1913373 (Migration)

1913373 (Migration) [2020] AATA 6044 (4 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1913373
MEMBER:Kate Millar
DATE:4 December 2020
PLACE OF DECISION: Adelaide
DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:
·cl.101.222 of Schedule 2 to the Regulations.

Statement made on 04 December 2020 at 2:43pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) visa – review applicant has been convicted of a registrable offence – more than five years after the end of the sentence – risk of reoffending is low – best interest of children – sponsorship is approved – decision under review remitted

LEGISLATION
Community Protection (Offender Reporting) Act 2004 (WA), ss 9, 11; Schedule 2
Customs Act 1901 (Cth), s 233BAB
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.20KB; Schedule 2, cl 101.222

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Mr [A] is a citizen of the Philippines, who is now a permanent resident of Australia. In 2009, Mr [A] entered Australia carrying a hard drive that contained child pornography and other violent material. [Later in] 2009 he was convicted of intentionally importing tier 2 goods (depicting child pornography), and [also] he was convicted of importing a prohibited hard drive containing video images.
Mr [A] has two children, [Child 1] who is [age] years old and [Child 2] who is [age]. [Child 1] and [Child 2] currently live with his parents and a nephew in the Philippines. His wife Mrs [B] was granted a visa as the spouse of Mr [A] and migrated to Australia in January 2014. Mr [A] wants to sponsor his children to come to Australia, and [Child 1] and [Child 2] have applied for Child (Migrant)(Subclass 101) visas.
[Child 2]’s visa application was refused by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs as the delegate found they did not meet the requirement to be sponsored. This was because Mr [A] has been convicted of a registrable offence, which prevents approval as a sponsor unless a certain period has passed from the end of the person’s sentence and there are compelling circumstances affecting the sponsor or the visa applicant. The delegate declined to exercise a discretion to approve the sponsorship, in summary because the delegate did not consider there were compelling circumstances affecting the sponsor or the applicant.
Mr [A] acknowledges he was convicted of a registrable offence, but states this relates to him bringing in a hard drive which, while he was aware contained pornography, he was not contained child pornography. He submits there are compelling circumstances affecting himself, his wife and his children that mean the sponsorship should be approved.
Mr [A] appeared before the Tribunal on 4 November 2020 to give evidence and present arguments and was represented in relation to the review by his registered migration agent. The Tribunal also received oral evidence from Mrs [B] and Dr [C], who provided a psychology report regarding Mr [A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
This decision is about [Child 2]’s visa application, and the circumstances for [Child 2] and [Child 1] are considered separately below. However as [Child 2]’s circumstances, in particular the living arrangements and effect on Mr [A] are the same for both [Child 2] and [Child 1], and there is the additional consideration of not separating the siblings unless it is in their best interests, these reasons mirror those in the decision on [Child 1]’s visa application.
BACKGROUND
Mr [A] worked in [Country 1] from 2002 until 2008. At this time, he was in a relationship with his wife, but they were not yet married. He lived in company accommodation with 12 other Filipino workers. Mr [A] said a colleague asked if he would like some pornography and showed him clips of adult pornography. He agreed, and his colleague downloaded material onto his hard drive. The material downloaded also included violent material, including a beheading, that was subject to other charges in the Magistrates Court.
Mr [A] returned to the Philippines and married [Mrs B] [in] April 2008, then returned to [Country 1] for a few weeks. He returned to the Philippines in June 2008 and moved to Australia in July 2008 on a Subclass 457 visa. His daughter [Child 1] was born on [date]. Mr [A] visited the Philippines in December 2008 and May 2009.
Mr [A] brought the hard drive containing the pornography and violent material with him when he returned to Australia from the Philippines in 2009. This was because he was renovating a house in the Philippines and he wanted to work on the drawings for the house while he was in Australia. The drawings were copied onto the hard drive, which he said was the only hard drive he owned at the time.
Mr [A] said he had watched some, but not all, of the material and was not aware of what was on the disk. Mr [A] states that while he knew there was pornography on the hard drive he brought into Australia, he did not know it contained child pornography. He said he was aware of was illegal to have pornography in [Country 1], but it is readily available in the Philippines.
[In] 2009 he was convicted of intentionally importing tier 2 goods (depicting child pornography), and [later] he was convicted of importing a prohibited hard drive containing video images. He said he pleaded guilty to the offence as he has advised by his lawyer that because he had it in his possession, it was irrelevant whether he knew it contained child pornography.
[Child 2] was born on [date].
