Trikilis and Minister for Immigration and Border Protection (Migration)
[2017] AATA 1409
•6 September 2017
Trikilis and Minister for Immigration and Border Protection (Migration) [2017] AATA 1409 (6 September 2017)
Division:GENERAL DIVISION
File Number(s): 2016/1245
Re:Krystal Trikilis
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Deputy President J W Constance
Date:6 September 2017
Place:Sydney
The decision under review, being the decision made 15 February 2016, to exercise the discretion to refuse Mr Khalil’s application for a Partner visa, is set aside.
In substitution it is decided that the matter is remitted to the Minister for Immigration and Border Protection for reconsideration in accordance with these reasons for decision.
....................................[sgd]....................................
Deputy President J W Constance
CATCHWORDS
MIGRATION – visa – partner visa – refusal to grant visa – visa applicant in Palestine – character test – substantial criminal record – Israeli Military Court – convictions – guilty plea – conspiracy to commit homicide – membership of banned organisation –circumstances of conviction taken into account – false and misleading statement on application form – best interests of minor children in Australia – daughter – health issues – step-son – other considerations – impact on family – wife – serious health problems – decision set aside and remitted for reconsideration
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 27
Migration Act 1958 (Cth) ss 499, 501
CASES
Boyes v Minister for Immigration and Citizenship [2007] FCA 505
Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313; [2000] FCA 1385Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, [1999] FCA 1197
SECONDARY MATERIALS
Amnesty International 2016, Amnesty International Report 2015/16 Israel, 24 February <
Department of State 2007, Israel and the Occupied Palestinian Territories- Country Reports on Human Rights Practices, 11 March 2007 <OGD95BE922773>
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
The Israeli Military Court System, December < military_judicial_system/military_courts>
The Mackenzie Institute 2015, Al-Aqsa Martyrs’ Brigade (AAMB) 1 November < institute.com/al-aqsa-martyrs-brigade-aamb-2/>
US Department of State 2002, Patterns of Global Terrorism 2002, Appendix B: Background Information on Other Terrorist Groups < gov/documents/organization/20119.pdf>
US Department of State 2016, Israel - Country Report on Human Rights Practices 2015, 13 April <
REASONS FOR DECISION
Deputy President J W Constance
6 September 2017
1. INTRODUCTION
Ms Trikilis has applied to the Tribunal to review a decision of a delegate of the Minister to refuse to grant a partner visa to her husband, Mr Khalil. She is entitled to make this application as her interests are affected by the decision.[1]
[1] See section 27 of the Administrative Appeals Tribunal Act 1975 (Cth).
Ms Trikilis and Mr Khalil married in 2013. They have a young daughter and Ms Trikilis has a teenage son of a previous relationship.
Mr Khalil lives in West Bank, Palestine. He has never visited Australia. Ms Trikilis and the children live in Australia and are Australian citizens. Ms Trikilis and Mr Khalil have lived together for only seven months of their marriage, when Ms Trikilis travelled to the West Bank.
Shortly after the marriage Mr Khalil applied for a Partner visa so that he could come to Australia to live with Ms Trikilis and the children. On 10 February 2016 a delegate of the Minister refused the application on the grounds that Mr Khalil did not pass the character test set out in the Migration Act 1958 (Cth) and that the discretion to refuse the visa should be exercised.[2]
[2] Exhibit R1 p.10.
For the reasons which follow the decision under review will be set aside and the matter will be remitted to the Minister for reconsideration in accordance with these reasons for decision.
2. BACKGROUND
Unless stated otherwise, findings of fact in these reasons are based on the evidence of Mr Khalil. I am satisfied of the facts found on the balance of probabilities.
Mr Khalil is 30 years old. He has lived most of his life in Palestine.
Convictions by an Israeli Military Court in 2006
On 26 December 2006 Mr Khalil was convicted by the Military Court of Shomron of the offences of being a member of a hostile organisation and conspiracy to cause intentional death. The alleged conduct of which Mr Khalil was found guilty occurred when he was 19 years old.
In a statement filed in these proceedings and verified at the hearing, Mr Khalil described the circumstances of his conviction and imprisonment:
8. On 14 April 2006 I attended a traditional men's only wedding party for the groom, who was a friend of my friend Mahmoud Badran who I did not know personally, in Ramallah. I went with Mahmoud. Fireworks were let off in celebration of the wedding and some Israeli military officers arrived in response to the noise. They arrested a number of people including the groom and everyone ran away in fear because we were all afraid that they would beat us severely. In all the commotion I could not find the friend Mahmoud, who I later found out had been detained but released because he was a wealthy businessman. I was captured and severely beaten, and my left arm broken.
9. It is fairly common for people in the West Bank to let off fireworks at parties for weddings and religious holidays. In Israel they are not permitted because some people use them as weapons against the police. I did not bring any fireworks to the party and I did not light any fireworks at the party.
10. In the West Bank it is not uncommon for Palestinians to be arrested and brutally handled by the Israeli military, regardless of age or gender.
11. I have no association or connection with the AI-Aqsa Martyrs Brigade or any other armed group. I hear a lot of unidentified people firing guns near where I live but I don't have any communication or connection to them or anyone else. I do not own any guns.
