Zbib and Minister for Immigration and Border Protection (Migration)

Zbib and Minister for Immigration and Border Protection (Migration) [2017] AATA 412 (4 April 2017)
Division:GENERAL DIVISION
File Number(s): 2017/0143
Re:Mohamad Zbib
APPLICANT

Minister for Immigration and Border ProtectionAnd
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:4 April 2017
Place:Sydney

The decision under review, being the decision made 16 December 2016, to refuse to grant Mr Zbib a Partner (Temporary) (Class UK) visa is set aside.
The matter is remitted to the Minister for reconsideration in accordance with the direction that, at the date of this decision, Mr Zbib is entitled to be granted a Partner (Temporary) (Class UK) visa in accordance with the provisions of the Migration Act 1958 (Cth).
......................[sgd]..................................................
Deputy President J W Constance
Catchwords
IMMIGRATION – partner visa refusal – failure to pass the character test – whether to exercise s 501(1) discretion to refuse on character grounds – applicant convicted of act of indecency against a minor prior to arriving in Australia – two years’ imprisonment – whether conviction subsequently ‘expunged’, ‘deleted’ or ‘removed’, effect of – protection of the Australian community – expectations of the Australian community – impact on family members – best interests of child – decision set aside and remitted
Legislation
Migration Act 1958 (Cth), ss 499(1), (2A), 500(6H), 501(1), (6)-(7), (10)
Cases
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385
Uelese and Minister for Immigration and Border Protection and Another [2015] HCA 15
Secondary Materials
Direction No. 65 – Migration Act 1958 – Direction under section 499, Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Deputy President J W Constance
4 April 2017
A. INTRODUCTION
Mr Zbib has applied to the Tribunal to review a decision of a delegate of the Minister (made in accordance with section 501(1) of the Migration Act 1958 (Cth)) to refuse to grant him a Partner (Temporary) (Class UK) visa.
Mr Zbib is in immigration detention as the Bridging visa previously held by him has been cancelled. Unless he is granted the visa for which he has applied, he will be required to return to his home country, Lebanon.
For the reasons which follow, the decision under review will be set aside and in substitution the matter will be remitted to the Minister with a direction that at the date of the decision Mr Zbib is entitled to be granted the visa for which he has applied.
B. BACKGROUND
Mr Zbib is 40 years old. He is a citizen of Lebanon.
Mr Zbib married Ms Soukie, an Australian citizen, in 2013. They have a daughter aged four years who is also an Australian citizen. Both Ms Soukie and their daughter were born in Australia. Prior to Mr Zbib being taken into detention, the family lived together in Australia.
Mr Zbib first entered Australia in 2005 as a visitor. He returned in 2008 and was granted a Partner (Temporary) (Class UK) visa. He has lived here since. He subsequently married. He was divorced from his first wife shortly before he married Ms Soukie.
In October 2012 Mr Zbib applied for a combined Partner (Temporary) (Class UK) and Partner (Permanent) (Class BS) visa, sponsored by Ms Sukie. He was granted a Bridging visa in association with his substantive applications. In 2016 the Bridging visa was cancelled on the basis that Mr Zbib had given incorrect information on his passenger cards in 2005, 2008 and 2010 by failing to disclose that he had been convicted of a criminal offence in Lebanon in 1999.
On 16 December 2016 a delegate of the Minister refused Mr Zbib’s application for a Partner (Temporary) (Class UK) visa as the delegate was not satisfied that Mr Zbib had passed the character test and he had decided to exercise the discretion to refuse the application.[1]
[1] Exhibit R1 p.10.
Mr Zbib has applied to the Tribunal to review this decision.
Mr Zbib’s criminal and other convictions
In December 1999 Mr Zbib was convicted in the South Criminal Court in Lebanon of the crime of an “indecent act”.[2] He was sentenced to two years hard labour, denied civil rights and ordered to pay legal costs.
[2] Exhibit R1 p.121.
The circumstances of this conviction are unclear, despite efforts by the legal representatives of both parties to obtain further information from authorities in Lebanon. The certificate issued by the Lebanese Judicial Police discloses no more than is set out above.
Apart from the evidence of Mr Zbib, the only other information as to the offence is contained in a letter from the General Director, Ministry of Interior Affairs and Municipalities in 2012.[3] In the letter the offence is described as “molestation of minor” and the sentence being two years imprisonment “for act of indecency”.
[3] Annexure to exhibit A1.
Mr Zbib described the circumstances of his conviction as follows:[4]
[4] Exhibit A1.
26. I would like to set out the circumstances of my conviction, to the best of my recollection and understanding.
27. My stepmother’s friend Hwaida, who was our neighbour, had a young daughter called [the victim]. This woman’s husband Mohamad Ramiz Abou Raya had a place on the lower floor of their home. It had a separate entrance and was self-contained. He rented the flat to a man from Egypt named Abed.