Mrs [A] applied for and was granted a Partner visa and migrated to Australia in 2014. [Child 1] and [Child 2] were included on this application, however their applications were withdrawn when Mr and Mrs [A] became aware that there had to be a period of five years form the end of Mr [A]’s sentence before the Minister could consider whether the approve the sponsorship.
Mr [A] has now been in Australia for 12 years and has been a permanent resident since 2012. Mrs [A] has now been in Australia for four years. They have bought a house to prepare for their children coming to Australia.
Mr and Mrs [A] said they generally visit their children twice a year but cannot currently visit due to the travel restrictions as a result of COVID.
CONSIDERATION OF CLAIMS AND EVIDENCE
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 April 2019 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).
[Child 1] and [Child 2] applied for the visas on 19 May 2016. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).
The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The criteria for the visa include cl.101.222 which requires the sponsorship in cl.101.212 has been approved by the Minister and is still in force. Clause 101.212, as it applies in this case, requires that the applicant is sponsored by a parent who has turned 18 years of age and holds a permanent visa.
Regulation 1.20KB limits the approval of sponsorship for child, partner and prospective marriage visas, and applies to Child (Migrant) Class AH) visas (r.1.20KB(1)(a)).
Regulation 1.20KB(3) requires, subject to later provisions, that the Minister refuse approval of the sponsorship of the applicants for the visa if a sponsor has been convicted of a registrable offence unless none of the applicants is under 18 at the time of the application, or the conviction has been quashed or otherwise set aside.
The term “registrable offence” is defined in r.1.20KB(13) and includes offences that are reportable offences under the Community Protection (Offender Reporting) Act 2004 (WA). Sections 9 and 11, and Schedule 2 of the Community Protection (Offender Reporting) Act 2004 (WA) lists an offence under s.233BAB of the Customs Act 1901 (Cth) as a reportable offence. Mr [A] was convicted of an offence under s.233BAB of the Customs Act 1901 (Cth). It follows he has been convicted of a registrable offence. This has not been quashed or set aside, and [Child 1] and [Child 2] are under 18 years of age.
It follows that the Minister must refuse to approve the sponsorship unless an exception applies.
Regulation 1.20KB(4) states that despite r.1.20KB(3) the Minister may decide to approve the sponsorship if:
(a) the sponsor completed the sentence imposed for the registrable offence (including any period of release under recognisance, parole, or licence) more than 5 years before the date of the application for approval of the sponsorship; and
(b) the sponsor has not been charged with a registrable offence since the sponsor completed that sentence; and
(c) there are compelling circumstances affecting the sponsor or the applicant.
For Mr [A] to be approved as a sponsor, and for cl.101.212 to be met, each of these requirements must be addressed.
Did Mr [A] complete the sentence more than 5 years before the date of application?
Mr [A]’s National Police Certificate shows that [in] 2009 he was sentenced in the District Court to 8 months imprisonment and was released on recognizance to be of good behaviour for 12 months. He was fined $4,000. [Also in] 2009 he was sentenced in the Magistrates Court to a fine of $3,000 for an offence that is not a registrable offence.
Mr [A] has paid the fines, and the good behaviour term ceased [in] 2010.
The visa applications were made on 16 May 2016, more than five years after the end of the sentence, and r.1.20KB(3)(a) is met.
Has he been charged with a registrable offence since he completed the sentence?
Mr [A] obtained a current National Police Certificate for Australia and a clearance from the National Bureau of Investigation in the Philippines. Neither record shows any other offence committed by Mr [A] and r.1.20KB(3)(b) is met.
Are there compelling circumstances affecting Mr [A], [Child 1] or [Child 2]?
The central issue in this matter is whether there are compelling circumstances affecting the sponsor or the applicants.
The Tribunal has considered the risk of reoffending, the current care arrangements for the children, Mr [A]’s health, the Convention on the Rights of the Child, and other factors raised by Mr [A] and Mrs [A] regarding compelling circumstances affecting Mr [A] or the children.
Mr [A] relies on:
·     The nature and seriousness of the conduct
·     Number and frequency of offending
·     Risk of reoffending
·     Arrangements for the care of the children in Australia
·     Australia’s obligations under the Convention on the Rights of the Child (Convention).
While the focus on the safety of the children in relation to the requirements of cl.1.20KB is necessary, merely not posing a risk to the children is, in the view of the Tribunal, insufficient to itself amount to compelling circumstances affecting the sponsor or the child.
