WKGJ and Minister for Home Affairs (Migration)
[2019] AATA 247
•26 February 2019
WKGJ and Minister for Home Affairs (Migration) [2019] AATA 247 (26 February 2019)
Division:GENERAL DIVISION
File Number:2018/7443
Re:WKGJ
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:26 February 2019
Place:Brisbane
The decision under review is affirmed.
........................[SGD].................................
Senior Member Theodore Tavoularis
MIGRATION – Refusal to grant a visa – Applicant is a citizen of Iran – Applicant applied for a Bridging visa – s 501 character test applied – Applicant does not pass character test in s 501(6) Migration Act 1958 (Cth) - whether discretion to refuse visa should be exercised – considerations in Direction No. 65 – whether considerations weigh in favour of refusing visa – decision under review affirmed.
Legislation
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Ahori and Minister for Immigration and Border Protection [2017] AATA 601
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Allan and Minister for Immigration and Border Protection [2016] AATA 1077
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456
Divane and Minister for Immigration and Border Protection [2016] AATA 721
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
Greene v Assistant Minister for Home Affairs [2018] FCA 919
Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Turay v Assistant Minister for Home Affairs [2018] FCA 1487
WAD531/2016 v Minister for Immigration and Border Protection [2018] FCAFC 213
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under
s 501CADirection No. 75 – Refusal of Protection Visas Relying on Section 36(1c) and Section 36(2c)(b)
REASONS FOR DECISION
Senior Member Theodore Tavoularis
26 February 2019
INTRODUCTION
This is an application for review of the decision by a delegate of the Minister for Home Affairs (the “Minister” or “Respondent”) to refuse “WKGJ” (“the Applicant”) a Bridging E (Class WE) visa (“the Visa”), pursuant to s 501(1) of the Migration Act 1958 (Cth) (“the Act”).
Under s 500(1)(b) of the Act, this Tribunal has jurisdiction to review the decision made by the Minister’s delegate.
BACKGROUND AND VISA HISTORY
The Applicant is a citizen of Iraq. He is currently 29 years of age. He first entered Australia on 31 January 2017 as the holder of a Spouse (Provisional – subclass 309) visa granted on the basis of his marriage to an Australian citizen.
The Applicant accumulated a history of offending relatively soon after arriving in Australia. His offending will be summarised below.
His visa history may be stated thus:
·on 24 August 2017, the Applicant was granted a Bridging (Class WC) visa while his application for a Protection (Class XA) visa was being determined. The Protection visa was not granted;
·on 20 October 2017, the Applicant’s Bridging (Class WC) was cancelled by a delegate of the Minister pursuant to s 116 of the Act as a result of him being arrested and charged with criminal offences on 30 May 2017;
·on 17 April 2018, the Applicant lodged a further application for a Protection (Class XA) visa. That application was refused by a different delegate of the Minister. That refusal decision was subsequently affirmed on review by the Migration and Review Division (“MRD”) of this Tribunal;
·on 11 December 2018, the Applicant lodged an application for judicial review of the MRD decision in the Federal Circuit Court of Australia. That application for judicial review remains pending.
The present application comes before the Tribunal thus:
·on 17 April 2018, the Applicant applied for the visa together with his abovementioned application for a Protection (Class XA) visa;
·the Applicant received respective Notices of Intention to Consider Refusal in relation to the visa on 21 June 2018 and 18 July 2018;
·the Applicant responded to each of these notices on 3 July 2018 (for the former) and 14 August 2018 (for the latter). These responses encompassed a duly completed personal circumstances form, certain submissions, statutory declarations, letters of support and photographic images;
·on 3 December 2018, the Minister’s delegate exercised the discretion under s 501(1) of the Act to refuse to grant the Visa. He was notified of this refusal on 4 December 2018;
·on 13 December 2018, the Applicant applied to this Tribunal for review of that visa refusal decision.
ISSUES
The decision to refuse the Applicant’s visa was made on the ground that the Minister’s delegate was not satisfied that the Applicant passed the character test, having specific reference to subsection 501(6) of the Act. After taking into account the relevant considerations, the Minister’s delegate decided to exercise the discretion in s 501(1) of the Act to refuse to grant the Applicant’s visa.
The issues for this Tribunal to consider are essentially the same, being:
(a)whether the Applicant passes the character test as defined in s 501(6) of the Act; and
(b)if he does not pass the character test, whether the discretion in s 501(1) of the Act should be exercised to refuse to grant the Applicant the visa.
ISSUE 1: THE CHARACTER TEST
The first issue I must consider is whether, objectively speaking, the Applicant passes or fails the character test as defined in s 501(6) of the Act.
My recollection of the oral submissions on this issue at the hearing is that there was unanimity between the parties that the Applicant does not pass the character test. Those oral submissions largely square with what appears in the respective Statements of Facts, Issues and Contentions filed by the parties prior to the hearing.[1]
[1] See Exhibit 1, Applicant’s Statement of Facts, Issues and Contentions (“SFIC”) dated 12 February 2019; see also Exhibit 2, the Respondent’s SFIC dated 24 January 2019.
The character test is defined in s 501(6) of the Act. Relevantly, this section provides that a person will not pass the character test if “the person has a substantial criminal record (as defined by subsection 7 [of s 501of the Act]”.[2] For present purposes, a person has a substantial criminal record if:
“….
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or[3]
…..”
[my underlining].
[2] Migration Act 1958 (Cth), s 501(6)(a).
[3] Ibid, s 501(7).
On any practical and reasonable view, the Applicant does not pass the character test pursuant to s 501(6)(a) as defined by s 501(7)(c) of the Act as he was sentenced to a term of full-time imprisonment of 12 months for his offending.
Consequently, I am satisfied that the Applicant does not pass the character test. The Applicant cannot rely on a positive finding that he passes the character test such as to prevent exercise of the discretion in s 501(1) of the Act to refuse to grant him the visa he seeks.
Summary of criminal offending
The Applicant has a history of offending in Australia. His offending was initially the subject of sentencing by the Fairfield Local Court on 3 October 2017. The Applicant then appealed the sentence imposed by that Court to the Parramatta District Court which dealt with the appeal on 24 October 2017. His sentencing and appeal outcomes can be summarised as follows:
Fairfield Local Court - 3 October 2017:
(i)convicted of assault occasioning actual bodily harm (in a domestic violence context). Sentenced to a term of imprisonment of 12 months commencing on 13 September 2017 and concluding on 12 September 2018. A non-parole period (with conditions) was fixed at nine months;
(ii)convicted of common assault (in a domestic violence context). Sentenced to a term of imprisonment of 12 months commencing on 13 September 2017 and concluding on 12 September 2018. A non-parole period (with conditions) was fixed at nine months;
(iii)convicted of stalk/intimidate intend fear physical etc harm (in a domestic context). Sentenced to a term of imprisonment of 12 months commencing on 13 September 2017 and concluding on 12 September 2018. A non-parole period (with conditions) was fixed at nine months.
Parramatta District Court – 24 October 2017:
(i)the Applicant appealed the severity of each of the three abovementioned sentences. The outcome on appeal was as follows:
· appeal against conviction for assault occasioning actual bodily harm (in a domestic violence context): order varied such that the head custodial term of imprisonment remained unchanged at 12 months commencing on 13 September 2017 and concluding on 12 September 2018. The originally sentenced non-parole period (with conditions) of nine months was reduced to eight months commencing 13 September 2017 and concluding on 12 May 2018;
· appeal against conviction for common assault (in a domestic violence context): order varied such that the head custodial term of imprisonment remained unchanged at 12 months commencing on 13 September 2017 and concluding on 12 September 2018. The originally sentenced non-parole period (with conditions) of nine months was reduced to eight months commencing 13 September 2017 and concluding on 12 May 2018;
· appeal against conviction for stalk/intimidate intend fear physical etc harm (in a domestic context): order varied such that the head custodial term of imprisonment remained unchanged at 12 months commencing on 13 September 2017 and concluding on 12 September 2018. The originally sentenced non-parole period (with conditions) of nine months was reduced to eight months commencing 13 September 2017 and concluding on 12 May 2018;
(ii)in net terms, the Applicant’s outcome on appeal was that the head custodial term of 12 months for each of the three convictions (to be served concurrently) remained unchanged but that the originally sentenced nine month non-parole period (for each of the three convictions) was reduced from nine months to eight months.
At the hearing, the parties’ representatives said that they had discussed the circumstances of the incident that occurred on 30 May 2017 giving rise to the Applicant being charged and convicted with the three abovementioned offences. Both representatives said that there is no dispute between the parties as to the nature and circumstances of the Applicant’s conduct on 30 May 2017 as it is described in a certain “Facts Sheet” prepared by New South Wales Police contemporaneous with the incident.[4] The circumstances of the incident can be summarized as follows:
[4] Exhibit 4, Redacted Tender Bundle, New South Wales Police Facts Sheet, TB1, pages 7 – 11.
