with their three children.
On balance, I am satisfied the other consideration of the extent of impediments if the Applicant is removed from Australia should be given a neutral weighting in exercising the discretion to refuse to grant the Applicant’s visa.
Other Consideration 3: Impact on victims
There is no evidence that there are any individuals who are the victims of the Applicant’s offending; consequently, I am satisfied this other consideration has neutral weight in relation to exercising the discretion to refuse the Applicant’s visa.
Other Consideration 4: Links to the Australian community
1. The strength, nature and duration of the Applicant’s ties to Australia
In considering the strength, nature and duration of the Applicant’s ties to Australia, subparagraphs 9.4.1(1) and (2) of Direction No. 90 stipulate that I must consider any impact of the decision on the Applicant’s ‘immediate family members’ in Australia where they are Australian citizens or have a right to remain in Australia indefinitely, and I must have regard to:
how long the Applicant has resided in Australia, including whether he arrived as a young child, noting that:
(iii)less weight should be given where he began offending soon after arriving in Australia; and
(iv)more weight should be given to time he has spent contributing positively to the Australian community;
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
I have set out the evidence about the Applicant’s family members living in Australia in paragraphs 18 and 20–27. I am satisfied the Applicant’s parents and his siblings, Mr ‘B’, Ms ‘C’ and Ms ‘D’ (and their extended families) are Australian citizens. I am further satisfied the Applicant’s wife, Ms ‘A’, her children, ‘E’ and ‘F’, and their son, ‘G’, are Australian citizens. I also accept that members of Ms ‘A’’s extended family are Australian citizens.
I have set out my consideration of the best interests of the Applicant’s children, ‘E’, ‘F’ and ‘G’, at paragraphs 79–86. I place significant weight on the positive and loving relationship the Applicant has with these three children in relation to the strength of his ties to Australia.
I have also considered the written and oral evidence of Ms ‘A’, and I observe that she and the Applicant have worked together over the past six years to create a caring, loving family and home. Ms ‘A’ has maintained employment and the Applicant, where his visa has permitted, has also been employed on a full-time casual basis. They have purchased a home close to the school that ‘E’ attends and are involved with and supportive of their children and extended family members.
I am satisfied the impact on Ms ‘A’ if the Applicant is removed from Australia would be extraordinarily difficult; she would be required to raise her three children (including a child with disabilities) on her own and earn sufficient income to pay for the mortgage, household expenses and medical costs for ‘E’. I am also satisfied that Ms ‘A’ and the Applicant have a genuine, committed and loving relationship, and the Applicant’s removal from Australia would be emotionally devastating for them both. The note written by ‘F’ and the evidence of Ms ‘A’ provided some insights into the family’s emotions: ‘F’ stated her concern that she may lose her father and younger brother; and Ms ‘A’ said she could not leave Australia because ‘E’ and ‘F’ would not be permitted to leave by their biological father, and the nature and complexity of ‘E’’s disabilities mean that he would be unable to cope with living in Germany.
The Applicant also has close and caring relationships with his parents, his siblings and their families. Both Mr ‘B’ and Ms ‘D’ provided articulate and considered evidence at the Tribunal hearing that their family had already been through substantial loss due to them leaving Iraq separately as refugees, and the Applicant’s removal from Australia would aggravate this feeling of loss. I also accept that the Applicant’s parents are elderly and unwell, and he would not see them again if he is removed from Australia.
Finally, I have considered the positive contribution the Applicant has made to the Australia community. The Applicant filed references from family members, friends and colleagues who referred to him as a loving husband and father, hard-working employee and supportive friend and neighbour who always offers to help and assist people. I am satisfied that the Applicant has established genuine and strong relationships in Australia that reflect his positive contribution to the Australian community.
In view of this evidence, I am satisfied the other consideration of strength, nature and duration of the Applicant’s ties to Australia weighs very strongly against exercising the discretion to refuse the Applicant’s visa.
2. Impact on business interests
I find there is no evidence that a decision to refuse the Applicant’s visa would ‘significantly compromise’ the delivery of a major project or important service in Australia. Therefore, I find this other consideration has neutral weight in this matter.
Conclusion
For these reasons, I am satisfied that:
the primary considerations of ‘protection of the Australian community from criminal or other serious conduct’ and ‘expectations of the Australian community’ weigh for exercising the discretion to refuse to grant the Applicant’s visa, but I place less weight on these considerations for my reasons set out in paragraphs 77 and 93;
(b)the primary consideration of ‘family violence’ is not relevant to these proceedings and therefore I place no weight on this consideration; and
(c)the primary consideration of ‘best interests of minor children in Australia’ weighs very strongly against exercising the discretion to refuse to grant the Applicant’s visa and I place significant weight on this primary consideration for my reasons in paragraph 86.
In relation to the other considerations, I find:
the other considerations of ‘international non-refoulement obligations’, ‘impact on the victim’ and ‘impact on Australian business interests’ are not relevant to these proceedings and therefore have no weight in relation to exercising the discretion to refuse to grant the Applicant’s visa;
(b)the other consideration of ‘extent of impediments to the Applicant if he is removed from Australia’ has neutral weight in relation to exercising the discretion to refuse to grant the Applicant’s visa; and
(c)the other consideration of ‘strength, nature and duration of ties to Australia’ weighs very strongly against exercising the discretion to refuse to grant the Applicant’s visa.
Section 7 of Direction No. 90 states that primary considerations should generally be given greater weight than other considerations. However, I am satisfied this weighting should not apply to the Applicant in these particular circumstances because I place significant weight on the primary consideration of best interests of minor children and the other consideration of the strength, duration and nature of the Applicant’s ties to his family members who are Australian citizens.
Weighing all the relevant primary considerations and other considerations, I am satisfied the discretion to refuse to grant the Applicant’s visa should not be exercised.
decision
Pursuant to subparagraph 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the Respondent on 26 October 2022 and remits the matter for reconsideration with the direction that the Applicant passes the character test for the purposes of subsection 501(1) of the Act.

I certify that the preceding 115 (one hundred and fifteen) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

.....................[sgd]....................................
Associate
Dated: 17 January 2023

Date of hearing:
9-10 January 2023

Counsel for the Applicant: Mr Nicholas Mutton

Solicitors for the Applicant: Meticus Lawyers

Respondent’s representative: Ms Shauna Roeger

Solicitors for the Respondent: Australian Government Solicitor

[2023] AATA 23

17 January 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Remedies

Statutory Construction

Date of hearing:	9-10 January 2023
Counsel for the Applicant:	Mr Nicholas Mutton
Solicitors for the Applicant:	Meticus Lawyers
Respondent’s representative:	Ms Shauna Roeger
Solicitors for the Respondent:	Australian Government Solicitor