12. After I was arrested I was taken to an Israeli military interrogation centre where I suffered more beatings and insults. Israeli military officers told me to sign some papers which were written in Hebrew. I told them I would not sign them because I cannot read or understand Hebrew and they beat me unconscious. When I woke up Israeli military officers told me to sign the papers or they would shoot at me. They tortured me by beating me all over my back, head, legs and arms. I couldn't use my arm for weeks afterwards. I begged them to stop and cried, and they told me “Shut up and keep your head down. Don't look up”. They denied medical treatment and just gave me Panadol. They also shot into the air to scare me, but I still refused to sign the papers. I asked to see a lawyer but was ignored.
…
14. Fourteen days after I was arrested told by Israeli military officers that I had been accused of being a member of a hostile organisation and conspiracy of an attempted murder of an Israeli civilian. I didn't know anything about these allegations or why this was happening to me. I have never been in any violent organisation nor have I attempted to or planned to harm to any person. I was never provided with any evidence of the Israeli military’s accusations and I was never told that there was any evidence apart from the accusations.
15. The prison where I was held was filthy and I was starved and humiliated by the prison officers. I was afraid that I would never get out alive and see my family again. I did not have any visitors for the first 10-11 months that I was imprisoned because the prison officers would not let my family see me.
16. My mother told me later that she had brought cigarettes and reading glasses to the prison for me. I received the cigarettes but never the glasses. My mother was unable to see me on the day she brought them because the officers refused her entry but took the cigarettes and glasses.
17. On 26 December 2006 I was convicted by an Israeli military court and sentenced to 34 months imprisonment and a fine of 2,000 shekels. I agreed to plead guilty because the Israeli soldiers told me that if I did not plead guilty and sign the papers they gave me I would receive the maximum sentence which could be more than 8 years imprisonment. My lawyer advised me to plead guilty. I was scared about how long I might have to spend in prison so I signed the plea.
18. I was released from the Israeli prison on 26 December 2008.[3]
[3] Exhibit A9 paras.8-12 and 14-18.
Mr Khalil’s family situation
Mr Khalil and Ms Trikilis married in Palestine in August 2013.[4] They have a two-year-old daughter. Ms Trikilis has a 15-year-old son of a previous relationship. Both children are living with her in Australia.
[4] Exhibit A8 para.33.
Visa application
On 30 August 2013 Mr Khalil lodged an offshore application for a Partner (Provisional)(Class UF) visa. He was sponsored by Ms Trikilis.
3. LEGISLATION
The grant of a visa to entitle a non-citizen to enter Australia is governed by the Migration Act 1958. The stated object of the Act is “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.”[5]
[5] Subsection 4(1).
Section 501 of the Act provides, in part:
(1)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.
…
(6)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));
…
(7)For the purposes of the character test, a person has a substantial criminal record if:...
(c)the person has been sentenced to a term of imprisonment of 12 months or more…
Section 499 provides, in part:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
…
(2A) A person or body must comply with a direction under subsection (1).
DIRECTION NO.65
In exercise of the power given by s 499, the Minister issued Direction No.65 on 22 December 2014. It provides “General Guidance for decision-makers and the Principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to… refuse a non-citizen’s visa under section 501CA…”.[6]
[6] Clause 5.
Paragraph 6.2 provides General Guidance in exercising the discretion to refuse the grant of a visa:
6.2 General Guidance
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused …… under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse …… a non-citizen’s visa under section 501 …… .. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in …… Part B …… of this Direction.
The Principles are set out in Paragraph 6.3:
6.3 Principles
(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.
The manner in which the discretion is to be exercised is set out in Paragraph 7. It provides that, informed by the principles in Paragraph 6.3, the decision-maker must take into account the primary and other considerations relevant to the particular case. These considerations are set out in Part B of the Direction, to which I will refer in detail later in these reasons.
Paragraph 8 provides that a visa applicant “should have no expectation that a visa application will be approved.” The paragraph further provides that “[p]rimary considerations should generally be given greater weight than the other considerations” and that “[o]ne or more primary considerations may outweigh other primary considerations”.[7]
[7] Subparagraphs (4) and (5) respectively.
4. ISSUES FOR CONSIDERATION
As Mr Khalil was sentenced to thirty-four months in prison, it is not in dispute that he has a “substantial criminal record” as defined by subsection 501(7) of the Act and therefore does not pass the character test in accordance with subsection 501(6). The discretion to refuse the application for a visa, granted by subsection 501(1), is enlivened.
It was accepted on behalf of Mr Khalil that the Military Court of Shomron is a “court” for the purposes of the Migration Act. As the determination of this question would not affect the decision I have reached, I have not given it further consideration.
The issue I have to decide is whether the discretion to refuse to grant the visa sought by Mr Khalil should be exercised.
5. CONSIDERATION
Part B of Direction No.65 sets out the primary and other considerations I must take into account in deciding whether or not to exercise the discretion to which I have referred.
5.1 Primary considerations
The Primary considerations are set out in paragraph 11 of Part B. They are:
(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.