Risk of reoffending
His Honour Chief Judge [D] sentenced Mr [A] for importing items depicting child pornography [in] 2009. He found the hard drive Mr [A] brought into Australia contained four videos of child pornography, but the quality and depravity of the videos was not of the highest order. The videos were found to be very short, but clearly involved the abuse and exploitation of children. Chief Judge [D] stated he accepted that Mr [A]’s knowledge of the images was limited, but he did know his hard drive contained child pornography. Chief Judge [D] did not accept Mr [A] was totally unaware of Australia’s pornography laws as claimed, and stated that the reports he had received suggest Mr [A] now has an empathy for the victims of the crime, being the children who were abused and exploited, and expressed this empathy by comparing it with how he would feel if his daughter was subject to that sort of abuse.
Mr [A] took issue with comments of the sentencing judge about his knowledge of what was contained on the hard drive. He said he did not contribute to the proceedings regarding sentencing, and his only contribution to the proceedings was to plead guilty. He states the submissions of his lawyer were not consistent with his instructions about his actual knowledge of what was on the hard drive. His migration agent states the transcript of the proceedings shows that Mr [A] maintained that he did not have actual knowledge of the child pornography but was reckless at the contents of the hard drive.
The transcript shows that Mr [A]’s lawyer stated he was aware that the hard drive contained child pornography. The transcript also shows the judge found Mr [A] did know his hard drive contained child pornography however does state he had a limited knowledge of the full extent of the material.
The transcript of the sentencing hearing includes reference to reports that are not before the Tribunal. These additional reports may have provided further clarity about Mr [A]’s knowledge of what was on the hard drive. In the absence of material that was before the Court the Tribunal is not inclined to go behind the sentencing remarks. It finds Mr [A] had limited knowledge of what was contained on the hard drive and was aware it contained pornography. It places significantly less weight on the circumstances of the offence than on the assessment of the risk he may pose in the future if his children come to Australia.
Mr [A] has attended sessions with Dr [C], a registered psychologist. Dr [C] provided reports dated 2 October 2018 and 23 October 2020 and gave oral evidence to the Tribunal. Dr [C] based his report of 2 October 2018 on a series of interviews totalling five and a half hours with Mr [A], and one interview of 45 minutes with Mrs [A]. Dr [C]’s assessment is based on his experience and understanding of sex offences rather than any formal testing.
Dr [C] acknowledged his information was based on Mr [A]’s self-report. On being asked how he assessed, for example, that Mr [A] was not aware of the child pornography material on the hard drive, Dr [C] stated Mr [A] was not aware. Dr [C] then stated Mr [A] was aware there were pictures with very young people, and Mr [A] had seen these pictures but did not delete them. Dr [C] drew a distinction between pornography depicting children and pornography involving young people pretending to be children, but it was unclear how this applied to Mr [A]. Dr [C] reiterated Mr [A] brought child pornography into Australia accidentally. He said it is difficult to understand the ages of the children, and Mr [A] need to have viewed the videos several times to determine the ages of the children. Mr [A] told Dr [C] he did not view all the material but was aware that the pictures contained very young people. Dr [C] said pictures may show young models in school uniform but who may be 18 years of age On being asked how he distinguished between children and young people, Dr [C] said this was a legal issue and that a child was from birth up to 16 years. Dr [C] said Mr [A] said young children there, and he spoke about some clips which his colleague put on the hard drive that he was not interested in, but he had seen them and had not deleted them.
Dr [C] expressed a view that it would further the well-being and the welfare of the children to come to Australia but acknowledged he had not interviewed the children. Dr [C]’s assessment that Mr [A] was not a risk of sexual offending towards children or adults, or re-offending by viewing, storing or utilising child pornography or any sort of illegal pornography or indecent or abhorrent material.
Dr [C]’s report expressed the self-report of Mr [A] as facts, for example that he did not know the hard drive contained child pornography, and said Mr [A] was aware of some very young people on the hard drive and aware of some violent depictions but was not aware these were seen as child pornographic material under Australian law.
The Tribunal places little weight on Dr [C]’s report as it contains a self-report of Mr [A], albeit assessed with Dr [C]’s experience and expertise. The Tribunal was cautious about aspects of the report that reported as facts matters which relied on Mr [A]’s knowledge or intention. It also had reservations about the conclusion of Dr [C], which were expressed in absolute terms that he had no risk of reoffending without taking into account the risk of a previous offence of this nature, and with no recourse to standard test on assessing this risk.
Dr [C]’s further report of 23 October 2020 was based on one appointment with Mr [A] and his migration agent, and an email communication with Mrs [A] after this appointment. This second report states Mr [A] will ensure their children attend and participate in programs that support the care and protection of children and are themselves keen to attend parenting programs to which Dr [C] is willing to refer them.