·on 30 May 2017, the Applicant threatened to kill both his wife and their six month old daughter;
·he grabbed her and stated that if the Police were coming, he would kill her;
·he further stated that he did not care about the Police and that the last time they had been called to a domestic incident between him and his wife, they apparently did nothing;
·the Applicant commenced hitting his wife over the back, neck and head with a coat hanger;
·he grabbed her by her hair and then bit her on the back and right arm a number of times before throwing her to the ground;
·their six month old daughter was disturbed by the incident and commenced crying. In response, the Applicant walked into the daughter’s room and after stating that she was his daughter and that he could do anything he wanted to her, he then threatened to kill her as well;
·the Applicant’s wife picked up their crying six month old daughter in order to quieten and comfort her at which time the Applicant snatched the child from his wife’s hands and then proceeded to slap his child on her head and then threw the child to the floor;
·there was a 14 year old child in the house at the time of this incident. That child is the Applicant’s 14 year old step-daughter. The step-daughter contacted the Police and requested urgent assistance;
·the Applicant obtained a knife and used it to threaten his wife;
·the Police duly arrived and upon them announcing their presence, the Applicant’s wife ran out through the front door clutching their six month old daughter;
·the Applicant was restrained, handcuffed, cautioned and then placed under arrest by the attendant police officers;
·the Police then called for an ambulance to attend and assess the state of health of their six month old daughter who had vomited a number of times after having been thrown to the floor by the Applicant;
·Police observed that the Applicant’s wife had clear bite marks and redness on her arm and back and that she had additional redness from wounds inflicted by the Applicant striking her with a coat hanger. She was also observed to have a number of marks and scratches covering her back, neck and arms.
ISSUE 2: DISCRETION TO REFUSE VISA
In circumstances where a visa applicant does not pass the character test, the determinative issue then becomes whether the decision maker should exercise the discretion in s 501(1) of the Act to refuse the Visa. I think the discretion should be exercised. My reasons follow.
The Legislative Framework
In considering whether to exercise the discretion in s 501(1) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with Direction No. 65 (“the Direction”). The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
… a decision maker must take into account the considerations in Part A or Part B where relevant in order to determine whether a non-citizen will forfeit the privilege of being granted or of continuing to hold a visa.[5]
[5] Direction No. 65, paragraph 7(1)(a).
The Direction requires that any exercise of the discretion in s 501 is to be informed by the Principles in paragraph 6.3. Briefly stated, they are summarised as follows:
(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;
(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 should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4) In some circumstances, the criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any future risk of similar conduct in the future is unacceptable;
(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;
(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 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 for minor children and other immediate family members in Australia are considerations for determining whether to exercise the discretion.
Paragraph 8(1) of the Direction provides that a decision-maker must take into account the Primary and Other Considerations relevant to the individual case.
The considerations relevant to refusing a non-citizen’s visa application appear in Part B of the Direction. Paragraph 11 of the Direction stipulates the three Primary Considerations that the Tribunal must take into account:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia; and
c) Expectations of the Australian community.
The Other Considerations which must be taken into account for visa refusal matters are provided in a non-exhaustive list in paragraph 12 of the Direction. These Other Considerations are:
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims; and
(d)Impact on Australian business interests.
Primary Consideration A: Protection of the Australian Community from Criminal or Other Serious Conduct
The Tribunal must have regard to the protection of the Australian community from criminal activity or other serious conduct. Paragraph 11.1 of the Direction further provides that decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The evidence of the Applicant – in chief and under cross-examination
The evidence in chief of the Applicant involved his representative taking him through various documents and asking him to confirm or otherwise comment on the content of those documents. First, he was taken to his personal circumstances form filed in response to the Notice he received from the Respondent regarding the Respondent’s intention to consider visa refusal pursuant to s 501(1) of the Act.[6] The Applicant confirmed the content of the material appearing in the totality of this form comprising 23 pages as true and correct.
[6] Exhibit 5, Section 501 G Documents, G9, pages 41 – 63.
Second, the Applicant was referred to a copy of his Iraqi passport, a copy of which (a portion thereof, at least) appears in the material.[7] He confirmed that this document comprised a true and correct copy of a portion of his Iraqi passport.
[7] Ibid, G9, page 64.
Third, the Respondent was taken to the report of the psychologist, Mr Patrick Sheehan, prepared and obtained for use at the time of the Applicant’s sentencing by the Fairfield Local Court on 3 October 2017. Mr Sheehan’s report is dated 19 September 2017.[8] The Applicant was asked to confirm the history that he provided to Mr Sheehan and which Mr Sheehan duly captured and wrote about in his report. The components of Mr Sheehan’s report which were confirmed as true and correct by the Applicant included details about his life in Iraq, his move to Jordan in 2013 and his move to Australia in February 2017 under a spousal visa. He further confirmed as true and correct what he told Mr Sheehan about his developmental education and vocational history. The Applicant confirmed as true and correct the things he told Mr Sheehan about his social and intimate relationships including the historical and current state of the relationship between him and his wife who, of course, was one of the two victims (along with their six month old daughter) of the Applicant’s domestic violence offending.
[8] Ibid, G10, pages 65 – 74.
I did not allow the Applicant to give evidence about the clinical observations and findings of Mr Sheehan because such evidence should rightly be provided by Mr Sheehan himself.
Fourth, the Applicant was taken to a bundle of mobile telephone records. Those records seem to relate to a single mobile telephone number and are configured in three basic columns: (1) the time an incoming call is received or an outgoing call is made; (2) whether a call is an incoming call or an outgoing call; (3) the duration of the call and (4) on a relatively small number of these mobile telephone records, the date on which a call or calls was made. The Applicant was initially not clear about whom the subject mobile telephone number belonged to. He eventually said that he thought it was his wife’s number. My understanding of the purpose behind seeking to have the Applicant confirm these records as true and correct was to try and demonstrate to the Tribunal that while he has been in immigration detention, there has been quite frequent telephone contact between the Applicant and his wife.
The difficulty with that contention is that these mobile telephone records say nothing of the sort. They are merely a record of when an incoming call is made or an outgoing call is received together with the duration of each of those calls. They do not demonstrate that the given telephone number was used to make contact with the telephone number at the other end of the call at which, presumably, the Applicant was located. As I sought to demonstrate to the Applicant’s representative, perhaps the only way to demonstrate that these calls did in fact involve the Applicant is to obtain a copy of the Applicant’s mobile telephone records and to, as it were, superimpose one set of telephone records over the other. Be that as it may, the Applicant proceeded to “identify” these calls[9] – both incoming and outgoing – as being either exclusively or predominantly – between him and his wife while he has been in immigration detention. His further evidence was that such liberal telephone contact was not available to him while he was in criminal custody.
[9] Ibid, G18, pages 106 – 126.
Fifth, the Applicant was taken to a random sample of photographic images contained in the material and asked to identify the people in those photographs.[10] Although it was not made clear either during or as a result of the Applicant’s evidence nor in any submissions, I presume the purpose of the Applicant being taken to these images and being asked to identify individuals within them was to establish (1) the currency of his relationship between his wife and their six month old daughter; (2) the relationship between the Applicant (as a step-father) and the wife’s three children from a prior relationship and (3) that the Applicant has a social circle of friends in Australia and that he does mix with members of his wife’s extended family in this country. I am not quite certain where that evidence took the Applicant’s prospects in this application but I nevertheless had little or no reason to doubt it. I temper these remarks with comments I will make later in these Reasons about the apparent currency of the relationship between the Applicant and his wife.
[10] Ibid, G18, pages 127 – 237; in particular, the Applicant was taken to the photographic images appearing at pages 127, 143, 145, 151 and 152.
The Applicant was cross-examined by the Respondent’s representative. He was initially taken to the abovementioned report of Mr Sheehan and, in particular, to the notation made by Mr Sheehan to this effect:
“….. He denied any history of physical aggression between he and his partner. They were separated for over two months after the current offence, but reconciled and have returned to married life, living in the same home.”[11]
[11] Ibid, G10, page 69.
The Applicant was asked to confirm the accuracy of Mr Sheehan’s recorded denial of any history of aggression between the Applicant and his wife. The Applicant did so. He was then taken to a part of his abovementioned personal circumstances form where, in response to the question “What do you think is the likelihood that you may re-offend now? Please give reasons for your answer.”, the Applicant responded with:
“There is absolutely no chance whatsoever of myself re-offending. I have never offended in any country prior to this and it is not in my nature to offend.” [12]
[My underlining]
[12] Ibid, G9, page 56.
The Applicant confirmed and endorsed the correctness of this particular response and added that although he and his wife had arguments, none of those arguments, according to him, had resulted in any violence. It was put to him that, when he told Mr Sheehan that there had not been “…. any history of physical aggression between he and his partner”, he was, in fact, lying. The Applicant denied that he lied or otherwise misled Mr Sheehan.
Similarly, it was put to the Applicant that when he wrote in his personal circumstances form that he had “… never offended in any country prior to this [ie the incident on 30 May 2017 resulting in his sentencing on 3 October 2017] and it is not in my nature to offend”, that he was, in reality, not telling the truth. In response, the Applicant flatly denied that he was not telling the truth.
Two further propositions were put to the Applicant. First, that he had in fact previously hit his wife, that is, prior to the incident on 30 May 2017. He responded with “I don’t remember if I hit her previously”. Second, it was put to the Applicant that he had hit his wife three days after he arrived in Australia in February 2017. He responded with “No, it’s not true.”
The Applicant agreed that at the time of the incident giving rise to his sentencing (ie 30 May 2017), a provisional apprehended violence order had been issued and remained current against him. He was taken to that specific “provisional order – apprehended domestic violence” that was issued consequent upon a domestic incident that occurred between himself and his wife on 3 February 2017. He responded with “When we arrived here, we had a fight, police intervened, then we re-united”.