5.1.1 Primary consideration (a): Protection of the Australian community from criminal or other serious conduct.
Paragraph 11.1 of the Direction provides that “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.” Consideration is also to be given to the nature and seriousness of the applicant’s conduct to date and the risk to the community should the applicant commit further offences or engage in other serious conduct.
5.1.1.1 The nature and seriousness of Mr Khalil’s conduct to date
Subparagraph 11.1.1 sets out further principles to which regard is to be had in considering the nature and seriousness of the non-citizen’s criminal offending. These are set out in full in the schedule to these reasons.
In determining the nature and seriousness of Mr Khalil’s conduct it is first necessary to decide the relevant conduct in which he has engaged.
The Court records
The records of the charges and the events giving rise to them are extremely limited. The documents contained in exhibit R1 include copies of the original documents and English translations.
In a document headed “Israeli Defense Army Martial Court Samaria”[8] there appear details of charges made against Mr Khalil in proceedings instituted by the Military Prosecution. The document is undated.
[8] Exhibit R1 pp.59-60.
The charges made against Mr Khalil were that:
·in April 2006, in company with others he manufactured and planted a bomb in Balata Camp or in a nearby region;
·about two months before his arrest on 14 April 2006 he met with another person and informed him that he had an explosive belt; Mr Khalil then asked the other person to recruit a suicidal person; Mr Khalil continued searching for such a person but the plan was not executed;
·during July 2005, at Balata Camp, Mr Khalil entered the Al-Aqsa Martyrs Brigades Organization, a banned organization; his membership continued until the day of his arrest.[9]
[9] Exhibit R1 pp.59-60.
The Protocol of the Military Court of Shomron dated 26 December 2006 records as follows
The Accused is identified by the Presiding Judge
Evidence for Sentencing
Prosecution: no evidence for sentencing
Defence: no evidence for sentencing
Prosecution Summary:
The parties agree to mutually ask the court to impose a mutually agreed sentence of 34 months actual imprisonment, a fine of NIS 2000 and an additional suspended sentence as the court finds appropriate.
I request the judge to endorse this mutual agreed settlement. The accused was convicted of 2 offenses. The first offense being membership in a hostile organization until his arrest. The second offense being conspiracy to cause intentional death. This conspiracy was at its initial stage and ended in discussions only. Additionally it did not result in any harm. Therefore, in light of the accused’s admission and clean record, I request that the court honours this settlement.
Defence Summary:
I join the prosecution in requesting that the court accepts the settlement. The accused made his confession immediately following the tabling of the amended charge sheet. Not all conspiracies are similar. In this case, the conspiracy was in its early stages. This case involves an accused who would like to marry and return to his home and embark on a new chapter. We are in the middle of the holiday season and I request your honour to accept the settlement.
Verdict
Under the circumstances and given that the conspiracy was at its very early stages and did not move beyond initial discussions, and in light of the accused’s confession, his clean record, I find it appropriate to accept the mutually agree settlement. Therefore, I sentence the accused as follows:
-34 months actual imprisonment from the date of his arrest on 14 April 2006
-A fine of NIS 2000, or 2 months of imprisonment in lieu. The fine must be paid by the date of release and will be a condition for the release.
-24 months of suspended sentence for a period of 5 years from the date of his release from jail with the condition that he does not repeat the same or similar offenses.
The right to appeal is in accordance with the law.
Delivered on 26 December 2006 in the presence of both parties.
Signature: (President)[10]
Certificate of Good Conduct issued by Palestinian authorities[11]
[10] Exhibit R1 p.58.
[11] Exhibit R1 p.63.
On 29 July 2013 the Ministry of Interior of the State of Palestine issued a certificate that Mr Kahlil was “of good conduct with no criminal record.”
Information regarding Israeli Military Courts provided by the Minister
The Minister provided references to reports by organisations and authors from several countries to assist in evaluating the evidence.
Reports by the United States Department of State and Amnesty International indicate that Palestinians may not face fair trials in Israeli Military Courts.[12]
[12] Exhibit R2 p.84 footnote 66 gives the following references: Amnesty International 2016, Amnesty International Report 2015/16 Israel, 24 February < US Department of State 2016, Israel – Country Report on Human Rights Practices 2015, 13 April, p.9.
In December 2015 Addameer Prisoner Support and Human Rights Association reported:
The military court system grants Israeli Security Agency (ISA) officers the outmost flexibility in their conduct of interrogations of Palestinian detainees and reduces legal safeguards to the absolute minimum, far below Israeli civil law standards.[13]
[13] The Israeli Military Court System, December < military_courts>.
One of the issues identified by Addameer was:
Language is a fundamental problem in the military courts. Israeli jurisprudence provides that a prisoner must be interrogated in his native language and that his statement must be written in that language. In practice, however, the detainee’s confession or statement is frequently written in Hebrew by a policeman, requiring the detainee to sign a statement he or she cannot understand. Once obtained, these confessions constitute the primary evidence against Palestinian detainees in the Israeli military courts.[14]
[14] Exhibit R2 p.85.
In April 2016 the United States Department of State reported:
…Israeli military courts rarely acquitted Palestinians charged with security offenses, although they occasionally reduced sentences on appeal.