The Tribunal places little weight on Mr [A]’s future intentions to undertake course or rehabilitation, as he has had ample time to undertake these courses up to the date of the hearing. There were little specific details about the courses he would undertake, and no date of commencing a course. Mr [A] acknowledged at hearing he had not looked at any programs before the time of the hearing. The Tribunal accepts Mr [A] is willing to undertake these programs but finds he has not made any specific plans to date.
The sentencing judge was satisfied that Mr [A] was genuinely remorseful and that he is unlikely to reoffend.
On the basis of the findings of the sentencing judge, and to the extent that is supported at the time of this decision by Dr [C]’s assessment, the Tribunal accepts that Mr [A]’s risk of reoffending is low.
The current care arrangements for the children
[Child 1] and [Child 2] are currently being cared for by Mr [A]’s parents. His father is now [age] years old and his mother is [age]. As they are getting older, Mr [A] says they cannot cope with lessons for the children, who are being schooled at home as the schools are shut due to COVID. Mr [A] said his parent do not manage discipline for the children as they would like.
His children share a room with the Philippines, and his mother sleeps in the same room, as is the custom in the Philippines. Mr [A] said his daughter now wants her own room and does not feel comfortable discussing changes in her life with her grandparents and would prefer to talk to her mother.
Mr [A] renovated the family home house with his brother. The house has five bedrooms, with one allocated to his father, one to his mother, one to his brother, and one to his nephew. The children sleep in the remaining room. As his brother works overseas, Mr [A] was asked why the children did not use that room, and whether it was a choice that they shared a room. Mr [A] said his brother shared the expenses when he renovated the family home, and at the time the decision was made about sharing rooms the children were still young and they did not think the children would be unable to come to Australia. The Tribunal finds that the children share a room and their grandmother sleeps with them due to the family arrangements and cultural norms rather than necessity.

Mr [A]’s nephew who is [age] years old also lives in the household. His nephew recently finished a civil engineering degree and is waiting to sit his board exams which were deferred from May to November because of COVID. Once his exams are completed, he will look for a job and will most likely move away for work. Mr [A] said his nephew does the shopping and provides a great deal of support but does not want to spend lengthy periods of time looking after their children.
Mr [A] said his parents assist with homework to the extent they are able, but that he wants to be able to assist them more with maths, in particular [Child 1] who is finding maths more difficult. He currently does this during video calls. He also refers to current restrictions in the Philippines that mean people over 65 or under 15 are unable to leave home, and this had added to the need for assistance with schoolwork and supervision of activities such as video games while at home.
Mr [A]’s sister and her children live in the same compound as his parents and children. His sister has three children who are [age] years old. Her husband works in another town and returns on weekends. The families share meals approximately once a week. Mr [A] said his sister does not help with his children as she is busy with her own children. His sister’s children go to the same school and his father takes all the children to school. This has become more difficult recently as his father is no longer confident driving.
Both of Mr [A]’s children were born when he was living out of the Philippines. The longest period he has lived with them is 6 weeks. Mr [A] and his wife video call the children every day and provided a sample of their communication with the children.
[Child 2] is now [age]years old, and is doing well at school, however they are concerned he plays a lot of video games. He doesn’t want to be disturbed when he is playing and won’t listen to his grandparents. Both Mr [A] and Mrs [A] said [Child 2] would benefit from having his parents involved in his discipline, particularly around his use of video games.
Mrs [A] said [Child 1] is now older and needs more moral support from her parents, and as parents they want the best for their children. Mrs [A] said there are some things her daughter only wants to discuss with her parents. Mrs [A] acknowledged she could talk to her aunt or cousins that live in the same compound. Mrs [A] said [Child 1] needs more help with her studies and that they are limited to the assistance they can provide over video calls.
Mrs [A] said both children are housebound and learning online due to COVID, so it would better if they were in Australia so they can support their schoolwork and attend school.
The Tribunal finds the children are safe and have shelter, accommodation and the care of Mr [A]’s parents. They attend the same school as his sister’s children and live in the compound with their aunt and cousins. The Tribunal is satisfied they live in a caring and supportive environment with several extended family members who pool together tasks such as taking the children to school. The children have older cousins and an uncle who can assist with schoolwork and their parents assist by videocalls.
The Tribunal accepts that it would benefit the children to be cared for by their parents, and to have the assistance of their parents in supervising their schoolwork and discipline.
