1926217 (Migration)

[2019] AATA 6141

1926217 (Migration) [2019] AATA 6141 (19 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1926217

MEMBER:Mireya Hyland

DATE:19 November 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 19 November 2019 at 5:08pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) – Subclass 050 (Bridging (General)) – criminal convictions – convicted of sexual offences – lack of rehabilitation – risk of re-offending – mental health in prison – disregard for victims – failure to seek counselling – offences escalated over time – crimes of convenience and opportunity – supportive relationships available – no history of non-compliance with immigration law – not satisfied he will abide by conditions – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 73, 269, 351, 359A
Migration Regulations 1994 (Cth), Schedule 2 cls 050.211, 050.223, 050.618

CASES

Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant, [the Applicant], a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act) and a decision made by an authorised officer relating to requiring a security under s.269 of the Act.

2. [The Applicant] applied for the visa on 11 September 2019. At that time Class WE contained two subclasses: Subclasses 050 and 051. In the present case, [the Applicant] is seeking to satisfy the criteria for the grant of a Subclass 050 visa, which are set out in Part 050 of Schedule 2 to the Migration Regulations (the Regulations). Relevant to this matter, the primary criteria include cl.050.223. The decision to refuse to grant the visa was made on 16 September 2019 on the basis that the delegate was not satisfied that [the Applicant] will abide by the conditions on the Bridging E visa and the imposition of a security, regardless of amount, will not secure compliance.

3. [The Applicant] appeared before the Tribunal on 26 September 2019. That hearing was adjourned to accommodate [the Applicant’s] request for additional time to respond to adverse information about his criminal convictions which were then put to him under s.359A of the Act. The hearing before the Tribunal resumed on 9 October 2019 for [the Applicant] to give evidence and present arguments. The Tribunal also received oral evidence from [the Applicant’s] cousin, [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages, although [the Applicant] gave much of his evidence in English. [The Applicant] was represented in relation to the review after the Tribunal adjourned the hearing. The representative attended the resumed hearing.

4. The issue in this case is whether [the Applicant] will comply with Condition 8564, that the holder must not engage in criminal conduct. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. [In] June 2011, [the Applicant] arrived in Australia as the holder of a Partner (Class UF) Subclass 309 visa. On 2 January 2013, his application for his permanent Partner (Class BC) Subclass 100 visa was refused and he was granted a Bridging (Class WA) Subclass 010 visa (BVA). The Subclass 100 visa was refused on the basis that [the Applicant’s] wife, [Ms B], had withdrawn her sponsorship because the relationship had ceased. [The Applicant] unsuccessfully sought both Tribunal and judicial review of the decision to refuse to grant him a permanent partner visa, and a request for ministerial intervention under s.351 of the Act was ‘not referred’. On 14 November 2016, [the Applicant] applied for a Protection (Class XA) Subclass 866 visa (protection visa) which he withdrew on 19 December 2016. On 11 September 2019, [the Applicant] lodged another protection visa application. On 11 September 2019, the Department of Home Affairs (DOHA) refused to grant [the Applicant] a protection visa and on 14 October 2019 he made an application for review of that decision. That matter is currently before the Tribunal, differently constituted.

6. [The Applicant] is a hairdresser who ran a hair salon business out of [a location]. He owns this premises which is currently rented and managed by [Company 1]. [The Applicant] receives a net income from [Company 1] of around [amount] to [amount] per month, or between January and July 2019 [amount] after expenses.

7. In 2013 [the Applicant] was charged with serious sexual assaults associated with his work at his hair salon, including assault with act of indecency, common assault, and sexual intercourse without consent. He received bail on a surety of [amount] and certain living and reporting conditions. While on bail he lived with his sister and brother-in-law, [Mr and Mrs C], at [Address 1]. The Tribunal notes that [the Applicant] has provided evidence that the bail was refunded indicating that he complied with those conditions. However, [the Applicant] was taken into custody in November 2014 after a further allegation of indecent assault at [Address 1]. He remained on remand during his four trials and [in] November 2017 was sentenced to an aggregate term of 6 years for 10 counts of ‘assault with act of indecency; take/detain person with intent to obtain advantage; and stalk/intimidate intend fear physical etc harm (personal)’ commencing [in] November 2014. [The Applicant] was released on parole in [date] after serving four years and nine months. He was then taken into immigration detention.

8. [The Applicant] told the Tribunal that his mother, [Mrs D], arrived in Sydney from Lebanon about 12 months ago to see [the Applicant] while he was still incarcerated. [Mrs D], who suffered a [medical condition] in 2016 resulting in [medical issues]. Because her deteriorating health meant that she was unable to visit her son in jail or detention they have been unable to maintain their relationship. After the incidental discovery of [Medical Condition 1] during an MRI and CT [scan], [Mrs D] had [another medical procedure] performed [in] September 2019. Her [specialist] concluded that the [Medical Condition 1] is treatable and [in] October 2019 she underwent surgery. [The Applicant] has expressed a need to get his mother’s ‘blessing and forgiveness’. Also, he claims his mother, who is living with his sister, requires care after her surgery, but both [Mr and Mrs C] work full-time. He wants to be able to fill that gap and care for her.

9. At the hearing and in other evidence, [the Applicant] has claimed he wants to spend more time on his religious life to explore his Catholic faith more fully. A letter from the [Location 1] Chaplain, [named], dated 24 April 2017 states that he expressed a desire to pursue his faith further when released from prison. [The Applicant] claims he can only do this if he is granted a visa and released from detention.