Several NGOs claimed Israeli military courts, which processed thousands of Palestinians in the West Bank during the year, were not equipped to adjudicate each case properly. NGOs and lawyers reported it was better to plead guilty and receive a reduced sentence than to maintain innocence and go through a trial that could last months, if not more than a year. Human rights lawyers also reported the structure of military trials--in military facilities with military officers as judges, prosecutors, and court officials, and with tight security restrictions—limited defendants’ rights to public trial and access to counsel.
Authorities continued to use confessions signed by Palestinian minors, written in Hebrew, a language most could not read, as evidence against them in Israeli military courts. NGOs reported that authorities often coerced these confessions during interrogations.[15]
…..
With respect to the situation in 2006, USDOS provided the following overview of the operation of military courts in the OPT:
Israeli military courts provide many of the rights granted in Israeli civil criminal courts. (See Israel Report.)
The Israeli government sometimes delayed trials for extended periods, occasionally for years, because security force witnesses did not appear, the defendant was not brought to court, files were lost, or travel restrictions delayed attorneys. Palestinian legal advocates claimed that delays were designed to pressure defendants to settle their cases, including crowded facilities, poor arrangements for scheduling and holding attorney-client consultations, and confessions prepared in Hebrew that hindered defense efforts.[16]
[15] US Department of State 2016, Israel - Country Report on Human Rights Practices 2015, 13 April, p.81
< Department of State 2007, Israel and the Occupied Palestinian Territories- Country Reports on Human Rights Practices, 11 March 2007 <OGD95BE922773>.
Incorrect statement by Mr Khalil on his application form
On the Application for migration to Australia by a partner,[17] signed by Mr Khalil on 26 August 2013, he stated that he had never been convicted of a crime or offence in any country.[18] He declared that “the information I have supplied in this application is complete, correct and up-to-date in every detail.” [19]
[17] Exhibit R1 p.22.
[18] Exhibit R1 p.31.
[19] Exhibit R1 p.40.
During an interview conducted by Australian Embassy officials in Ramallah on 27 August 2014 Mr Khalil disclosed the convictions to which I have referred earlier in these reasons.[20] At the time he said that Ms Trikilis completed the form and that she knew of his convictions. He did not know why she did not refer to them when completing the document.
[20] Exhibit R2 p.41.
In his undated statement[21] filed in these proceedings on 5 May 2017, Mr Khalil said in part:
I did not declare my convictions in my partner visa application. Krystal and my brother completed my partner visa application form for me. My older brother told Krystal not to mention my convictions in the application because they could stop us being together. Krystal disagreed with my brother but he insisted we left it out. I agreed to leave the convictions out because my brother convinced me if I put them in l would not be allowed to travel to see my family.
[21] Exhibit A9 para.20.
When Mr Khalil gave evidence at the hearing he said that when Ms Trikilis was completing the form she did not know of his convictions and that his brother convinced him not to tell her. Mr Khalil specifically denied that Ms Trikilis knowingly assisted him to provided incorrect information in the application form. He was unable to satisfactorily explain the discrepancy between his statement filed 5 May 2017 and his evidence before me.
Discussion
The circumstances of the convictions
In considering how to exercise the discretion to refuse Mr Khalil’s application for a visa it is necessary to consider how the evidence of his convictions and the circumstances of those convictions should be dealt with.
Counsel for the Minister argued that “[w]ith respect to the evidence and assertions by the visa applicant’s [sic] to the effect that he did not commit the offences …… it is not open to the Tribunal to impugn either the sentence or the essential elements of the offence which gave rise to the conviction that enlivened the respondent’s power to refuse the visa ……”[22].
[22] Respondent's Statement of Facts, Issues and Contentions 9 June 2017, para.19.
In Minister for Immigration and Multicultural Affairs v SRT [23] the Full Court of the Federal Court dealt with an appeal from a decision of this Tribunal setting aside a decision of the Minister ordering the deportation of the respondent by reason of his imprisonment for a term exceeding 12 months. This decision was made under section 200 of the Migration Act.
[23] (1999) 91 FCR 234, [1999] FCA 1197.
The Full Court said, in part:
…… where the decision to be reached depends upon there having been a sentence that satisfies s 201(c) of the Act, it is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, 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...…..
There are good policy reasons why such a principle should prevail. It could only undermine the criminal process for an administrative decision to be based on considerations inconsistent with the conviction or sentence imposed.[24]
[24] At paras.40 and 41.
However, in my view this does not mean that I must proceed on the basis that Mr Khalil has been convicted of two serious offences (one of which is very serious indeed) without taking into account the circumstances in which those convictions came about. The Full Court also said that “accepting the findings of the sentencing judge does not prevent the Tribunal from distinguishing between those findings in terms of weight.” [25]
[25] At para.39.
In SRT the Full Court referred to, and relied upon, an earlier decision of the Full Court in Minister for Immigration and Ethnic Affairs v Daniele.[26] In its judgment in that matter the Full Court said, in part:
…… the conviction itself is evidence and usually strong evidence of the commission of the crime for which the deportee was convicted.