28. Abed was in his forties or fifties and lived alone, and sometimes I would have Shisha (using a hookah pipe) with him on the rooftop of my father’s house. I never went into Abed’s home.
29. One day in 1998 I was walking past Abed’s house on my way home and I saw [the victim], the neighbour’s little girl, coming out of Abed’s place. I asked her what she was doing there. It did not seem right for [the victim] to be coming out of Abed’s house by herself. Abed was an older man living by himself, and had only been there for a few months. [The victim] and her parents were our neighbours and they were good neighbours. I called out to [the victim] out of concern, and asked her what she was doing there by herself.
30. [The victim’s] mother Hwaida used to come to our house every day and visit my stepmother. The day after I saw [the victim] near Abed’s place, Hwaida came over and she said words to the effect of “What have you done to my daughter?”
31. I did not talk to her then because my stepmother was there, and I did not like to associate with her or speak to my stepmother, because of the stories she used to make up about me.
32. Hwaida went home, and later that day I asked her what she had been talking about earlier. I told her that all I did was call out to [the victim] because she was downstairs by herself. I thought that I was doing the right thing by my neighbours, as it was unusual to see their daughter outside wandering around at such a young age.
33. Hwaida called [the victim] and asked her “Did Mohamad scream at you?” and [the victim] said “yes”. Hwaida then asked [the victim] “Were you downstairs by yourself?” and [the victim] said “yes”.
34. This was in the morning, and at the time it seemed like Hwaida was mostly worried about her husband finding out that [the victim] had been wandering round by herself unsupervised.
35. Later that evening, I was with my grandmother. My father’s house was in a sort of family compound where many of my relatives lived nearby. I heard a commotion in the street with arguing, fighting and screaming, and I went outside to see what was going on. A lot of people did the same.
36. The Egyptian guy Abed was being beaten up and eventually he ran away. To this day, I do not know whether he had actually done anything to [the victim], or what exactly he was accused of doing.
37. After that [the victim’s] father started making accusations against me, swearing and accusing both Abed and me of molesting his daughter. I was so shocked I barely knew what was happening. I also became angry, and we argued and fought and people had to pull as apart.
38. Later that night, my brother Hussein told me that [the victim’s] parents had filed a report against me. A day or two later I went to the police station.
39. When I went to the police station, [the victim] and her parents were there. The police only asked [the victim] one question: “Is this Mohamad?” and she said “Yes, I know Mohamad”. That was it. The police took me into custody, and kept me there. They beat me up all night and into the next morning. They kept saying that if I admitted what I had done they would help me. I did not admit to anything as I did not do anything to [the victim].
40. To this day, I do not know exactly what I am supposed to have done. I do not know what the Egyptian guy Abed was supposed to have done. [The victim’s] father wrote a letter in February 1999. That letter was provided to the Department of Immigration and Border Protection. It says that he accused me of assaulting his daughter and that [the victim] confirmed that I had not assaulted her. That is about as much detail as I know.
41. I remained in prison after that. My case was referred to a judge and there was a few months’ break where I just waited in prison.
42. My father was away overseas, working, and he did not know about the problems I was having for a couple of months. We did not want to worry him while he was travelling and knowing I was innocent I believed that I would have to be released soon. At that time, in the village, you had to go to a central shop in order to make or receive an overseas phone call. My relatives did try to provide emotional and practical support to me but our village is a poor village and no one could afford to help me financially to pay for a lawyer. I did not have any money to pay a lawyer.
43. When my case was referred to a judge, the judge asked a lot of questions. He called on [the victim’s] parents and asked them questions as well.
44. I told the judge that I did not see the Egyptian guy do anything to [the victim]. I told him [the victim’s] father was a good man, and my neighbour, and so I told her parents when I saw [the victim] near the guy’s place.
45. I remember the judge asking me why [the victim’s] father was accusing me of molesting her, and I asked the judge “If I had committed this offence don’t you believe this young girl would be frightened of me?” But [the victim] was standing not that far from me in court and smiling and happy until her mother started screaming and yelling and caused a traumatic scene which made the girl start crying.
46. At one point, the judge asked me a strange question. He said something like “Why do you think your stepmother wants to hurt you in this way?” Since then I have always suspected that my stepmother had something to do with my conviction. I suspect she might have said something to [the victim’s] mother about me which caused them to suspect me, although I do not know this for a fact.