He was then taken to the specific circumstances of that incident on 3 February 2017. The “Grounds of Application” reveal the following about the incident:
“The Defendant in this matter is [the Applicant]. The Defendant is an Iraqi immigrant who arrived in Australia on Wednesday, 1st February 2017. The Defendant arrived from Jordan.
The PINOP[13] in this matter is [the Applicant’s wife] who has lived in Australia since 2004.
[13] Person In Need of Protection.
The PINOP and the Defendant have been married for about 18 months and have known each other for about 3 years. The PINOP and the Defendant have a 2 month old daughter. The PINOP resides with the daughter at [redacted] Fairfield West. The Defendant has only moved in with the PINOP as he has just arrived from overseas. There is no reported history of domestic violence and no current enforceable apprehended violence orders in place.
At about 9.30am, Friday 3rd February 2017, the Defendant and PINOP were in the guest room of the house eating breakfast. The PINOP and the Defendant have gotten into an argument as the PINOP believed the Defendant had been cheating on her with another woman in Jordan. This has caused the Defendant to become frustrated and the argument became more heated.
As the argument intensified, the Defendant has shoved a bottle of milk off one of the tables. The bottle of milk has made contact with the PINOP and has spilled on to her. This has resulted in the PINOP punching the Defendant. The Defendant has then used both of his hands to push the PINOP against her chest.
The argument has then continued into the lounge room. At this point, the PINOP was on the couch and the Defendant attempted multiple times to approach the PINOP. However, she made it clear that she did not want him near her. As the Defendant tried to approach the PINOP, the PINOP has used her legs to try and push him away. The Defendant has then used a closed right fist and struck the knee of the PINOP. The PINOP has continued to try and kick away the Defendant. The Defendant has then grabbed the PINOP with both hands around the neck to hold her down. This has made it difficult for the PINOP to breathe. The Defendant has then struck the PINOP multiple times across her face with an open palm. The Defendant has also tried to keep the PINOP quiet by covering her mouth with one of his hands and pressing down.
As a result of this, the PINOP has used her hands to try and push the Defendant off her and this has resulted in scratch marks across the Defendant’s arms and chest. After a short struggle, the PINOP has then gone to her bedroom where she heard their young daughter crying. The PINOP has picked her daughter out of the cot.
While the PINOP was holding her daughter, the Defendant has come up behind the PINOP and started hitting her with an open palm across the back of the neck. At this point an anonymous bystander who could hear screaming from inside the house has contacted Police.
About 10.30am, Police arrived and located the PINOP and the Defendant inside the house. Police observed the PINOP to be crying and shaking. She also had red marks around her neck and some minor scratches on her upper left arm. The Defendant walked out of the bedroom holding their daughter. Police observed scratches on the Defendant’s body and arms.
Police had a short conversation with the PINOP where she disclosed the above details. Police placed the Defendant under arrest and conveyed him back to Fairfield Police Station. A short time later, an official interpreter arrived. Using the interpreter, the Defendant was introduced to the custody manager and read his rights ….
The Defendant participated in an electronically recorded interview. During the interview, the Defendant made admissions to punching the PINOP in the left leg. The Defendant also made admissions to pushing the PINOP. When questioned in relation to grabbing the PINOP around the neck, the Defendant stated that he had put his hands on her neck to try and control her and also placed his hand firmly on top of her mouth to keep her quiet.
The Defendant also admitted to slapping the PINOP multiple times, however, he said that this was a regular occurrence between the two of them and he further stated that he believed his touches were light. Police however noted that the Defendant is much larger and stronger than the PINOP and it appeared that it would not take much force from the Defendant to hurt the PINOP.”[14]
[My underlining].
[14] Exhibit 4, Redacted Tender Bundle, TB2, pages 26 – 27.
The Applicant’s responses to the inevitable questions arising from the above factual circumstances both lacked credibility and were otherwise intended to ameliorate or minimize the administration of physical force by him against his wife. For example, the notation that he used both of his hands to push his wife against her chest was explained by “I just pushed her away from me”. He agreed that he did grab his wife with both hands around her neck to hold her down. He also agreed that he struck her multiple times across her face with an open palm. Rather pathetically, he ventured that his covering of her mouth with one of his hands while pressing down was not intended to cause her any physical difficulty with breathing but that it was intended to prevent her making any sound and that he put his hands on her “very lightly”.
He also ventured to suggest that the entire argumentative (and eventually violent) episode arose from “swear words” that she used towards him. He was consequently asked why he took it upon himself to administer such extreme levels of force on his wife if all she had done was to swear at him. His response was both tepid and unconvincing. He said that she was apparently swearing about his recently deceased father and he became angry because his father was very dear to him. He also said: “She swore about my parents and hitting women [for that sort of conduct] is normal”. Although he expressed some level of remorse for this and the later episode in May 2017, he apparently “… didn’t know it was wrong” in this country to administer such force towards women in a domestic context. He added that he was consequently “…surprised that the Police came …” in response to the incident.
The remainder of his evidence was very unconvincing and at times, frustrating. In response to the notation in the abovementioned quoted facts about the incident on 3 February 2017 where his wife went to pick up their daughter who was crying in her cot as a result of the commotion, he struck her (while she was actually holding the baby) with an open palm across the back of her neck. In response he ventured to suggest that “I didn’t hit her this way … I just slapped her face”. The Applicant tried to condition his responses to these questions by saying that “I can’t recall the whole detail because I have lost my memory since jail and detention”.
The Applicant eventually agreed that he did make the admissions referred to in the above quoted factual summary but added that the whole thing was “… only a small argument” and that any physical force he used against her involved only “light touches” from him. He also sought to challenge the reference in the factual summary that referred to red marks around his wife’s neck and some minor scratches on his upper left arm by asking his cross-examiner whether he had any photographs of these physical injuries to support the words appearing in the factual summary. He concluded his response to the words in the factual summary relating to the physical injuries with “it’s exaggerated”.
The Applicant similarly refused to accept that his conduct created alarm for their then two month old baby and, most probably, the step-children as well who would have, more than likely, been disturbed by the commotion. In response to the words in the factual summary referring to him walking out of the bedroom holding their daughter, the Applicant said “I took the baby from her hands [ie the wife] and I gave her [the baby] her bottle.”
The Applicant eventually agreed that the provisional order made on 17 February 2017 at the Fairfield Local Court was, in turn, made a “Final Order – Apprehended Domestic Violence Order” on 22 August 2017, with an operative period of two years from that date until 21 August 2019.
The Applicant was then referred to a certain pre-sentencing report dated 29 September 2017 prepared by Mr Kurt Issenmann, Community Corrections Officer. He was specifically referred to the following portion of Mr Issenmann’s report:
“Factors relating to offending
Violence
[The Applicant] disclosed that there have been previous incidents of violence within his relationship which was unreported to the authorities. Whilst the offender denied ongoing violence, he conceded that the relationship with his wife was untenable, and he reported that his wife was currently seeking an annulment of that marriage. It is noted that attempts to contact the offender’s wife met with a negative result.”[15]
[15] Ibid, pages 12 – 13.
The Applicant’s responses to Mr Issenmann’s above-quoted observations, to my mind, carry little or no evidentiary weight. The Applicant said that he probably was not clear about what Mr Issenmann was asking him due to, apparently, an absence of an Arabic interpreter. The Applicant said “I can’t recall that I said to Mr Issenmann that ‘there have been previous incidents of violence’…”. He added “We have had arguments but there has not been any violence.” He denied ever telling Mr Issenmann that the marriage was untenable and that his wife was seeking an annulment of the marriage. He sought to support this denial by saying that his wife accompanied him to a shopping centre where Mr Issenmann’s office was situated for the Applicant’s meeting with Mr Issenmann and that this was indicative of her not wanting to annul any marriage.
The Applicant denied any instability in the marriage as noted by Mr Issenmann in an earlier part of his report. He suggested that “We have not been separated, we have only been separated because of the AVO, it’s the government that separated us”. While this evidence has little or no credibility, it’s more astonishing aspect is, to my mind, the inherent lack of insight of this Applicant into his violent and dangerous behaviour that has given rise to the trouble he now finds himself in. It is also astonishing for him to suggest that the main causative agent behind any marital separation between him and his wife is the apprehended violence order that was made consequent upon his conduct, rather than his own conduct that preceded the making of any order.
The Applicant was then taken to the transcript of the sentencing hearing at the Fairfield Local Court on 3 October 2017. In particular, he was taken to this passage of the transcript:
“Her Honour: Is the gentleman’s wife in Court?
Her Honour: Is it correct that they have reconciled? Is that correct? Are they still living together?
Tashman: She is just there. Yes.
Complainant: [the wife] No. I am not living with him. I am already am now divorced with him [sic]. Start my special lawyers, [sic] that would already cancel him the visa. I am just to sorry say I forgive him for what he do for me and my daughter. Because, I already had cancelled the visa for him. He is not for visa here. That is it.
Her Honour: All right. So, you are not living together any more, but you have forgiven him for the conduct?
Complainant: No, I am start my special lawyer, that divorce him with the Government.”[16]
[My underlining].
[16] Exhibit 5, Section 501, G Documents, G8, page 3, lines 4 – 21.
