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.

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