47. Throughout the court case I pleaded not guilty.
48. During that process, [the victim’s] father made a declaration withdrawing his complaint against me. When the judge asked him why he was making that declaration, [the victim’s] father said that he could not get a straight answer from [the victim] about what happened to her, and that “sometimes she says yes, sometimes she says no”.
49. [The victim] was brought into the court, and the judge asked her questions and she just looked down at the ground and said nothing. The judge took her lowering her head as confirmation that something happened to her. I do not remember exactly what he said but I remember the judge telling the person who was transcribing the proceedings that by the movement of [the victim’s] head he was taking it as a “yes”.
50. The judge asked me if I wanted to say anything, but I said that I would leave it in the hands of the court. I did not see how the court could find me guilty of doing anything to [the victim].
51. The sentence was going to be happening that afternoon, but that day some judges including the judge in my case were killed by armed gunmen inside the court.
52. After that, new judges had to be assigned to all the outstanding cases, and a new judge was assigned to my case. When I went before the new judge he just asked me “what do you have to say for yourself?” and I said the same thing that I told the other judge, that I would leave it in the hands of the court.
53. I was convicted and I served two years in prison for a crime that I did not commit. The Egyptian guy had run off after he was beaten up, but I heard that he was sentenced to 15 years in his absence.
54. I wanted to appeal the conviction, but by the time I was sentenced I was quite far into my sentence and people advised me that the Court of Appeal in Lebanon is very slow, and an appeal would be expensive and take longer than it would take to serve the rest of my sentence. I decided to just finish my sentence.
55. I still believe that my stepmother had said something to our neighbours about me that made them suspect me of harming their child. While I was in prison, my stepmother got pregnant and had a baby son.
56. My time in prison was a terrible experience and I still have nightmares about it to this day. It is very painful to me to discuss this time.
…
59. Several years after I had been released from prison I applied to have my conviction removed from my record. This is possible in Lebanon once it has been about five years since the sentence has finished. You apply to the courts and they look at your history, your reputation, and behaviour. This request was granted in my case and the conviction was deleted from my record.
Mr Zbib has also been convicted of two offences in Australia:
·June 2014 – driving with low range prescribed concentration of alcohol; fine of $300 and disqualification for three months;
·August 2015 – driving while licence cancelled; section 10 bond for 10 months.
I accept Mr Zbib’s evidence that he committed the second of these offences after he had received notification that his period of disqualification had expired and that he did not realise that he needed to re-apply for a licence.
C.LEGISLATION
The grant of visas to entitle non-citizens to enter Australia is governed by the Migration Act 1958 (Cth). The stated object of the Act is “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.”[5]
[5] Subsection 4(1).
Section 501 of the Act provides, in part:
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
…
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
(7) For the purposes of the character test, a person has a substantial criminal record if: ...
(c) the person has been sentenced to a term of imprisonment of 12 months or more…
Section 499 provides, in part:
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
…
(2A) A person or body must comply with a direction under subsection (1).
D. DIRECTION NO. 65 – VISA REFUSAL UNDER S501
In exercise of the power given by s 499, the Minister issued Direction no. 65 on 22 December 2014. It provides “General Guidance for decision-makers and the Principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to… refuse a non-citizen’s visa under section 501…”.[6]
[6] Clause 5.
Paragraph 6.2 provides general guidance in exercising the discretion to refuse the grant of a visa:
6.2 General Guidance
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
The Principles are set out in paragraph 6.3:
6.3 Principles
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
The manner in which the discretion is to be exercised is set out in paragraph 7. Informed by the principles in paragraph 6.3 the decision-maker must take into account the considerations set out in Part B of the Direction. I will refer to these considerations in detail later in these reasons.
Paragraph 8 provides that a visa applicant “should have no expectation that a visa application will be approved.” The paragraph further provides that “primary considerations should generally be given greater weight than the other considerations” and that “one or more primary considerations may outweigh other primary considerations”.[7]
[7] Subparagraphs (4) and (5) respectively.
E. ISSUES FOR CONSIDERATION