Having regard to the above portion of the transcript, it is not, to my mind, too great a leap of faith to find that there are two predominant themes to what the Applicant’s wife told, or, more correctly, intended to tell the Fairfield Local Court on 3 October 2017. The first is that her relationship with the Applicant is at an end. Words such as “No. I am already …. now divorced …” cannot be read any other way. Second, she no longer wants to act as his sponsor of any visa that may allow him to remain in this country, remembering, of course, that he arrived here pursuant to a visa granted to him on the basis of his marriage to his wife, then an Australian citizen. Her words: “Start my special lawyers, already cancel him the visa” and “… I already had cancelled the visa for him. He is not for any visa here. That is it.”, similarly, cannot be read any other way.
In cross-examination, the Applicant said that “I do not recall my wife saying this”. He similarly denied any period of separation between him and his wife after the incident on 30 May 2017 for which he was sentenced in the Fairfield Local Court on 3 October 2017. Viewed in the context of surrounding evidence, this evidence from the Applicant goes nowhere.
Given the Applicant’s repeated denials of any periods of separation, he was again taken to the report of Mr Sheehan (Psychologist) where Mr Sheehan noted “They were separated for over 2 months after the current offence …”. The Applicant was then asked that if his assertion of there being no periods of separation is correct, why then had Mr Sheehan made this notation about separation? The Applicant had nothing of any substance to say in reply to this question.
The Applicant was then referred to a portion of the delegate’s decision (dated 3 September 2018) in relation to his earlier application for a Protection visa. The delegate noted the following under the heading “Additional background information before the Department”:
“ - He arrived in Australia on 30 January 2017
- Three days after his arrival in Australia he was charged with domestic violence offences and Apprehended Violence Orders were granted to protect his wife and baby daughter (expiry date 21 August 2019)
- He was granted bail but in May 2017 he breached his bail conditions and was subsequently charged with assault occasioning bodily harm upon his wife and baby, and stalk/intimidate intend fear physical harm (domestic violent)
- On 3 May 2017 he was arrested and remanded in custody
- In October 2017 he was convicted in relation to the assault and domestic violence charges
- On appeal the 9 month non-parole period of the 12 month sentence was reduced by 1 month to 12 months with 8 months non-parole
- He was imprisoned from May 2017 until May 2018 when he was transferred to Villawood Immigration Detention Centre where he remains
- His wife withdrew sponsorship of their partner visa in July 2017."[17]
[My underlining]
[17] Exhibit 4: Redacted Tender Bundle, TB5, page 57.
The above passage from the delegate’s decision was carefully translated for the Applicant during the hearing. There can be no question he did not understand it. Accordingly, he accepted the correctness and accuracy of the above passage from the delegate’s decision. The question was put to him that if he and his wife were still in a relationship in mid-2017, why then would she withdraw her sponsorship of their partnership visa at that time? He had no substantive response to that question.
The Applicant was then referred to his “offender details” as recorded by the New South Wales Department of Corrective Services. He agreed that the “movement details” component of these records disclosed that he was (1) initially admitted to prison on 31 May 2017; (2) remained in custody until 20 June 2017 on which date he was granted bail and (3) that he was returned to prison on 3 October 2017 consequent upon his sentencing at the Fairfield Local Court on that day.
The Applicant agreed that the only time he has been out of either criminal custody or immigration detention has been for a period of about eight months running from 3 February 2017 until 31 May 2017 (when he initially went into custody for his domestic violence offending on 30 May 2017) and then from 20 June 2017 until 3 October 2017 (while he was on bail awaiting sentencing for his offending on 30 May 2017).
The Applicant was then referred to the ‘personal circumstances form’[18] submitted to the Respondent’s Department prior to the delegate’s decision under review. In this document, the Applicant says that he worked as a ‘volunteer hairdresser’ in Australia during the period February 2017 until May 2017. The Applicant confirmed he understood that ‘voluntary’ means that a person does something for free and does not seek payment for it. He sought to explain this work by saying: ‘I’m learning from my friend how to style hair. I was helping my friend and helping people.’
[18] Exhibit 5, Section 501 G Documents, G9, pages 41-63.
The Respondent’s representative was not satisfied with this answer. He challenged the Applicant about whether it is believable for him to maintain that he spent something like three or four months performing unpaid voluntary work when he was the person primarily responsible for supporting a family of six comprising his wife, a biological child with that wife and three step-children. The Applicant responded with: ‘It is not paid work. Whatever money I do get for this work is a gift, it’s a tip, so I have some money for things like cigarettes or transportation.’
As noted by the Respondent’s representative, even if that were true, the question remained: if not the Applicant because he was apparently doing unpaid voluntary work, who then was financially supporting his family? The Applicant’s response was less than convincing: ‘It was a beginning step; I was thinking of a future project to open a hairdressing business.’ In response to the question about how the family was financially supported, the Applicant said: ‘My wife took a loan; we bought a home; she was also on Centrelink.’
The Applicant was then taken to Mr Sheehan’s report where he noted that:
‘[The Applicant] has worked as a hairdresser for the past eight years, working in Iraq, Jordan and now in Sydney. He currently works at a salon in Campsie between six to seven days per week. He aspires in the future to operate his own business and to seek an apprenticeship as an auto-mechanic.’[19]
[My underlining]
[19] Ibid, G10, page 68.
The Applicant had no convincing response to the suggestion that working at a salon for six to seven days a week is a lot of work time as a volunteer. He was specifically asked whether he told Mr Sheehan that his work at the salon was in fact a voluntary position. The Applicant responded with: ‘I can’t recall’. He was also asked to explain how Mr Sheehan could make an observation that he had ‘a strong work ethic’[20] in circumstances where, on the Applicant’s evidence, he was performing six to seven days of work per week as a volunteer.
[20] Ibid, G10, page 73.
The Applicant was then taken to the ‘Facts Sheet’ prepared by the NSW Police in relation to the incident that occurred on 30 May 2017. In that ‘Facts Sheet’, the NSW Police note that ‘[t]he accused is currently employed and residing within Australia on a spousal visa.’ He was again asked whether his work as a hairdresser was not done as a volunteer but in fact as paid employment. The Applicant repeated his previous answer to the effect that any money he may have received from the work he was doing six to seven days a week for three to four months was in the form of ‘just gifts’ and that, from time to time, he ‘received tips’.
It should also be noted that the Applicant entered Australia on 31 January 2017 as the holder of a Spouse (provisional – subclass 309) visa that was granted to him on the basis of his marriage to an Australian citizen. This visa prohibits the holder from engaging in remunerative employment in Australia for a certain period of time. Accordingly, the Applicant was asked in cross-examination about whether or not the visa on which he entered the country allowed him to work. He responded with: ‘I have no idea.’ There is a clear and obvious inference to be drawn from the nature of the responses provided by the Applicant to questions about his employment in this country as a ‘volunteer’ hairdresser during the period February-May 2017.
The Applicant was then taken to his wife’s statutory declaration made on 28 June 2018.[21] The Applicant agreed that he was aware of this statutory declaration but added ‘I can’t read English so I don’t know what’s in it.’ He was specifically asked whether he had spoken with his wife about the content of the statutory declaration because it contained certain statements that were seemingly at odds with what she told the sentencing magistrate at the Fairfield Local Court eight months earlier in October 2017.
[21] Ibid, G12, page 87.
In her abovementioned statutory declaration made on 28 June 2018, the Applicant’s wife said these things:
‘6. I did not take the threats or actions by my husband as serious, it was the stress, heat of the moment and my cloudy judgement [sic] that made me report the incident. I blame myself for what has happened as I did not try to resolve our problem calmly and infact [sic] added fuel to the fire.
7. … It was my unfortunate reporting of the incident that has caused his name to be tainted.
8. This incident and my reporting of it has made my life more difficult than [sic] it would have been had I not reported it and kept calm.
9. I truly regret my actions and wish for this to have never happened.’[22]
[22] Ibid.
When these comments in the Applicant’s wife’s statutory declaration was put to the Applicant, he said that he agreed with them. He said that his wife had made a mistake by reporting the incident and that she regrets doing that. He added ‘she is not completely wrong because I didn’t know the laws. I’ve learnt my lesson and I understand that any future incidents between us should be resolved calmly. If I knew the law [at the time of the incident on 30 May 2017] I would have not caused any difficulties.’ The Respondent’s representative suggested to the Applicant that regardless of the response he had just provided, he must surely have known that what he did during the subject incident mean that he surely knew that he was physically harming his wife. The Applicant responded with ‘yes and I regret it.’
The Applicant’s cross-examination concluded with a further question about the abovementioned ‘personal circumstances form.’ Given the Applicant’s own evidence about the incapacity to read or write English, it was suggested to him that someone more fluent in English must have surely assisted him to complete that form. The Applicant’s response was both peculiar and inconsistent. He initially said that he engaged someone to help him to complete the form and that ‘I spoke to them in Arabic and they wrote it down and that’s how the form was filled in.’ He was then asked who ‘they’ actually were and he responded with the name ‘George.’ The Applicant further said that ‘George’ was outside the hearing room but that he could not really recall whether the correct name of that person was ‘George’.
When pressed to explain the discrepancy between his purported recollection of ‘George’ and the name appearing next to the notation on the first page of the form ‘Please state the name of any other person who has filled in this form for you or helped you to complete it’. The name appearing on the form is ‘Baker Al Musawi’. The Applicant appeared vague and confused when the inconsistency was raised and eventually conceded that it may well have been Mr Al Musawi who helped him to complete this form.