But that is not to say that, in a review of an order for deportation, it will never be necessary or useful to give detailed consideration to the circumstances of the trial or to attempt to identify precisely the conduct which was accepted by the jury in giving its verdict. In a particular case, the circumstances of the crime may or may not be admitted. The transcript of the evidence at the trial may or may not be put in evidence. The learned trial Judge’s summing up or his remarks on sentence may or may not be in evidence. ….. But there may be before the Tribunal other evidence bearing upon the circumstances of the crime. It may be oral evidence. Or there may be other documentary evidence such as a copy of the depositions at committal proceedings. Some of the evidence before the Tribunal may tend to support the conviction. Other parts of the evidence may tend to contradict it.
The fundamental task of the Tribunal is to give to the applicant before it and to the respondent a hearing and form its own judgment on all matters which are relevant to the exercise of the power of deportation. …… The total pattern of the deportee’s behaviour, including his criminal behaviour, his personality and characteristics, the risk of recidivism, the risk of harm to the community should he remain in Australia, the prospects of his rehabilitation and the detriment to him should he be deported are all matters concerning which the Tribunal will usually have to make up its own mind and concerning which the view of the jury as to whether or not a crime occurred may, in a particular case, be of only limited value.[27]
[26] [1981] FCA 212.
[27] At p.2.
Clearly the Court envisaged that the Tribunal would not be constrained to an uncritical acceptance of the reasons behind the conviction and/or the manner in which the conviction occurred.
The Federal Court also considered that there may be circumstances when the principle enunciated in SRT will be applied taking into account the circumstances of the conviction. After referring to that principle Branson J said that:
Nonetheless, it is known that there are circumstances in which an individual, for various reasons, may opt to be convicted on his or her plea of guilty although a defence to the charge might be available. On rare occasions, evidence is found, long after a conviction, that shows that the conviction or sentence involved a miscarriage of justice.
……
As a consequence, in my view, the Act should be construed as requiring a decision-maker under s 200 of the Act to treat a conviction and sentence (not being a conviction and sentence upon which the power to deport is based) a strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted (see Spackman at 635). This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence, a plea of guilty and with conviction and sentence follow a contested factual hearing.[28]
[28] Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313; [2000] FCA 1385 paras.39 and43. The reference to Spackman was a reference to General Medical Council v Spackman [1943] AC 627.
Although the Court was referring to a conviction which did not found jurisdiction, His Honour nevertheless acknowledged that there may be circumstances in which the Tribunal could look beyond the finding of a court in a criminal matter. In particular the Court referred to a sentence following a plea of guilty.
The question of visa cancellation was also considered by the Federal Court in Boyes v Minister for Immigration and Citizenship.[29] Kenny J said in part:
In SRT, a Full Court held that it was not open to the Tribunal, in such a case as this, to impugn either the sentence or the essential facts found by the sentencing judge in sentencing: see SRT ….. also Minister for Immigration and Ethnic Affairs v Daniele [citations omitted] …… It was to be borne in mind, however, that the Tribunal considered matters at a time different from the sentencing judge and that the Tribunal may be required to give consideration to the fact that some relevant circumstances had changed between the sentencing and the Tribunal’s consideration of the matter. Moreover, so the Court said in SRT at 243, “accepting the findings of the sentencing judge does not prevent the Tribunal from distinguishing between those findings in terms of weight.” [30]
[29] [2007] FCA 505.
[30] At para.27.
A careful consideration of the above judgments leads me to conclude that whilst I am bound to accept that Mr Khalil was convicted of the offences of membership of a hostile organisation and conspiracy to cause intentional death, I am not bound to ignore the circumstances in which the convictions took place. In this application, to do so would be to proceed on a premise which I am satisfied, on the balance of probabilities, is false.
On the basis of the unchallenged evidence of Mr Khalil I am satisfied that he did not engage in improper conduct such as that alleged in the Israeli Military Court. In reaching this conclusion I have given significant weight to the fact that the Minister did not challenge Mr Khalil on any aspect of his evidence as to the circumstances of his arrest, his imprisonment (either before or after his appearance before the Court), his decision to enter a plea of guilty or his conviction.
Counsel for the Minister did argue that evidence as to the circumstances of the conviction was irrelevant and should be disregarded. However the Minister was put on notice before the hearing that “the Tribunal is being asked to look behind the fact of [Mr Khalil’s] conviction to the reality of the events which occurred.”[31] For this reason, in fairness to Mr Khalil his evidence in regard to the circumstances should be accepted. In addition there is independent corroboration of his evidence.
[31] Applicant’s Statement of Facts, Issues and Contentions dated 8 May 2017 p.12.
The record of the Court hearing[32] discloses that there was no evidence for sentencing taken. It appears that the findings made by the Court were based solely on the agreement reached between Mr Khalil and the Prosecution.
[32] Exhibit R1 p.58.
I also found support for the conclusion I have reached in the material provided by the Minister as to the nature of the legal process in the Israeli Military Courts at the time Mr Khalil was convicted. While I am unable to verify the accuracy of the material, and accepting that it may be influenced by the political views of the various authors, it does indicate that there are widely held concerns as to the fairness of the procedures in the Military Courts. Further there were reports which provide some corroboration of his evidence as to the manner in which he was treated while in custody and of the circumstances leading up to his agreeing to the plea bargain put to the Judge.