Two main issues arise for consideration.
Issue 1:Does Mr Zbib pass the character test set out in subsection 501(6) of the Act?
Issue 2: If not, should the discretion to refuse Mr Zbib’s application for a visa be exercised?
F. ISSUE 1: DOES MR ZBIB PASS THE CHARACTER TEST SET OUT IN SUB-SECTION 501(6) OF THE ACT?
Mr Zbib’s argument
Counsel argued that Mr Zbib does not have a “substantial criminal record” as his conviction for an act of indecency was “expunged” in 2007. Mr Zbib said that he applied in 2007 and that his application was granted and the conviction was “deleted from my record.” [Emphasis added][8]
[8] Exhibit A1 para. 59.
Counsel also relied upon the translation of the Police Clearance certificate issued on 25 April 2012.[9] In reference to the conviction, the translated document includes:
Sentence deleted pursuant to decision of reconsideration on 18.09.2007.
[9] Exhibit R1 p.121.
Translation of Mr Zbib’s Criminal Record filed on behalf of the Minister
A certified translation of Mr Zbib’s Criminal Record provided by Nabtiah Judiciary Register, Head of Office in Lebanon,[10] states that Mr Zbib’s conviction was “Delisted because of Re-Consideration” on 18 September 2007. [Emphasis added]
[10] Exhibit R4.
Further information provided at the request of the Tribunal
As there was a dispute as to the correct translation of the words referring to the action taken in respect of Mr Zbib’s conviction, I requested the translator of the Police Clearance certificate, Mr Ajjawi, to give evidence. I took this course as Counsel for the Minister objected to Mr Zbib providing additional evidence on the basis that a written statement of that evidence had not been provided more than two days before the hearing.
Counsel referred me to subsection 500(6H) of the Act which provides:
If:
(a) an application is made to the Tribunal for a review of a decision under section 501 or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa; and
(b) the decision relates to a person in the migration zone;
the Tribunal must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.
In Uelese and Minister for Immigration and Border Protection and Another[11] the majority of the Full Court of the High Court said:
The purpose of ensuring the expeditious determination of applications for review under s 500 of the [Migration Act] by requiring that the Minister be given “an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing”, which might result from a late change to the applicant’s case, is not compromised by accepting that the preclusory effect of s 500(6H) is confined to information presented by or on behalf of the applicant for review in support of his or her case. Where information is adduced in cross-examination by the Minister, or in response to inquiry by the Tribunal itself, it is inherently unlikely that the information is provide as part of an attempt to manipulate or delay the review process.[12]
[11] [2015] HCA 15.
[12] At para.59.
Mr Ajjawi gave evidence that the word “delisted” was not an accurate translation of the corresponding Arabic word in the Criminal Record. In his opinion the correct translation was “removed.”
Discussion
It is not in dispute that in 1999 Mr Zbib was convicted of the offence of committing an indecent act for which he was sentenced to a term of imprisonment of two years.
Taking into account Mr Zbib’s evidence and the translations of the various documents, I cannot be satisfied that the Lebanese authorities have set aside or otherwise dealt with the conviction so as to “expunge” it with the effect argued for by Mr Zbib’s Counsel. The evidence leads me to conclude that the record of the conviction has been removed from Mr Zbib’s criminal record, but the actual conviction was not “quashed or otherwise nullified”.[13] This is consistent with Mr Zbib’s evidence that several years after his release from prison he applied to have his conviction “removed from [his] record.”[14] This was done after a court looked at his history, his reputation and his behaviour. These considerations appear to be relevant to the deleting of a record of a conviction rather than the nullifying of that conviction.
[13] Subsection 501(10) provides, in part:
For the purpose of the character test, a sentence imposed on a person, or the conviction of a person for an offence, is to be disregarded if:
(a) the conviction concerned has been quashed or otherwise nullified;.
[14] Exhibit A1 para.59.
On this basis I am satisfied that Mr Zbib has a
“substantial criminal record” as defined in subsection 501(7). As a result he does not pass the character test in accordance with subsection 501(6). The discretion set out in subsection 501(1) is enlivened.
G. ISSUE 2: SHOULD THE DISCRETION TO REFUSE MR ZBIB’S APPLICATION FOR A VISA BE EXERCISED?
Part B of the Direction sets out the primary and other considerations I must take into account in deciding whether or not to exercise the discretion to which I have referred.
Primary considerations
The Primary considerations are set out in paragraph 11. They are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian Community.
Primary consideration (a): Protection of the Australian community from criminal or other serious conduct
Paragraph 11.1 of the Direction provides that “decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.” Consideration is also to be given to the nature and seriousness of the applicant’s conduct to date and the risk to the community should the applicant commit further offences or engage in other serious conduct.
Subparagraph 11.1.1 sets out further principles to which regard is to be had in considering the nature and seriousness of the non-citizen’s criminal offending. These are set out in full in the Schedule to these reasons.
There can be no doubt that the offence of which Mr Zbib has been convicted is very serious. It involves a crime of a sexual nature involving a vulnerable member of the community, a child under 10 years of age. The only description of the conduct which constituted the crime is that it was an “indecent act”.
It is clear that the Tribunal should not make a finding contrary to the sentencing of a court nor contrary to any findings of fact which formed the basis for the sentence.[15] However in this matter I have no evidence to allow me to make any findings as to the circumstances of the offence other than as set out in the record of the conviction and the circumstances described by Mr Zbib himself.
[15] Minister for Immigration and Multicultural Affairs vAli [2000] FCA 1385.