(a) The Nature and Seriousness of the Applicant’s Conduct to Date
Paragraph 11.1.1(1) of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct, which relevantly (for present purposes) includes the following:
(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) …
(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) …
Sub-paragraph (a) of paragraph 11.1.1(1) of the Direction renders crimes of violence as crimes that are viewed ‘seriously.’ It is, in my view, beyond argument, that the circumstances of the Applicant’s conduct both in February and May 2017 does constitute violent conduct and as such, the specific offences committed on 30 May 2017 can only be viewed in a serious light. The Applicant’s administration of force on his wife in both of these episodes constitutes frankly, appalling domestic violence. It is inexcusable and not capable of acceptable explanation.
Mr Sheehan has suggested that the Applicant’s violent conduct towards his wife is somehow attributable to his cultural past and other more immediate factors giving rise to stress in the relationship. Mr Sheehan has suggested that the Applicant’s ‘…adjustment will require ongoing attention as he works towards establishing a wider social network of people who can offer emotional support and a sense of connection.’[23] Further, the Applicant ‘…described problems in transition to his new life circumstances during 2017.’[24] Further again, that the Applicant’s ‘…offending behaviour in this instance would seem embedded in a number of situational factors pertaining to various stressors.’[25]
[23] Ibid, G10, page 69.
[24] Ibid, G10, page 70.
[25] Ibid, G10, page 73.
I reject any suggestion made by either a lay or expert witness seeking to justify the Applicant’s appalling, violent, and potentially catastrophic behaviour on the basis that these types of incidents are some type of exercise in helping the Applicant to ‘culturally catch up’ with the expected norms and patterns of behaviour towards women in a domestic context in this country. If the price to be paid for the Applicant to achieve cultural parity with what is expected of him in this country involves potential catastrophic harm to his wife and/or infant child and/or young step-children, then that is a price that this Tribunal will not endorse or otherwise authorise to be paid.
The bottom line is this: regardless of any asserted cultural differences, or any lack of understanding of Australian laws and regulations governing one’s conduct towards a spouse in a domestic setting, the Applicant must surely have known that his conduct in February and May 2017 placed both his wife and the child or children in a position of danger. For this reason, I conclude that this sub-paragraph (a) of paragraph 11.1.1(1) of the Direction strongly militates in favour of a finding that his offending must be viewed very seriously.
Sub-paragraph (b) of 11.1.1 of the Direction directs a decision maker to the principle that crimes committed against vulnerable members of the community, such as minors, are serious. There can be no question that the Applicant’s appalling conduct in both February and May 2017 drew infant children into its orbit, both directly and indirectly. There is no requirement to repeat the graphic details of the directly physical way in which he dealt with his infant daughter in February and May 2017, nor is there a need to repeat his puerile evidence about his conduct towards that child.
There can be little or no doubt that he indirectly caused emotional harm and distress to his three step-children who are older in age than his biological child. Such emotional distress will inevitably have resulted from those step-children feeling anxiety and apprehension about each episode of commotion that spawned the incidents in February and May 2017. It is reasonable to accept that those step-children would have experienced both alarm and relief when police were called to intervene and to calm the Applicant during each episode.
I am of the view that this sub-paragraph (b) of 11.1.1(1) of the Direction renders the Applicant’s conduct towards (in particular) his infant biological child as very serious. I augment this finding with my comments that, without question, the infant step-children must have likewise been affected by both episodes of the Applicant’s conduct in February and May 2017.
With specific reference to sub-paragraph (d) of paragraph 11.1.1(1) of the Direction, I note (and find) that the Applicant has not passed a subjective limb of the character test and is not of good character pursuant to s 501(6)(c) of the Act. Accordingly, I find that this factor (d) militates in favour of a finding that the Applicant’s offending can be readily categorised as, at the very least, ‘serious’, but more likely as ‘very serious’.
Sub-paragraph (e) of paragraph 11.1.1(1) of the Direction directs a decision maker to look at the sentence imposed by the courts for a given crime or crimes in order to assess the seriousness of the relevant conduct. As observed by Senior Member Poljak of this Tribunal,
“The seriousness of the applicant’s conduct is reinforced by the sentences imposed on him…Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved.”[26]
[26] PNLB and Minister for Immigration and Border Protection [2018] AATA 162, paragraph [22].
The notable feature of the Applicant’s offending in Australia from a sentencing perspective is the imposition of a significant custodial term from a very early stage in his offending history. All too often in matters such as this, one can detect an Applicant’s propensity towards, for example, the resolution of disputes or disagreements in a domestic context through harsh words, bullying behaviour or mild physical actions that we colloquially call ‘push and shove’.
The notable feature of this Applicant’s offending is that he received the relative ‘benefit’ of a non-custodial reprimand and sanction for his conduct in February 2017 by the making of an apprehended violence order. One would have thought this would have been sufficient to dissuade the Applicant from any repeated episodes of domestically violent conduct. As is now known, the Applicant not only repeated his conduct in May 2017, but escalated its level of severity. This was not lost on the sentencing magistrate at the Fairfield Local Court in October 2017 who sentenced the Applicant to a not insignificant custodial term for his offending in May 2017.
Thus, within less than a year in this country and upon his first appearance before lawful authority, the seriousness of the Applicant’s conduct has been such as to attract a not insignificant custodial term. Thus, this sub-paragraph (e) of paragraph 11.1.1 of the Direction militates in favour of a finding that the Applicant’s conduct has been so serious such as to attract a not insignificant custodial term from the first time he was sentenced by a judicial officer.
With specific reference to sub-paragraph (f) of paragraph 11.1.1(1) of the Direction, a finding can readily be made about the relative frequency of the Applicant’s offending and whether there is any trend of increasing seriousness. Clearly, there is. He arrived in this country on 31 January 2017 and barely four days later on 3 February 2017 became involved in a domestic dispute with his wife that devolved into very serious acts of domestic violence towards her and which drew his infant biological child into its direct orbit.
Just under four months later, on 30 May 2017, the Applicant reoffended in a domestic violence context and on a significantly more serious basis. I have little or no difficulty in finding that his domestic violence offending is frequent within the terms required by this sub-paragraph (f). Similarly, I have little or no difficulty in finding that the trend of his offending during the period February-May 2017 (his only period of offending in this country) is undoubtedly one of increasing seriousness. This trend is amply demonstrated by the significantly more serious and stringent sentence imposed by the Fairfield Local Court in October 2017 for the Applicant’s offending on 30 May 2017 compared to ‘only’ the apprehended violence order made consequent upon the Applicant’s offending on 3 May 2017.
I am thus of the view that for the purposes of this sub-paragraph (f) of paragraph 11.1.1(1) of the Direction, the frequency of the Applicant’s offending and its inherent trend of increasing seriousness clearly militate in favour of a finding that the nature and seriousness of his unlawful conduct to date is of an undeniably serious nature.
Sub-paragraph (g) of paragraph 11.1.1(1) of the Direction requires a decision-maker to examine whether the cumulative effect of the Applicant’s repeated offending is such as to render it serious. I am of the view that it is. Were the only episode of offending in the Applicant’s history to comprise the single incident that occurred on 3 February 2017 with it resulting in an apprehended violence order, one could perhaps view that conduct as a singular event that befell the Applicant because, for example, he had only arrived in the country some four days prior.
But the Applicant cannot receive the benefit of such lenient thinking. He had an opportunity to take stock of his domestic situation during the period following the making of the apprehended violence order in February 2017 until the fateful offending that occurred on 30 May 2017. Obviously, the Applicant did not take advantage of that opportunity to consider his position and to moderate his conduct. The making of an apprehended violence order in February 2017 obviously had no deterrent effect upon him and how he should approach the resolution of any level of domestic disharmony. He adopted a violent resolution in 2017 and repeated that violence – but at a significantly more serious level – in May 2017.
Thus, for the purposes of sub-paragraph (g) of paragraph 11.1.1 of the Directions, the cumulative effect of the Applicant’s offending across the period February-May 2017 is such as to lead a decision maker to no conclusion other than that his offending – viewed in totality - can only be viewed as very serious.
Sub-paragraph (h) of paragraph 11.1.1(1) of the Direction looks at whether a non-citizen has provided false or misleading information to the department in the course of his/her dealings with it. I cautiously approach the application of sub-paragraph (h) to the present facts. I consider this sub-paragraph has application to this matter because of the inherently unreliable nature of the Applicant’s evidence around the apparently voluntary nature of the hairdressing work he did for six to seven days a week across an approximate four month period from February until May 2017.
I use the words ‘cautiously approach’ because, to be fair to the Applicant, I am not aware of any adverse finding made against him relating to his engaging in paid employment during this period and thus placing himself in a position of compromise with regard to the terms of visa pursuant to which he entered this country in January 2017. As against that, I can only refer to the unsatisfactory level of explanation the Applicant provided regarding this issue in cross-examination. It is also difficult to accept that (1) the Applicant supported a family of six either on no income at all or via cursory payments in the form of ‘gifts’ or ‘tips’ for his work during this period and (2) the family’s primary source of income comprised Centrelink benefits.
While there is no definitive finding of any breach of the terms of his visa, an inference can nevertheless be drawn from the unreliable nature of the Applicant’s explanations about the precise basis on which he worked as an apparently voluntary hairdresser six to seven days per week for four months. Also telling is the fact that Mr Sheehan records that the Applicant did work at this rate during this period but says nothing about the Applicant doing so on a voluntary or other unremunerated basis.