I have taken into account also the evidence of both Mr Khalil and Ms Trikilis that in August 2013 Mr Khalil was able to move through Israeli checkpoints using his West Bank Identification Document.[33] It is unusual that a person who had been charged with making and planting a bomb and convicted of planning to kill persons would be able to move across borders in this manner.
[33] Exhibit A8.
The process before the Court also raises concerns. Mr Khalil was charged with manufacturing and planting a bomb in April 2006, within the two weeks immediately prior to his arrest.[34] Notwithstanding such a serious allegation, for reasons unknown the Prosecution was prepared not to proceed with this charge. The Court record shows that the Judge was satisfied that the alleged planning by Mr Khalil did not proceed beyond “its very early stages and did not move beyond initial discussions.” [35]
[34] Exhibit R1 p.59.
[35] Exhibit R1 p.58.
The provision of false information in the visa application
The remaining conduct of Mr Khalil which must be considered is his deliberate provision of false information in his application form.
Clause 11.1.1(1)(h) specifically requires me to have regard to whether Mr Khalil “has provided false or misleading information to the department, including by not disclosing prior criminal offending”.
Not only did Mr Khalil deliberately provide false information in his application, he then misled the Embassy officials who interviewed him 12 months later by telling them that he did not know why Ms Trikilis did not include details of his convictions on the application form.
As Direction No.65 makes clear, the grant of a visa to live in this country is a privilege. To deliberately be dishonest in the application for that privilege and in a subsequent interview, must be regarded as serious misconduct showing a willingness to disobey the laws of Australia.
5.1.1.2 The risk to the Australian community should Mr Khalil commit further offences or engage in other serious conduct
Should Mr Khalil be permitted to reside in Australia and he engage in conduct involving the deliberate provision of false or misleading information to government representatives, there would be a risk of harm to the Australian community. This could involve Mr Khalil obtaining benefits (whether monetary or otherwise) to which he was not entitled. Such conduct could involve an unnecessary drain on government revenues and a possible waste of government resources. It could undermine respect for our laws if Mr Khalil was seen to be getting benefits and privileges to which he was not entitled.
5.1.2 Primary consideration (b): Best interests of minor children in Australia affected by the decision
The Minister accepts that this consideration favours the grant of a visa, and in relation to the infant daughter of Mr Khalil and Ms Trikilis, “strongly so.” [36]
[36] Respondent’s Statement of Facts, Issues and Contentions dated 9 June 2017.
“A”, daughter aged 2 years 4 months
Based on the evidence of Ms Trikilis I am satisfied of the facts set out in the following three paragraphs.
Apart from a short visit to see her father, A has lived in Australia with Ms Trikilis all her life. She is an Australian citizen.
A suffers from a medical condition which increases the risk of her suffering infections. On occasions her condition suddenly deteriorates and she requires urgent medical attention in hospital. She has been required to undergo surgical procedures, the last being in July 2016.
A has come to know her father by regular video communication and during her visit to meet him. She has a close relationship with him and misses his being with her.
“H”, Ms Trikilis’ son aged 15 years
H provided an undated statement which was lodged in the Tribunal on 5 May 2017.[37] He did not give oral evidence.
[37] Exhibit A3.
I am satisfied of the facts set out in the following two paragraphs based on H’s statement. Counsel for the Minister did not challenge this evidence.
H has very limited contact with his biological father with whom he has a poor relationship. He stated that he considers Mr Khalil to be his father and calls him “Dad”. Their first contact with each other was by video about eight years ago. They have a close relationship and H is happy that his mother and step-father married.
H does not wish to live overseas should his mother decide to live with his step-father in Palestine. He experienced fighting between Israeli and Palestinian forces when he travelled with his mother to the West Bank in 2014. If he was to leave Australia to live it would adversely affect his schooling, his recreational activities, his social life and future employment opportunities.
5.1.3 Primary consideration (c): Expectations of the Australian Community
Clause 11.3 of the Determination provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have regard to the Government’s views in this respect.
The Australian community expects that an applicant for a visa to reside in Australia will obey Australian law. On the basis of Mr Khalil’s failure to be honest in making his application, the community is likely to be concerned that he will not respect Australia’s laws if he is granted the privilege of living here. Direction No.65, issued by a former Minister for Immigration and Border Protection makes it clear that it is the view of the Government that our immigration laws are to be obeyed.
5.2 Other Considerations
Under the heading “Other considerations – visa applicants” Paragraph 12 of the Determination provides:
(1)In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims;
(d)Impact on Australian business interests.
The subparagraphs providing further detail in relation to each of the considerations referred to above are set out in the schedule to these reasons.
There is an obvious drafting error in the opening words of this paragraph. They refer to “deciding whether to cancel a visa”, rather than to deciding whether to refuse a visa. Nevertheless, it is clear that it was the intention of the Minister that this paragraph refers to an application for the grant of a visa. The paragraph is in Part B which specifically relates to visa applications. Further, sub paragraphs (2) – (6) inclusive all refer to a visa application.