Mr Zbib was cross-examined at length as to his evidence that he did not commit an indecent act involving the young girl and that he had never been informed by the Police or the Court of any details of the conduct alleged against him. It was put to him that he was not telling the truth when he said that he did not know what was alleged against him even though he spent two years in prison. He explained his decision not to appeal his conviction on the basis that he would have been released at the end of his term before the appeal would have been heard. The process was further complicated by the fact that the judge dealing with his plea of guilty was killed before the hearing was completed.
Report of Mr Watson-Munro, Consultant Forensic Psychologist
Mr Watson-Munro assessed Mr Zbib on 17 February 2017 and provided a report dated 6 March 2017.[16] He did not give oral evidence.
[16] Exhibit A5.
Mr Watson-Munro reported, in part:
4. My opinion regarding Mr Zbib’s risk of reoffending, bearing in mind that he denies ever having committed the offence he was convicted of.
It is always difficult to predict recidivism. I note however that the offending in Lebanon was removed from the record. Mr Zbib maintains his innocence in this regard. His forensic history in Australia is comparatively unremarkable with one low range PCA and a drive whilst disqualified conviction for which he received a Section 10 Bond. In all other respects his existence in Australia has been pro-social. He impresses as a devoted father and husband who is focused upon working to provide for his family.
5. My opinion as to Mr Zbib’s current commitment to avoiding further offending.
No doubt Mr Zbib is clearly aware of the consequences which could accrue if he is to offend in any way now or in the future. I note that he has a forensic history in Australia referable to drink-driving and driving whilst disqualified. His exposure to the criminal justice system as well as the considerable castigation which he received from his wife, evidently had a salutary effect upon him.
Taking all factors into account, I believe that if given the opportunity, Mr Zbib will return to the community with a view to supporting his wife and child and regaining employment. It would be advantageous for him to undertake some supportive and motivation psychotherapy referable to his current symptomatology.
I am greatly encouraged by the fact that he does not use illicit drugs and there is no evidence of him associating with the criminal milieu. These issues too point to a positive prognostic outcome in terms of forensic considerations.[17]
[17] Exhibit A5 pp.11-12.
Discussion
Clearly the Australian community has very low tolerance of the risk of harm to children as a result of any criminal offence of a sexual nature. The seriousness of the potential harm to children is very high. These considerations would normally weigh heavily in favour of the refusal of a visa. However Parliament has not said that a conviction of an offence of a sexual nature involving a child necessarily disentitles a person to enjoy the privilege of living in this country. Instead it has said that it is one of the primary considerations to be balanced against a number of other factors.
It is now 18 years since Mr Zbib was convicted. He has lived in Australia for eight years, has married and has a young daughter. Although he has been convicted of two traffic offences, he has no criminal convictions in Australia nor is there any suggestion that he has been involved in any inappropriate conduct concerning children.
Although Mr Watson-Munro does not report directly on the chances of Mr Zbib being involved in any recidivist conduct, it is clear from his report concerning his pro-social existence and his relationship with his wife and daughter that he considers the chance of Mr Zbib re-offending to be low.
Counsel for the Minister argued that this evidence should not be accepted because it proceeds on the basis of the applicant’s account of events only.[18] I do not agree. Mr Watson-Munro assessed Mr Zbib in person and spoke to Ms Soukie on three occasions. Mr Watson-Munro was not required to attend for cross-examination and his report was taken into evidence with the consent of the Minister.
[18] Respondent’s Statement of Facts, Issues and Contentions at para.48.
The lack of evidence makes it very difficult to assess the nature and seriousness of the conduct and the risk to the community should Mr Zbib commit further offences or engage in other serious conduct.
At all times Mr Zbib has maintained his innocence of the crime of which he has been convicted. As a consequence he has never expressed any remorse.
Having heard and observed Mr Zbib give evidence I am satisfied that he was telling the truth. It was difficult for him to speak through an interpreter and it appeared to me that he was extremely embarrassed by the position in which he found himself.
Although I cannot look beyond the conviction, I can take into account the circumstances in which the conviction took place. In particular I take into account that the young girl’s father, who had complained to the Public Prosecutor’s Office initially, withdrew his complaint in February 1999, nine months before Mr Zbib was convicted.[19] In doing so he stated that “there was a doubt about Mohamad being the person who assaulted my under age daughter … and as my daughter … confirmed that Mohamad has not assaulted her.”
[19] Exhibit R1 p.123.
Mr Zbib said that despite this withdrawal the Police proceeded with the case against him, repeatedly demanding that he tell them what he had done. He also gave evidence, which was unchallenged, that he had been told that at the same time another male neighbour was accused of inappropriate conduct in relation to the child and was convicted and sentenced to 15 years imprisonment in his absence.[20]
Primary consideration (b): the best interests of minor children in Australia
[20] Exhibit A12 para.53.
Mr Zbib’s evidence
After his Bridging visa was cancelled and before he was taken into immigration detention, Mr Zbib was unable to obtain employment and Ms Soukie returned to work to support the family. Previously Mr Zbib provided the necessary financial support for the family. During the time he was not working, Mr Zbib was the primary carer of his daughter during the day. The family engaged in normal family activities and outings during the weekend.