I will not find that this sub-paragraph (h) of paragraph 11.1.1(1) of the Direction strongly militates in favour of a finding that the Applicant’s less than frank explanation of his work status from February to March 2017 is indicative of the serious nature of his offending in this country. Be that as it may, I think it is reasonable to conclude that an inference can be reasonably drawn between his unreliable evidence in this regard and its obvious potential to lead to a finding of providing false or misleading information to an interested or inquiring party.
Upon application of the above relevant factors in paragraph 11.1.1(1) of the Direction to both the written and oral evidence now before me, I have little difficulty in agreeing with the Respondent’s contention[27] in finding that the nature and totality of the Applicant’s offending can only be viewed as very serious.
(b) The Risk to the Australian Community Should the Applicant Continue to Commit further Offences or Engage in Other Serious Conduct
[27] Exhibit 2, Respondent’s SFIC, page 7, paragraph [31].
Paragraph 11.1.2(1) of the Direction provides that any assessment of the risk to the Australian community were the Applicant to commit further offences or engage in other serious conduct involves a determination of whether he represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community. I must also have regard to paragraph 11.1.2(2) of the Direction, which establishes the principle that Australia has a low tolerance for any criminal or other serious conduct by visa applicants reflecting that there should be no expectation that such people should be allowed to remain in Australia.
Paragraph 11.1.2(3) of the Direction provides two of the factors the Tribunal must have regard to in determining the risk to the Australian community of the Applicant re-offending or continuing to engage in other serious conduct. Stated briefly they are:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending;
(ii) evidence of any rehabilitation achieved by the time of the decision; and
(iii) the duration of the intended stay in Australia.
The Nature of Potential Future Harm
Any assessment of risk to the Australian community should derive from a proper understanding of precisely how a given form of unlawful conduct gives rise to such risk. Here, the unlawful conduct involves violently offending in a domestic context. To my mind, such offending has more prisms of danger within it than other forms of violent offending. Violence perpetrated between one or more members of a purely criminally commercial enterprise against a member or members of a similar enterprise, heinous and dreadful though it may be, is bounded by motivations and factors generic to the two unlawful groups. It is rare for uninvolved or disinterested third parties to be adversely brought into its orbit.
The critical difference with domestic violence offending is that while the initial disagreement might be between two spouses, the immediacy of the commotion, violent conduct and emergent involvement of lawful authority to quell it, is such as to draw innocent parties – such as minor biological and step-children – directly into its orbit. In the abovementioned criminal enterprise scenario, the violence is intended, deliberate, and direct. In the domestic violence scenario, the conduct has the potential to physically and emotionally damage and scar not just a spouse on the receiving end, but to also either physically and, perhaps more commonly, psychologically impact the minds of impressionable minor children. Further, the impression taken by minor children of their violently feuding parents forever conditions their impression of their parents.
Courts and tribunals have for something approaching at least half a generation recognised both the familial and broader consequences of domestic violence. This Tribunal observed in 2017 that:
‘Domestic violence is a very serious matter. In no way can violence in a domestic situation by one partner against another be trivialised or downplayed. The implications of such violence on the children, broader family and friends of the parties involved can be serious and long lasting.’[28]
[28] Ahori and Minister for Immigration and Border Protection [2017] AATA 601, [36]
At the time of his first episode of domestic violence offending committed on 3 February 2017, the Applicant had only been in the country for something like four days. As mentioned earlier, if that was his only episode of domestic violence offending, one could appreciate it occurring as a result of a relatively recent arrival in this country not knowing how seriously our community viewed and abhorred domestic violence. He had an intervening period of four months from February until the end of May to understand that our community will not tolerate such conduct. I find it difficult to accept that the Applicant, during this intervening four month period, was not aware of constant media and other messaging about our community’s attitude towards domestic violence. It is and has been ‘front and centre’ of every government’s social policy in this country for decades. I have previously made this observation in 2016:
‘…the government also takes a very serious stance on domestic violence…They pointed to the numerous and costly measures that it is currently taking to address domestic violence in Australia. Further, in a media release issued in September 2015, Prime Minister Turnbull and a number of other government Ministers expressed the view that domestic and family violence has a devastating impact on the Australian community; that domestic, family or sexual violence is unacceptable in any circumstances, and that the issue must be elevated to our national consciousness. In find this material a persuasive statement of the government’s views on domestic violence.[29]
[29] Divane and Minister for Immigration and Border Protection [2016] AATA 721, [57]
Little can be said against the contention that offending involving domestic violence and the harm that would be caused if it were to be repeated, has the potential to be so serious that any likelihood that it may be repeated is unacceptable. For present purposes, the ‘potential’ of further such conduct by this Applicant, and its seriousness, can be gauged by the nature of his conduct in both the February and May incidents of 2017. More significantly, his potential to commit further and perhaps even more acts of domestic violence can be gleaned from the escalated level of seriousness between the February conduct and that of May 2017.
Viewed in its totality, while the Applicant purported to express remorse, I am not convinced he has understood the severity of his conduct. I am not convinced he has understood that, while he may think that what transpires between him and his wife in the closed confines of their house is a private affair between her and him (and their immediate family of children), the blunt reality in this country is that there is no such exclusion of lawful authority from such conduct in our community. In this sense, I am not sure the Applicant has understood that what he thinks is the business of just him and his wife in this domestic context is, in fact, the business of the Australian community.
I have misgivings about the findings of Mr Sheehan in his report dated 19 September 2017. For present purposes, I am prepared to accept that Mr Sheehan’s report was prepared in September 2017 for the specific purpose of the Applicant’s sentencing at the Fairfield Local Court in early October 2017. However, I am motivated to make an observation about Mr Sheehan’s comment purporting to attribute the Applicant’s conduct to some kind of cultural difficulties the Applicant may have apparently being experiencing when he arrived here. Mr Sheehan says that the Applicant’s ‘…traditional cultural attitudes about gender roles…are somewhat incompatible with the Australian community.’[30]
[30] Exhibit 5, Section 501 G Documents, G10, page 72.
As I mentioned earlier, cultural difficulties or cultural incompatibilities are no excuse or explanation for the Applicant’s appalling conduct towards his spouse in a domestic context in February and May 2017. As also mentioned earlier, while his wife and biological child and step-children reside in this country, they cannot be expected to act as training grounds for this Applicant to raise his cultural awareness or otherwise be culturally compatible with how he is expected to treat women within his own domestic circle and area of responsibility.
Were the Applicant to re-offend in a domestic context, one is left with the firm conviction that the nature of the harm to individuals or the Australian community would be very significant and potentially catastrophic.
The Likelihood of Re-offending, or Continuing to Engage in Other Serious Conduct
Apart from the report of Mr Sheehan that was actually prepared for the Applicant’s sentencing in October 2017, there is scant information and evidence before the Tribunal from any independent and authoritative source on the likelihood of this Applicant re-offending.
The primary difficulty with Mr Sheehan’s report is that it’s retrospective orientation. In other words, it looks back at the Applicant’s history – both offending and non-offending – in this country and purports to give that conduct context so that the sentencing judicial officer had some measure of explanation for the Applicant’s conduct up to that point, that is, the date of sentencing in early October 2017.
What is presently not before the Tribunal is a report that has a predictive orientation, involving the description of a likely future scenario of how the Applicant can be reasonably expected to comply with the expected behaviours of a person engaged in a domestic relationship in this country. For example, how can the Tribunal have any level of certainty that the Applicant has become truly insightful of the reality that his past conduct has fallen woefully short of what the Australian community, and the law governed by it, expects of him? Mr Sheehan’s report, because of its retrospective orientation, does not enlighten us in this regard. Of greater concern is the nature of the responses provided by the Applicant under cross-examination. While he purported to express remorse, many of his responses were either artificially deflective or reliant upon an assertion of unfamiliarity with the laws of this country.
Thus, there is quite minimal predictive expert evidence before the Tribunal from any independent and authoritative source about the likelihood of the Applicant reoffending. Similarly, it cannot be said that this Applicant has achieved any level of demonstrated rehabilitation by the time of this decision.
Further, the duration of the Applicant’s intended stay in Australia cannot be said to be short. He contends that he cannot return to Iraq, despite the rejection of his purported claims of fear of persecution were he to be returned there. Thus, were the Applicant to be granted a visa to remain indefinitely in Australia, the likelihood of him engaging in further criminal or other serious conduct is proportionately higher.
The state of the evidence is suggestive of the Applicant not having addressed the issues that have caused him to commit serious domestic violence offences. Were he to be returned to the community at this juncture, I have a firmly held apprehension that he would be a real risk of re-offending and, most likely, of causing serious and potentially catastrophic harm to other members of the Australian community, most obviously, his wife and their four dependents.
In summary, the following observations can be made about this Applicant’s conduct:
(a)His offending has been relatively frequent. He has been a mainstream member of the Australian community from approximately February 2017 to October 2017. This period has seen him twice seriously offend in a domestic violence context. It has also seen him disrespect lawful authority be breaching the privilege of bail that was granted to him following his offending on 30 May 2017.
(b)His history of offending in this country demonstrates both a refusal to respect and accept its lawful authority and to otherwise conform with expected norms in relation to domestic relationships. I regard as both brazen and astonishing his abovementioned evidence to the effect that it was not his appalling domestic violence conduct that gave rise to the separation between him and his wife. Instead, according to the Applicant, it was the government of this country with its imposition of the apprehended violence order of February 2017 that caused that separation. On this basis, says the Applicant, there was no genuine separation between him and her.