International non-refoulement obligations
There are no international non-refoulement obligations relevant in this application.
Impact on family members
I have already dealt with the impact of a decision to refuse Mr Khalil’s application on his daughter and step-son.
Ms Trikilis
Ms Trikilis provided a statement dated 28 April 2017[38] and gave evidence. On the basis of her evidence I make the findings of fact set out in the following six paragraphs.
[38] Exhibit A8.
Ms Trikilis has multiple serious health problems which require her to seek regular treatment. She suffered severe domestic violence in a former relationship.
In 2014 Ms Trikilis and her son H stayed in the West Bank for three months so that they could spend time with Mr Khalil as a family. During that time they experienced active warfare between Israeli and Palestinian forces which was a terrifying experience for both of them.
In early 2016 Ms Trikilis took their daughter, A, to Palestine to meet her father. A reacted very positively to her father’s presence from the outset.
Ms Trikilis believes that she cannot leave H on his own in Australia while she travels to the West Bank as he needs to be cared for and assisted to attend school and TAFE.
It is Ms Trikilis’ strong preference to live in Australia with her husband rather than to move to the West Bank. In Australia she has access to better medical care for A and for herself. H is in his final years of school and is a talented footballer. He has much better prospects of succeeding by remaining in Australia.
In 2008 Ms Trikilis’ second son, R, passed away aged three years. She wishes to remain near to her son’s grave and to be able to care for it.
Report of Ms Attley, Mental Health Specialist[39]
[39] Exhibit A5.
Ms Trikilis was assessed by Ms Attley on 15 February 2017 and 26 April 2017 on referral from her Case Worker. Ms Attley provided a report dated 2 May 2017. She did not give oral evidence and was not required for cross-examination on behalf of the Minister.
Ms Attley reported, in part:
Krystal completed the DASS 21 [Depression, Anxiety and Stress Scale] to assess her depressive, anxiety and stress related symptoms and their current severity. Krystal’s scores on all three scales were within the “extremely severe” range. These results are consistent with observations and reports from the caseworker and Krystal. Such results suggest that Krystal’s current depressive, anxiety and stress related symptoms are likely to be having a significant impact on her daily functioning.
……
She is currently residing in the home with her children and reported that Bilal (her husband) remains in Palestine due to his immigrations status. …… She has been unable to identify any positive support such as family or friends and is therefore isolated… Krystal’s scores also highlighted her isolation and lack of familial support, persistent physical health problems, significant depressive symptoms and may feel restricted in her role as a parent.…. . [40]
[40] At pp.3 & 6.
Impact on victims
There is no evidence to allow me to make any finding in relation to any possible impact of a decision to refuse or to grant a visa to Mr Khalil on the victims of Mr Khalil’s offences.
Impact on Australian business interests
There is no evidence to suggest that a refusal to grant a visa would have any impact on Australian business interests.
5.3 Discussion
This discussion is based on the premise that Mr Khalil’s convictions are not relevant to the exercise of the discretion to refuse his application for a visa. I will deal with the alternative situation in the next section of these reasons.
As I have already set out, I am to be informed by the Principles in Paragraph 6.3 in exercising the discretion to grant or refuse Mr Khalil’s application for a Partner visa.
These Principles include that being able to come to Australia is a privilege conferred 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.”
Unfortunately Mr Khalil has demonstrated a willingness to breach the law to achieve his own ends. His attempts to mislead the Tribunal indicate a lack of respect for the administration of Australia’s laws.
However, against this I must balance the interests of the two children involved and the impact of refusing the visa on Ms Trikilis. Having considered all of the material before me I have decided that these considerations outweigh any risk to the Australian community which may arise from Mr Khalil being permitted to live in Australia. As a result, the discretion to refuse to grant Mr Khalil’s application for a visa should not be exercised. His application to live in Australia should be granted.
As is acknowledged by the Minister, the interests of the daughter, A, weigh very heavily in favour of the family being together in Australia. I am satisfied that she is likely to receive better treatment of her serious medical issues if she remains in Australia, particularly as she has already been treated by specialists here. Both children will benefit from not being exposed to the risks of war associated with living on the West Bank.
Although H is nearing an age when he could live independently and remain in Australia, he too would benefit from having his step-father living with his mother and sister in Australia. I accept that he has developed a bond with Mr Khalil which had previously been lacking in his life. Alternatively a move to the West Bank to be with his family would seriously disrupt his schooling, sporting activities and social life. He has said that he does not wish to return to the West Bank.
Understandably, Ms Trikilis wishes to be able to continue living in Australia with her children. They are Australian citizens who have lived all their lives in Australia. She wishes to remain near the grave of her deceased son. It would be far less disruptive to the family for Mr Khalil to move to Australia than for Ms Trikilis and the children to move to the West Bank.
6. ALTERNATIVE REASONING
Should I be wrong in my conclusion that I should not take into account Mr Khalil’s convictions when deciding whether to exercise the discretion to refuse his application for a visa, I now turn to consider the other factors which would become relevant.