Since Mr Zbib has been detained Ms Soukie and their daughter have visited him at least once per week and, at times, more often.
If the family moves to Lebanon Mr Zbib’s daughter would be raised in a village where both parents would find it difficult to obtain employment. Mr Zbib’s family in Lebanon is not in a financial position to support them. The daughter is to start kindergarten in 2018 and Mr Zbib believes his daughter would obtain a better education in Australia than in Lebanon.
Mr Zbib has a very close and loving relationship with his daughter.
Ms Soukie’s evidence
Ms Soukie provided a statement dated 23 March 2017[21] and gave oral evidence at the hearing.
[21] Exhibit A3.
Their daughter was born in Sydney and has lived all her life in Australia. She is an Australia citizen.
The relationship between their daughter and Mr Zbib is very close and he is very protective of her. She has been suffering badly since Mr Zbib has been detained and has been exhibiting disturbed behaviour. She telephones her father in the morning and in the evening each day.
Ms Soukie believes that it would be better for their daughter to grow up in Australia than in a village in Lebanon. She has relatives in Australia who are known to her, including her grandparents, uncles and aunts and children of the same age. The children and their parents visit on a regular basis.
Their daughter has never been to Lebanon. She has little understanding of Arabic and does not speak the language. Ms Soukie would be concerned for her daughter’s physical safety if she was living in Lebanon by reason of the political unrest there.
Report of Mr Watson-Munro
When Mr Watson-Munro assessed Mr Zbib on 17 February 2017 he also had the opportunity to observe him in the presence of Ms Soukie and their daughter. On 6 March 2017 he reported, in part:
Consistent with the material I have subsequently read, it was apparent to me that [Mr Zbib’s daughter] has a special bond with her father, which no doubt in part relates to the fact that during her early formative years, subsequent to him losing the right to work when his Bridging Visa was cancelled, he became in many ways her primary carer during the day, when his wife was at work.
…
It is clear that the child, given her age, is bewildered by his absence. This is consistent with my view that she is currently suffering even though he is still in the country. Clearly, if he is to be deported her anxiety and grief would become even more severe.
…
His daughter is unaware of his precarious position in Australia and clearly is not able to comprehend the nuances associated with his current detention. It is clear however that she is a happy child who loves being in the company of her father.[22]
[22] Exhibit A5 pp.7-10.
Mr Watson-Munro further reported that if Mr Zbib was to leave Australia without his family the daughter would be “greatly affected by his loss” as she is at a “particularly vulnerable stage in her emotional and cognitive development. Given the depth of the bond with her father, a permanent separation from him…would have a significant and lifelong impact upon her sense of stability and emotional security”.[23]
[23] Exhibit A5 pp.10-11.
Mr Watson-Munro is of the opinion that should the family relocate to Lebanon the daughter in particular will be exposed to a highly divergent culture and language and her life would be “dramatically dislocated.”[24]
[24] Exhibit A5 p.10.
Based on the evidence I have referred to, I am satisfied that if Mr Zbib’s application for a visa is refused, his daughter’s interests will be detrimentally affected, irrespective of whether she lives in Lebanon or in Australia. I am satisfied that this consideration weighs heavily in favour of Mr Zbib being granted the visa he seeks.
Primary consideration (c): the expectations of the Australian Community
In accordance with paragraph 11.3 of the Direction, it may be appropriate to refuse a visa application where there is an unacceptable risk that an applicant will breach the trust of the Australian community that the applicant will obey Australian laws. For the reasons already stated, I consider the risk of Mr Zbib engaging in conduct of the type of which he has been convicted, is very low. Taking into account all of the evidence I am satisfied that such a risk is acceptable.
It may be appropriate to refuse a visa because the nature of an offence which has been committed are such that the Australian community would expect that a visa not be granted. I take into account the Government’s views expressed in the Direction, particularly those set out in paragraph 6.3(3), to which I have already referred. However, given the uncertainty as to the actual events leading up to Mr Zbib’s conviction and the views expressed by Mr Watson-Munro, a Consultant Forensic Psychologist, I have concluded that the majority of the Australian community would not expect Mr Zbib to be denied a permanent visa in the circumstances of this matter.
It is very difficult to determine the expectations of the Australian community in a matter such as this. Undoubtedly there are those in the community who will strongly disagree with the conclusion I have reached. In the interests of Mr Zbib and his family it is to be hoped that any comment on Mr Zbib’s application be made after careful consideration of the Act, the Direction and these reasons. Unfortunately it is my experience that often public comment is made in these matters without consideration being given to the applicable law, the Direction and the relevant facts.
Other considerations
Under the heading “Other considerations – visa applicants” paragraph 12 of the Direction provides:
(1) In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a) International non-refoulement obligations;
(b) Impact on family members;
(c) Impact on victims;
(d) Impact on Australian business interests.
The subparagraphs providing further detail in relation to each of the considerations referred to above are set out in the schedule to these reasons.
There is an obvious drafting error in the opening words of this paragraph. They refer to “deciding whether to cancel a visa”, rather than to deciding whether to refuse a visa. Nevertheless, it is clear that it was the intention of the Minister that this paragraph refers to an application for the grant of a visa. The paragraph is in Part B, which specifically relates to visa applications. Further, subparagraphs (2)-(6) inclusive all refer to a visa application.
International non-refoulement obligations