(c)While he talks about having remorse, having learnt his lesson, wanting to learn the ways of this country and become a changed man looking after his family, there is next to no expert or other evidence that the very real factors giving rise to his propensity to offend thus far have either been conclusively diagnosed or are otherwise the subject of effective remedial treatment by suitably qualified medical professionals. Allied to this observation (and finding) is the fact that the Applicant has next to no insight into the nature of either the causative factors behind his offending or the nature and potentially catastrophic harm resulting from that offending.
Upon the application of factors contained in sub-paragraph (3) of paragraph 11.1.2 of the Direction, I find that:
(a) the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct is very significant and potentially catastrophic; and
(b) there is a convincingly strong likelihood of the Applicant engaging in further criminal or other serious conduct;
(c) As a consequence of my findings in the immediately preceding sub-paragraphs (a) and (b), I find that there is a significant risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
Conclusion: Primary Consideration A
I am thus of the view that were the Applicant to be returned to the Australian community, there is a strong likelihood that he would engage in further serious conduct, most likely, in a domestic violence context. It is also quite likely that the harm that would be occasioned to others, were he to reoffend, would be both very significant and potentially catastrophic for his wife and their four dependents. In consideration of all relevant factors contained in the Direction, I find that Primary Consideration A weighs heavily in favour of refusing the visa.
Primary Consideration B: The Best Interests of Minor Children in Australia
Paragraph 11.2(1) of the Direction compels decision-makers to make a determination about whether refusal is, or is not, in the best interests of the child. Paragraphs 11.2(2) and 11.2(3), respectively, contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years old at the time when the decision to refuse to grant the visa is expected to be made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Applicant is the biological father to one child from his relationship with his wife. He is the step-father to three children deriving from a previous relationship of the wife. The Respondent accepts that the Applicant has played some role in each of the children’s lives, but contends that this must be weighed against two things. First, the Applicant’s biological child has been the victim of his prior offending. Second, were the Applicant to re-offend in a similar manner in the future, all four of the children would be exposed to a significant degree of risk of harm.[31]
[31] Exhibit 2, Respondent’s SFIC, page 8, paragraph [37].
The wife’s evidence indicates that she is the primary carer for her three young/infant children from her previous relationship. Although the father of those children has a level of periodic contact with them, there seems no doubt that those three children spend the predominant amount of their time under the care of their mother. On this basis, I am of the view that the Respondent’s concession is well made because, were the subject visa to be granted to the Applicant, he would, for all practical purposes, be the primary father figure for all four children.
The Respondent’s further contention is that this Primary Consideration B should weigh in favour of the Applicant but any such weight should be tempered and limited against the significantly heavier weight attributable to Primary Considerations A and C.[32]
[32] Ibid, paragraph [38].
Paragraph 11.2(4) of the Direction provides a list of factors to be considered in determining the best interests of the abovementioned children. Those factors relevantly comprise for present purposes:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
I am mindful of the elements necessary to be balanced in any proper consideration and application of Primary Consideration C to the present factual matrix. Since the early 2000s, Courts and Tribunals have been defining formulae to assist a decision maker in reaching decisions that accord with the expectations of the Australian community.
As a general proposition, Deputy President Block, in 2003, said that one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[41]
[41] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].
Judicial officers have defined the contemporary application of paragraph 11.3(1) of the Direction in earlier decisions. Although their respective comments relate to paragraph 13.3(1), it is noted that the two paragraphs are cast in virtually identical terms.
Deputy President Forgie of this Tribunal considered the Australian community’s expectations as part of her consideration of paragraph 13.3(1) of the Direction.[42] The learned Deputy President thought this paragraph leads a decision maker to:
102… conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…
…
103. Although ultimately a matter for judgement, the facts on which that judgement is made must be on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgement that is ultimately made by a decision-maker must be able to be explained.
[My underlining]
[42] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection:[43]
In substance this consideration is adverse to any Applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any Applicant who has failed the character test and has been convicted of serious crimes.
[My underlining]
[43] [2017] FCA 1466 at [76]-[77].
The learned Justice Mortimer went further, and thought the last two sentences of paragraph 13.3 of the Direction:
…[are] not a consideration dealing with any objective or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the Executive Government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the Applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do.
[My underlining]
In Afu v Minister for Home Affairs,[44] Justice Bromwich said:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.’
[My underlining]
[44] [2018] FCA 1311 at [85].
I cannot come to the conclusion that the Applicant should hold a visa in light of my findings as to:
(i)The very serious nature of his offending to date;
(ii)His demonstrated lack of insight into the nature of his offending;
(iii)My assessment of the significant risk of substantial and potentially catastrophic harm to the Australian community were he to reoffend;
(iv)The absence of any defined regime of treatment and management of the psychological and any other symptoms behind his propensity to offend;
(v)The comments of the learned Justices Mortimer and Bromwich and Deputy President Forgie about how a decision maker applies paragraph 13.3(1) (for present purposes, paragraph 11.3(1)) of the Direction in a contemporary context.
I therefore find that the Australian community would consider that this Applicant, who’s offending I have found to be very serious, has at least twice breached the trust they have placed in him to obey Australian laws while in Australia. Accordingly, I find that the Australian community would expect that the Applicant should not be granted a visa to remain here.
At the hearing, the Applicant spoke of wanting to return to the community and to live a different life. Does he deserve such an opportunity? The answer depends on the circumstances of his case to be considered in light of the overriding purpose of the legislation.[45]
[45] See Allan and Minister for Immigration and Border Protection [2016] AATA 1077 at [65] per Senior Member Toohey.
The Applicant came to Australia in January 2017 aged 27 years. He commenced offending barely three days after coming here. He offended again four months later in May 2017 during the currency of an apprehended violence order made against him for his first episode of offending in February 2017. He was granted bail for his offending in May 2017 and promptly breached that bail. He was sentenced to a 12 month custodial term for his offending in May 2017. The seriousness of his offending has been such that 16 of his 24 months in this country (or two-thirds) have seen him removed from the mainstream Australian community and placed in either criminal custody or immigration detention.
I am thus of the view that it is consistent with paragraph 11.3(1) of the Direction to find that the Australian community would expect that a non-citizen who has a history of the very serious offending of this Applicant, will not be given the benefit of being able to remain in Australia.
I therefore find that the Australian community would consider that this Applicant, who’s offending I have found to be very serious, has repeatedly breached the trust they have placed in him to obey Australian laws while in Australia. Accordingly, I find that the Australian community would expect that the Applicant should not be granted a visa to remain here.
Conclusion: Primary Consideration C
Having regard to this Primary Consideration C, I find that the community’s expectations in respect of this Applicant would endorse a finding of a refusal to grant the visa he now seeks. I accordingly find that this Primary Consideration C weighs heavily in favour of refusing the visa.
Other Considerations
I turn now to the Other Considerations listed at paragraph 12 of the Direction.[46] I have considered each of the four stipulated sub-paragraphs (a), (b), (c), and (d). They comprise:
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims;
(d)Impact on Australian business interests.
(a) International non-refoulement obligations
[46] Direction No 65, paragraph 12(1).
The Applicant was granted a Bridging (Class WC) visa on 24 August 2017 while his application for a Protection (Class XA) visa was being determined. Ultimately, on 13 October 2017, the Protection visa application was deemed invalid and not granted. On 20 October 2017, a delegate of the Minister cancelled the Applicant’s Bridging (Class WC) visa pursuant to s 116 of the Act on the basis that he was charged with criminal offences on 30 May 2017. The Applicant lodged a second application for a Protection (Class XA) visa on 17 April 2018. That application was refused by a delegate of the Minister. That decision was reviewed by this Tribunal that affirmed the delegate’s decision to refuse the Protection visa. The Tribunal’s decision was based on a finding that the Applicant was not a person to whom Australia owed protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
The Applicant has contended and continues to contend that he fears the prospect of returning to Iraq. In his Basic Personal Data form, he noted:
“Unfortunately, due to the real danger I would have faced if I returned to Iraq, I was unable to attend his funeral [ie of the Applicant’s father] - This fact will stay with me forever”[47]; and
“If I am forced to return to Iraq, I face a real threat to my life. If something were to happen to me my family would be devastated.”[48]
[47] Exhibit 3, Applicant’s Bundle filed on 12 February 2019, see “Basic Personal Data” form, page 7 thereof.
[48] Ibid, page 7.
In previous proceedings, it was contended on behalf of the Applicant that he:
“has applied for a protection visa in which he provided his claims that he is a refugee as defined by UN convention and that he has a well-founded fear of persecution for a number of reasons. The harm he was subjected to is objective and systematic and that relocation within his home country is unreasonable as the whole country is under similar situation”.[49]
[49] Ibid, see Submission by Australia Migration Centre Pty Ltd, page 9 thereof.
I also note the position propounded ultimately by the Respondent is that the Tribunal should place no weight on this consideration in circumstances where the Applicant’s Protection visa application has been considered and the claimed harm has been rejected as a basis for a Protection visa. Citing WAD531/2016 v Minister for Immigration and Border Protection[50], the Respondent contends that:
“….. notwithstanding that there are pending judicial review proceedings in respect of the refusal of the protection visa application. This is because in the event that the MRD’s decision is held to be affected by a jurisdictional error, the matter will be remitted to the MRD for redetermination such that the applicant will have his non-refoulement claims re-assessed if the MRD’s determination is found to be legally defective”.[51]
[50] [2018] FCAFC 213.