Protection of the Australian community
On the basis that Mr Khalil has committed the two offences of which he has been found guilty, the protection of the Australian community becomes an extremely important consideration. As clause 9.1(1) of Direction No.65 provides, in part:
Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Unfortunately there is very little evidence in the Military Court’s records to indicate the circumstances of the offence of conspiring to cause intentional death. Nevertheless it is a very serious conviction and one which would normally give rise to a definite expectation in the community that Mr Khalil would not be allowed to come to Australia. I am satisfied that the tolerance of a person convicted of such an offence would be low.
Similarly, the offence of joining a banned organisation (presumably banned by the Government) would be given little tolerance in Australia and would give rise to a community expectation that Mr Khalil not be permitted to come to Australia to live. This would be so even though the organisation is not registered as a terrorist organisation in this country.
These considerations weigh in favour of exercising the discretion to refuse Mr Khalil’s visa application. However for the reasons I have already stated, I am satisfied that the interests of the children and the impact on Ms Trikilis are such as to outweigh other considerations, including those relating to the protection of the Australian community.
Security checks
In reaching this conclusion I have relied on the evidence that there was considerable delay in the processing of Mr Khalil’s application while Australia’s security organisations conducted the necessary security checks.[41] On 28 August 2014 Mr Azar, Manager, Visa, Immigration and Citizenship Section, Australian Embassy Tel Aviv, sent an email to Ms Trikilis advising, in part:
The outstanding issues are:
National security checks: They were initiated soon after the application was lodged in August 2013. I have made a number of enquiries about your case and have been advised that the relevant checks are still being undertaken to ensure all legal requirements have been met.
Unfortunately, undertaking processes such as this one can take a long time to complete, in some cases more than a year. I understand your concerns and can assure you that we are unable to influence or intervene in this process. It is done through Australian agencies other than the Department of Immigration and Border Protection. As soon as we receive the outcome I will let you know.
[41] Exhibit R2 p.36.
As the Minister did not provide any evidence to suggest that an adverse finding had been made against Mr Khalil, I conclude that there are no concerns by our security organisations that Mr Khalil will engage in any conduct which would place members of the Australian community at risk of harm. In addition I have taken into account that the offences were committed 11 years ago and Mr Khalil has not committed any offence since. He now has a family to care for and he should realise that any further offending will put him at serious risk of having his visa cancelled. Should he be living in Australia he will be removed from the political situation which may have given rise to his offending.
Information regarding Al-Aqsa Martyrs Brigade provided by the Minister
The Minister provided references to reports by organisations and authors from several countries concerning the Brigade.
One of the reports referred to was the Mackenzie Institute, reported to be a Canadian based independent think-tank. In 2015 it reported that the objective of the Brigade was the creation of a Palestinian autonomous state; it was not an Islamist movement.[42]
[42] The Mackenzie Institute 2015, Al-Aqsa Martyrs’ Brigade (AAMB) 1 November <>
In 2002 the United States Department of State noted that the Brigade “has ‘carried out shootings and suicide operations against Israeli military personnel and civilians and has killed Palestinians who it believed were collaborating with Israel’”[43]
[43] US Department of State 2002, Patterns of Global Terrorism 2002, Appendix B: Background Information on Other Terrorist Groups, p.102 <>
Reports from 2014 to2016 indicate that at that time the Brigade was still active.
The Brigade does not appear on the Australian Government National Security website list of designated terrorist organisations. It is listed as such by a number of other countries.
Discussion
Having considered the above matters I have come to the conclusion that there will be minimal, if any, risk to the Australian community if Mr Khalil is permitted to reside in Australia. I am satisfied that the interests of the children and Ms Trikilis outweigh any risk which might be involved. In making this decision I have relied on the manner in which this matter has been conducted by the Minister.
For these reasons, the discretion to refuse Mr Khalil’s application for a Partner visa should not be exercised.
7. CONCLUSION
The decision under review, being the decision made 15 February 2016, to exercise the discretion to refuse Mr Khalil’s application for a Partner visa, will be set aside.
In substitution it will be decided that the matter will be remitted to the Minister for Immigration and Border Protection for reconsideration in accordance with these reasons for decision.
I certify that the preceding 116 (one hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance
......................................[sgd]..................................
Associate
Dated: 6 September 2017
Date(s) of hearing: 19 & 20 June 2017 Solicitors for the Applicant: Kinslor Prince Lawyers Solicitors for the Respondent: Australian Government Solicitor SCHEDULE
11.1.1 The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the non-citizen's criminal offending or other serious conduct to date, decision-makers must have regard to:
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), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
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;
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.
…..
12.1 International non-refoulement obligations
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2)The existence of a non-refoulement obligation does not preclude refusal of a non-citizen's visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the nonrefoulement obligation exists.
(3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s50 1 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa).
(4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.
(5)If, however, the visa application being considered for refusal is a Protection visa application, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them- sections 48A and 48B of the Act refer).
(6)In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person's Protection visa application were refused, they would face the prospect of indefinite immigration detention.
12.2 Impact on family members
(1)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;
12.3 Impact on victims
(1)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;
12.4 Impact on Australian business interests
(1)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.
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