There are no international non-refoulement obligations relevant in this application.
Impact on family members
I have already dealt with the impact of a decision to refuse Mr Zbib’s application on his daughter. I turn to consider the impact of a decision to refuse Mr Zbib’s application on his spouse, Ms Soukie.
Ms Soukie’s evidence
Ms Soukie was born in Australia and has lived here all her life. Her parents, siblings and extended family live in Australia and provide support for the Zbib family. She has some extended family members in Lebanon but she has spent little time in that country. Her support network of family and friends is in Australia. I accept this evidence.
Report of Mr Watson-Munro
In addition to observing Ms Soukie with Mr Zbib on 17 February 2017, Mr Watson-Munro had further discussions with her on 23 February 2017 and 6 March 2017.
In the opinion of Mr Watson-Munro Ms Soukie will be “dramatically affected”[25] should her husband be required to leave Australia. Further she is suffering reactive depression and anticipatory anxiety as to the consequences for the family should this occur.
[25] Exhibit A5 p.10.
Discussion
I am satisfied that Ms Soukie was an honest witness. I am satisfied that she is genuinely concerned that the family would be in a very difficult position should she and her daughter accompany Mr Zbib to live in Lebanon if his visa application is refused. I am satisfied that she has the support of family and friends in Australia (including her parents and siblings) and that she could not enjoy the same degree of support if she was living in another country.
I am satisfied also that the relationship between Ms Soukie and Mr Zbib is close and they are supportive of each other and that Ms Soukie is genuinely concerned about the effect on their daughter should she be separated from her father.
Consideration of the effect of a refusal to grant Mr Zbib a visa on Ms Soukie weighs heavily in favour of not refusing his application.
Impact on victims
There is no evidence to allow me to make any finding in relation to any possible impact of a decision to refuse or to grant a visa to Mr Zbib on the victim of Mr Zbib’s offence.
Impact on Australian business interests
There is no evidence to suggest that a refusal to grant a visa would have any impact on Australian business interests.
H. BALANCING THE SEVERAL CONSIDERATIONS
As I have already set out, I am to be informed by the Principles in paragraph 6.3 in exercising the discretion to grant or refuse Mr Zbib’s application for a permanent visa.
These Principles include that being able to come to Australia is a privilege conferred on non-citizens “in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community”.
A conviction for an offence of an act of a sexual nature involving a child will always raise very serious concerns as to a person’s entitlement to enjoy the privileges of living in Australia. As the Principles state, a person convicted of such an offence should generally expect to forfeit the privilege of staying in this country. However, in Mr Zbib’s case, a careful balancing of all the relevant principles has caused me to conclude that the discretion to refuse his application for a visa should not be exercised.
The most important consideration in my reaching the conclusion that I have is the best interests of Mr Zbib’s four year-old daughter. As one would expect, Mr Zbib and his daughter have a close and loving relationship which has been strengthened by Mr Zbib having the opportunity to spend additional time with her when he was prevented from being employed after his Bridging visa was cancelled.
If Mr Zbib is refused a visa, the interests of his daughter will be adversely affected whatever decision is made for the future of the family. If Ms Soukie remains in Australia their daughter will lose the close contact with her father and grow up not having the benefit of his being a member of her household. However, if Ms Soukie and their daughter accompany Mr Zbib to Lebanon, she will be living in a culture in which she is unfamiliar, including a language she neither speaks nor understands. She will be separated from her close relatives, including all her grandparents. She will also lose the opportunity of being educated in Australia. If Ms Soukie’s fears are well-founded, she will be living in a poor community at risk of serious injury or death as a result of political unrest.
The Minister agrees that the best interests of the child favour the grant of a visa to Mr Zbib. I have concluded that this consideration weighs very heavily in favour of Mr Zbib being able to remain in Australia.
In addition to the interests of the daughter, the interests of Ms Soukie also are in favour of the grant of a visa to Mr Zbib. She was born in Australia, is an Australian citizen and has her immediate family and friends around her to provide support if it is required. Ms Soukie is understandably apprehensive about the prospects of the family having to leave Australia to try to settle in a country with which she has little familiarity.
I have taken into account also that it is 18 years since Mr Zbib was convicted and that the laws of Lebanon where he was convicted have permitted the record of his conviction to be removed from his criminal record. Further, he has not been convicted of any other offences apart from the two traffic matters. Whilst there is no excuse for Mr Zbib’s driving whilst under the influence of alcohol and endangering the lives of others, I do not consider that the convictions are sufficiently serious to cause me to change my assessment of the other factors.
I have also taken into account that Mr Zbib did not disclose his conviction in Lebanon when completing passenger cards and in his first application for a visa. I do not consider that these matters are of sufficient weight to cause me to change my assessment of the situation.
I. CONCLUSION
The decision under review, being the decision made 16 December 2016, to refuse to grant Mr Zbib a Partner (Temporary) (Class UK) visa is set aside.
The matter is remitted to the Minister for reconsideration in accordance with the direction that, at the date of this decision, Mr Zbib is entitled to be granted a Partner (Temporary) (Class UK) visa in accordance with the provisions of the Migration Act 1958 (Cth).