[51] Exhibit 2, Respondent’s SFIC, page 10, paragraph [45].
The question of non-refoulement obligations is perhaps one of the most difficult issues to be resolved in this case. The inquiry must start, as ever, with the terms of the Direction. Paragraph 12.1 provides:
1A 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…
2The 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 non-refoulement obligation exists.
3Claims 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 s501 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).
4Where 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.
5If, 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…
6In 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.
Consistent with paragraph 12.1(4), above, it was previously the practice for the Tribunal to not determine whether protection obligations are owed to an applicant where the visa that was cancelled was a visa other than a Protection visa. This position was changed after the Full Court of the Federal Court of Australia handed down its decision in the matter of BCR16 v Minister for Immigration and Border Protection (“BCR16”).[52] There, Bromberg and Mortimer JJ held that a decision-maker may fall into error if they assume that non-refoulement obligations would necessarily be considered in the assessment of a Protection visa, therefore obviating the need for the decision-maker at hand to consider the non-refoulement obligations. This decision seems to seriously undermine paragraph 12.1(4).
[52][2017] FCAFC 96; 248 FCR 456. The Full Court of the Federal Court of Australia refused to regard this decision as wrongly-decided: Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68.
In the wake of BCR16, the Respondent made another Direction under s 499 of the Act. This Direction, Direction No 75 – Refusal of Protection Visas Relying on Section 36(1c) and Section 36(2c)(b) (“Direction No 75”), provides guidance on the assessment of Protection visas. At Part 2 of Direction No 75, decision-makers are directed to assess individuals’ refugee and complementary protection claims “before considering any character or security concerns”. In this way, decision-makers such as the Tribunal can now take solace that errors such as those identified in BCR16 are no longer as relevant as they once were.
Direction No 75 was discussed by the Federal Court in Ali v Minister for Immigration and Border Protection (“Ali”).[53] In Greene v Assistant Minister for Home Affairs,[54] Logan J referred to Direction No 75 in summarising, in my respectful view very aptly, the decision in Ali:
The existence of that particular direction [in Part 2 of Direction no 75] persuaded Flick J in Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Ali) that, adverting to that practice by the Assistant Minister in reasons was sufficient recognition, even assuming the consideration was relevant, of non-refoulement and related obligations. In this case, the Assistant Minister’s reasons, at para 29, evidence a like recognition on this direction and related departmental practice. It suffices to say that, for the reasons given by Flick J in Ali, with which I respectfully agree, there is no substance in the allegation that non-refoulement obligations have not been taken into account.[55]
[53] [2018] FCA 650.
[54] [2018] FCA 919; cited with approval in Turay v Assistant Minister for Home Affairs [2018] FCA 1487.
[55] Ibid, [19].
Consequently, it seems that the present position has – at least in part – somewhat returned to the preferred position prior to when BCR16 was decided.
Here, the Applicant entered Australia on 31 January 2017 as the holder of a Spouse (Provisional – subclass 309) visa granted on the basis of his marriage to an Australian citizen. He has been residing in Australia on a Bridging (Class WC) visa. This visa is distinct from Protection visas, and is not a visa, the holding of which would bar a person from applying for a Protection visa.[56] As noted earlier, the Applicant has current judicial review proceedings pending in the Federal Circuit Court of Australia in relation to a decision of this Tribunal to affirm a decision of the delegate of the Minister to refuse to grant the Applicant a Protection visa.
[56] Cf Migration Regulations 1994 (Cth), Sch 1, Pt 4, cl 1401.
Accordingly, I find that there is a possibility that the Applicant may still apply for a Protection visa, subject to the outcome of the proceedings in the Federal Circuit Court of Australia. In making that determination, the decision-maker would be bound by Direction No 75, and so would have to make an assessment of the Applicant’s refugee and complementary protection claims before assessing any character or suitability concerns that may exist.
It seems like there has already been an assessment that Australia does not owe the Applicant non-refoulement obligations. I note the respective refusals of applications for a Protection visa in 2017 and 2018. Regardless, the critical question before the Federal Circuit Court of Australia in the pending judicial review process would therefore be whether any character or suitability concerns exist such that the Applicant does not qualify for a Protection visa. It would be inappropriate for this Tribunal in this instance, given the weight of the authorities mentioned above and the pending proceedings in the Federal Circuit Court of Australia, to make a decision in relation to Australia’s non-refoulement obligations owed to the Applicant.
As things stand, the Applicant has given albeit scant and undetailed evidence about being in “real danger” and of facing “a real threat to my life” were he to be returned to Iraq. While it has been propounded that the Applicant does face a fear of harm were he to be returned to Iraq, those claims have been twice previously rejected.
On the balance of the evidence before me, while this factor should to some extent weigh in the Applicant’s favour, I cannot find that it weighs heavily or to any other notable extent in his favour. The effect of Direction No 75 and subsequent Federal Court decisions is such that the Applicant will have further avenues through which he can pursue his refugee status in Australia. In those processes, Australia’s non-refoulement obligations to the Applicant will be assessed in a fulsome manner. I find that this limits the extent to which the non-refoulement obligations in this matter favour the granting of the subject visa. Consequently, I find that this Other Consideration (a) weighs slightly in favour of the grant of the subject visa.
(b) Impact on family members
The Respondent rightly concedes that this Other Consideration (b) weighs in favour of the Applicant. It is clear that were he to be returned to Iraq, there would be an adverse impact upon his wife, his biological child and, to the extent it can be gleaned from the above-quoted letter of support from his 16 year old step-daughter, his three step-children as well.
I agree with the Respondent’s contention that the wife’s above-quoted statutory declaration made in June 2018 and her oral evidence at this hearing, is starkly at odds with what she said at the sentencing hearing in October 2017. Her evidence about why she said what she said to the sentencing Magistrate in October 2017, is, in my respectful view, severely lacking in credibility. Accordingly, I adopt a very cautious approach in allocating any measure of weight to either the oral or written evidence of the Applicant’s wife.
Similarly, I approach with caution the evidence appearing at the 16 year old step-daughter’s letter of support in favour of the Applicant. The caution derives from the capacity of that child’s evidence being influenced by directions and/or “guidance” from those upon whom she relies for support and sustenance.
While this Other Consideration (b) militates in favour of the Applicant, only a moderate amount of weight is attributable to it and it does not outweigh the Primary Considerations A and C in favour of refusal.
(c) Impact on victims
There can be no doubt about the social disturbance and harm resulting from the Applicant’s two significant and very serious episodes of domestic violence offending. This observation ignores the observations of Mr Issenmann who noted that the Applicant told him “…. there have been previous incidents of violence within his relationship which was unreported to the authorities”. However, there are no actual victim impact statements (or equivalent) from the Applicant’s wife or on behalf of any of the children who were either directly or indirectly affected as victims on the receiving end of the Applicant’s very serious offending.
Even without any such Victim Impact Statements and/or expert reports about the impact of the offending on any/all of the children, it would be an exercise in unqualified conjecture for me to form a concluded view about the effect his continued presence in this country would have on those victims that have been at the receiving end of his very serious domestic violence offending.
Suffice it to say that for present purposes, I am therefore not able to conclude that this Other Consideration (c) attracts any weight either in favour of, or against, the grant of the subject visa. Therefore, this Other Consideration (c) is neutral to my consideration of this application.
(d) Impact on Australian business interests
I have had regard to the reference/letter of support[57] from the proprietor of the hairdressing business where the Applicant says he worked as a hairdresser on a voluntary basis. While the proprietor speaks positively of the Applicant, there is no suggestion in his reference/letter of support that refusal of the visa would have an impact on that proprietor’s business interests or on any other Australian business interests.
[57] Exhibit 5, Section 501 G Documents, G17, page 103.
Accordingly, this Other Consideration (d) is neutral to my consideration of this application.
Summary of weight attributable to Other Considerations
(a)Non-refoulement obligations: weighs slightly in favour of the Applicant;
(b)Impact on family members: weighs moderately in favour of the Applicant;
(c)Impact on victims: is of neutral weight;
(d)Impact on Australian business interests: is of neutral weight.
CONCLUSION
There is no doubt the Applicant does not pass the character test as defined in section 501(6) of the Act. In then considering whether to exercise the discretion afforded by section 501(1) of the Act to refuse the visa, I have had regard to the considerations referred to in Direction No. 65. I summarise my findings as follows:
-Primary Considerations A and C weigh heavily in favour of refusal;
-I have attributed a measure of weight to Primary Consideration B and the Other Considerations (a) and (b);
-Any weight attributable to Primary Consideration B and the Other Considerations (a) and (b) (alone or combined) does not outweigh the combined weight I have attributed to Primary Considerations A and C.
Having regard to the totality of the evidence, I am of the view that the Tribunal should exercise the discretion in section 501(1) of the Act to refuse to grant the visa.
DECISION
For the reasons outlined above, I affirm the decision under review.
I certify that the preceding 186 (one hundred and eighty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
......................[SGD]...............................
Associate
Dated: 26 February 2019
Date of hearing: Tuesday 19 February 2019 Advocate for the Applicant:
Solicitors for the Applicant:
Mr Rana Abbas
R & J Lawyers
Advocate for the Respondent:
Solicitors for the Respondent:
Mr Karwan Eskerie
Sparke Helmore
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