Mr [A]’s health
If the visas are not granted, Mrs [A] will return to the Philippines to care for their children. Mr [A] said he will remain in Australia as he wants to access health services in Australia. Mr [A] suffered [an illness] in September 2019 and underwent [surgery] on 4 October 2019. He is under the care of a [specialist] who provide a written report that Mr [A] is doing well, and that to keep well he needs to engage in his health care with a multidisciplinary team and have regular reviews with his [specialist]. His [specialist] further reports there is a chance Mr [A] will have further complications of [his] disease, and it would be preferable that he have access to tertiary level care and that it is in Mr [A]’s best interests that he has access in a timely manner to an appropriate healthcare system.
Mr [A] says his family home [is] in La Union Province which is 270 km away from Manilla. There is a small hospital 7km from where he lives, and a private hospital 63 km from his home. He states he is unable to obtain private health insurance in the Philippines due to his pre-existing health conditions. This contrasts a little with his evidence at hearing where he said that he prefers the health system in Australia and considers it better than that of the Philippines.
Mr [A] and Mrs [A] both state that at [age] years of age it would be difficult for Mr [A] to get a job in the Philippines and he would not get a job where he could earn the same as his current employment.
Mr [A] said the combination of the better health system in Australia, the reduced cost and accessibility of these health services together with his ability to earn a higher income mean that regardless of this application he will remain in Australia.
The Tribunal finds that if the visas are refused, Mrs [A] will return to the Philippines and Mr [A] will remain in Australia as a result of his health and to financially support the family and will travel to the Philippines approximately every 6 months to see his wife and children.
Convention on the Rights of the Child
Article 3(1) of the Convention states that in all actions concerning children, the best interests of the child shall be the primary consideration.
Mr [A] said if the visas are not granted, his children would be growing up without their parents. The children have not experienced living as a family with both parents, and they both want this for their children. They also want them to have the health, education and job prospects that result from living in Australia.
Mr and Mrs [A] have applied for tourist visas for [Child 1] and [Child 2] however these were refused as a result of Mr [A]’s conviction. This means that the children are effectively unable to visit Australia, and to see the children Mr and Mrs [A] will need to return to the Philippines. Mr [A] is at low risk of reoffending, and the Tribunal accepts that it is in the best interests of [Child 1] and [Child 2] to be reunited with their parents. Mrs [A] will return to the Philippines if the children are unable to obtain a visa and will be reunited with the children
While Mr [A] could choose to return to the Philippines the Tribunal has found that he will not, and that he will remain in Australia to access health services and to support the family financially.
It is claimed in submissions that the separation from their parents has had a psychological impact on the children and psychological problems have been detected. This claim is not supported by direct oral evidence from Mr or Mrs [A], other than as issues common to raising children such as respect for their grandparents and time spent on video games. It is also not supported by evidence of any assessment of the children or any treatment required by the children. As a result, the Tribunal places little weight on the claim that psychological problems have been detected.
The Tribunal accepts that the best interests of [Child 1] and [Child 2] are to live in Australia and access the health and education system in Australia. It is in the best interests of the children to have access to their parents and they would benefit from their assistance with their developmental needs and education. There are no matters before the Tribunal that mean that the best interests of the children should not be treated as the primary consideration in this case.
CONCLUSION
This matter calls for a delicate balancing of factors. The circumstances of the children in the Philippines is that they have a caring and supportive environment in which they can access education. The Tribunal does not find their circumstances in the Philippines compelling. It also does not find the effect on Mr [A] compelling. He would have a difficult choice to make if his children cannot come to Australia and has stated he will remain in Australia.
However, the factor that ultimately results in the Tribunal being satisfied there are compelling circumstances affecting [Child 1] and [Child 2] are the best interests of the children in being reunited as a family unit. The Convention requires the best interest of the children to be the primary consideration, and in the circumstances of this particular case, the Tribunal does not see a reason not to treat this as a primary consideration or that it is outweighed by other considerations.
As a result, the Tribunal finds that r.1.20KB(4)(c) is met. As all the requirements in r.1.20KB(4) are met the Minister, and the Tribunal in the place of the Minister may approve the sponsorship.
The Tribunal as decided it is in the bests interests of the children that the sponsorship is approved under r.1.20KB(4), and as a result the sponsorship is approved. It follows that the applicants meet cl.101.222 of Schedule 2 of the Regulations, and the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.
DECISION
The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:
·cl.101.222 of Schedule 2 to the Regulations.
Kate Millar
Senior Member

[2020] AATA 6044

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies