Tribunal overrules on visa for criminal
The Administrative Appeals Tribunal has overturned a federal government decision to refuse an Australian visa for a Palestinian man once jailed for conspiracy to “cause intentional death” and who belongs to a terrorist organisation, after the deputy president of the tribunal raised doubts about the fairness of the Israeli military court system.
Despite accepting that the 30-year-old man from the West Bank in the Palestinian territories had “serious convictions” and had lied about them on his application for a partner visa to come to Australia, the tribunal claimed it was satisfied he had in fact not engaged in the “improper conduct” as that alleged in the Israeli court.
The decision handed down on September 6 set aside the Department of Immigration and Border Protection denial of a visa so the man could live in Australia with his Australianborn wife and their two-year-old daughter on the basis that the welfare of children involved outweighed any risk to the Australian community.
The ruling — in which the tribunal claimed it had the discretion to examine the circumstances behind convictions, in this case one made in a foreign jurisdiction — is one of a string of adverse rulings for the government on visa cancellations and refusals made under delegation of Immigration and Border Protection Minister Peter Dutton.
Although the Palestinian’s case was determined in the tribunal’s general division, official records reveal the AAT is setting aside a large number of visa refusals or cancellations, most of which are heard in the tribunal’s Migration and Refugee Division.
Almost one-third of all refusals and cancellations made by the Department of Immigration have been set aside or remitted by the tribunal’s MRD in the past three years.
In 2014-15, 6341 visa refusals or cancellations — or 29 per cent — were either set aside, remitted or varied by the tribunal’s MRD after being challenged by the applicant. This went to 32 per cent in 2015-16 and 31 per cent in the past year.
Mr Dutton has ministerial discretion to overrule the decisions of the AAT and has exercised this power on a number of occasions in relation to visa cancellations.
In his 116-page ruling on the visa refusal of the Palestinian man, referred to in the ruling as Mr Khalil, tribunal deputy president James Constance rejected the government’s argument that the court had no role in examining the circumstances behind a conviction of an applicant.
This was demonstrated in Mr Constance’s ruling over Mr Khalil’s application for a partner visa. Mr Constance cited concerns about the fairness of procedures of the Israeli military court.
He also referred to the state of Palestine in his ruling — a status not recognised by the Australian government.
Mr Khalil applied for a partner visa in 2013, shortly after marrying an Australian woman, Ms Trikilis, in the West Bank.
The tribunal acknowledged that Mr Khalil had never visited Australia and that the couple
had a daughter after living together for a total of seven months.
The appeal against the decision to deny Mr Khalil a visa was lodged by Ms Trikilis.
In making his ruling, Mr Constance said the welfare of the children (Ms Trikilis also has a 15year-old son), access to medical treatment for a significant longterm illness and the poor outcome for the family should they be forced to live in the Palestinian territories outweighed other considerations.
In evidence provided to the tribunal, Mr Khalil denied all the charges against him that led to his conviction in 2006 when he was 19 years old.
He said he had been beaten and coerced into pleading guilty.
The Israeli Military Court, a complete justice system set up to try only Palestinians, recognised that Mr Khalil had a prior clean record.
Mr Constance said this evidence by Mr Khalil should be accepted as the minister had not challenged Mr Khalil on any aspect of his evidence in relation to the circumstance of his arrest, his imprisonment, his decision to enter a plea of guilty or his conviction.
He claimed that the minister was “put on notice” before the hearing that the tribunal would look behind the fact of Mr Khalil’s conviction “to the reality of the events which occurred”.
“For this reason, in fairness to Mr Khalil his evidence in regard to the circumstances should be accepted,” Mr Constance said in his ruling.
Mr Khalil had been charged with making and planning to plant a bomb, charges that were later not pursued by the Israeli Military Court.
Mr Khalil agreed to a plea bargain for conspiracy to cause intentional death. He was jailed for 34 months.
“Nevertheless it is a very serious conviction and one which would normally give rise to a definite expectation in the community that Mr Khalil would not be allowed to come to Australia,” Mr Constance said.
“However, for the reasons I have already stated, I am satisfied that the interests of the children and the impact on Ms Trikilis are such as to outweigh other considerations, including those relating to the protection of the Australian community.”
Referring to the original visa application, Mr Constance acknowledged Mr Khalil had “demonstrated a willingness to breach the law to achieve his own ends”.
The Department of Immigration and Border Protection did not dispute the argument that the welfare of the children weighed heavily in favour of granting a visa, but refused the visa on character grounds because of his conviction.
The tribunal noted that coun- sel for the minister had argued that evidence in relation to the circumstances of Mr Khalil’s conviction was irrelevant and should be disregarded.
“It is not open to the tribunal to impugn either the sentence or the essential elements of the offence which gave rise to the conviction that enlivened the respondent’s power to refuse the visa,” the government argued.
However, Mr Constance said that the government had been put on notice before the hearing that the tribunal was “being asked to look behind the fact of (Mr Khalil’s) conviction to the reality of the events which occurred”.
“I also found support for the conclusion I have reached in the material provided by the minister as to the nature of the legal process in the Israeli Military Courts at the time Mr Khalil was convicted,” Mr Constance concluded.
‘I am satisfied that the interests of the children … outweigh other considerations, including those relating to the protection of the Australian community JAMES CONSTANCE ADMINISTRATIVE APPEALS TRIBUNAL DEPUTY PRESIDENT
“While I am unable to verify the accuracy of the material, and accepting that it may be influenced by the political views of the various authors, it does indicate that there are widely held concerns as to the fairness of the procedures in the Military Courts.
“Unfortunately, there is very little evidence in the Military Court’s records to indicate the circumstances of the offence of conspiring to cause intentional death,” the ruling added.
“In addition, I have taken into account that the offences were committed 11 years ago and Mr Khalil has not committed any offence since.
“He now has a family to care for and he should realise that any further offending will put him at serious risk of having his visa cancelled.”
The tribunal argued that the interests of the children weighed “very heavily in favour of the family being together in Australia”.
“Both children will benefit from not being exposed to the risks of war associated with living on the West Bank,” Mr Constance said.
“Having considered the above matters, I have come to the conclusion that there will be minimal, if any, risk to the Australian community if Mr Khalil is permitted to reside in Australia.”
The Department of Immigration refused to comment on the case.