I certify that the preceding 92 (ninety-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

....................................[sgd]....................................
Associate
Dated: 4 April 2017

Date(s) of hearing: 23 March 2017

Counsel for the Applicant: Mr N Poynder

Solicitors for the Applicant: Kinslor Prince Lawyers

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Sparke Helmore
SCHEDULE
11.1.1 The nature and seriousness of the conduct
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197 A of the Act;
d)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section

501 (6)(c), is considered to be serious;
e) The sentence imposed by the courts for a crime or crimes;
f)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

g) The cumulative effect of repeated offending;
h)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
i)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

11.2 Best interests of minor children in Australia affected by the decision
(1)Decision-makers must make a determination about whether refusal is, or is not, in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant the visa is expected to be made.
(3)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.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
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.

12.1 International non-refoulement obligations
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2)The existence of a non-refoulement obligation does not preclude refusal of a non-citizen’s visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the nonrefoulement obligation exists.
(3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under 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).
(4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to detennine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.
(5)If, however, the visa application being considered for refusal is a Protection visa application, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).
(6)In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa application were refused, they would face the prospect of indefinite immigration detention.

12.2 Impact on family members
(1) Impact of visa refusal on immediate family members in Australia,
where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely;

12.3 Impact on victims
(1) Impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where that information is available and can be disclosed to the non-citizen being considered for visa refusal;

12.4 Impact on Australian business interests
(1)Impact on Australian business interests if the non-citizen’s visa application is refused, noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project or delivery of an important service in Australia.

[2017] AATA 412

4 April 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Remedies

Statutory Construction

Date(s) of hearing:	23 March 2017
Counsel for the Applicant:	Mr N Poynder
Solicitors for the Applicant:	Kinslor Prince Lawyers
Counsel for the Respondent:	Mr T Reilly
Solicitors for the Respondent:	Sparke Helmore