   Whether the Applicant Will Abide by Conditions - cl.050.223

10. Clause 050.223 requires that the Tribunal is satisfied that at the time of the decision, if a bridging visa is granted, the applicant will abide by any conditions imposed on that visa. Conditions that may be imposed on a BVE are provided for in Division 050.6 of Part 050 in Schedule 2 and set out in Schedule 8 to the Regulations.

11. When considering cl.050.223, the Tribunal must consider which conditions, if any, should be imposed and whether it is satisfied that the applicant would abide by those conditions. In deciding the question of whether the applicant would abide by conditions imposed, the Tribunal is to consider the likely conduct of the applicant. In that context, relevant considerations may include the applicant’s past immigration history, in particular any previous breaches of immigration laws, the significance of the migration laws that were breached, the wilfulness with which those laws had been breached, whether there were any mitigating circumstances justifying their breach, and whether the applicant had shown any contrition for his or her unlawful conduct.[1]

    [1] Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289 at [15]-[16].

12. If the Tribunal is satisfied that the applicant will only abide by the conditions if given a financial incentive to do so, it is necessary to consider the security decision made pursuant to s.269 of the Act.[2] Conversely, if not satisfied that an applicant would abide by the conditions attached to a bridging visa even where there is a financial incentive to do so, the occasion for the imposition of a security does not arise.[3]

    [2] Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289 at [10].

    [3] Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289 per Finklestein J at [21]-[22]; Liu v MIAC [2008] FMCA 725 at [33] and [37].

13. At the time of the visa application, the applicant must meet one of the alternatives set out in cl.050.212(2)-(9). Clause 050.221 requires the applicant to continue to satisfy the requirements of cl.050.211 at the time of decision. Subclause 050.212(3) is met if the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined. ‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s.5(1) of the Act. An application is ‘finally determined’ when it is no longer subject to merits review under Part 5 or Part 7 of the Act, or any prescribed period within which a merits review application must be submitted has passed without an application being made: s.5(9) of the Act.

14. [The Applicant] made a valid protection visa application on 11 September 2019 which has not been finally determined. Therefore, at the times of application and decision he meets cl.050.212(3) of the Regulations.

    What Conditions Apply to a Visa Granted to an Applicant Who Meets cl.050.212(3)

15. In determining what conditions should be imposed on [the Applicant], the Tribunal has considered, among other things, his criminal history and circumstances. The purpose of visa conditions is to ensure that the policy intent of the migration program is reflected in the behaviour of visa holders. Clause 050.618 states that in addition to any other condition imposed by another provision of Division 050.6, Condition 8564 may be imposed. Condition 8564 states the holder must not engage in criminal conduct. In this case, the Tribunal considers that this condition should be imposed.

    Condition 8564 – Must Not Engage in Criminal Conduct

16. [The Applicant] has a serious criminal history so the Tribunal’s decision turns on whether he will reoffend if he is granted the visa and released from detention. The Tribunal finds that the two main factors in deciding if he will comply with Condition 8564 is his risk of recidivism and the extent of his rehabilitation since being convicted and imprisoned for serious criminal conduct.

    [The Applicant’s] Criminal History

17. The Tribunal has before it the sentencing judgments of [Judge E] and [Judge F]. [In] November 2016, [the Applicant] was convicted by Jury of eight counts of indecent assault. [In] December 2016, he was convicted by Judge alone on one count of indecent assault. [In] November 2017, [Judge E] sentenced him to imprisonment for four years and nine months on those nine counts of indecent assault against four victims. [In] September 2017, [the Applicant] was convicted by jury of seven counts of indecent assault, one count of detain to gain advantage, and one count of intimidation. [In] September 2017, he was convicted by jury of three counts of indecent assault. [In] November 2017, [Judge F] sentenced him to imprisonment for six years for those 12 offences against five victims, in aggregate with the sentence brought down by [Judge E].

18. The following findings of fact were made regarding the offenses set out in [Judge F’s] sentencing judgment arising from the trial by jury, being offenses committed against five women at [the Applicant’s] hair salon between [February] 2013 and [May] 2013:

    ·   [In] February 2013, [one client] attended the salon. While she was at the washbasin, [details deleted].

    ·   [In] February and [in] March 2013, [another client] attended the salon. On the second occasion, when she sat in the cutting chair and [the Applicant] pulled down her hair, he deliberately grazed the side of her left breast. He offered her a massage and took her to the massage room where he took off her clothes. [The Applicant] massaged her [details deleted].

    ·   [In] February 2013, [Ms G] attended the salon. [The Applicant] told her [details deleted]. Then while colouring her hair he attempted to [deleted]. Later when rinsing her hair he [deleted]. While having the toner washed out of her hair [the Applicant] deliberately [deleted]. When [Ms G] believed he had locked the door and kept her from leaving, he came and stood very close to her face which made [Ms G] feel intimidated and extremely uneasy.

    ·   [In] February 2013, [another client] attended the salon. [The Applicant] put a treatment on her hair and told her to go into the massage room. He then came in and offered her a massage. He took off her clothes, sat on her buttocks, and bit and kissed her back. [Deleted].

    ·   [In] May 2013, [Ms H] attended the salon. After washing the colour out of her hair, [the Applicant] massaged [Ms H’s] neck and shoulders and said, ‘Your neck and shoulders are stiff, I am going to give you a free neck and shoulder massage’. He took her to the massage room and helped [Ms H] onto the bed where she lay face down fully clothed. He then took off her blouse. She did not want him to do this, but did not say anything because she was scared. [The Applicant] unhooked [Ms H’s] bra and took it off, then began massaging her back and shoulders. While massaging [Ms H’s] left shoulder, he [deleted]. [Ms H] did not consent to this behaviour.

19. The following findings of fact were made regarding the offenses set out in [Judge E’s] sentencing judgment arising from the trial by jury, being offenses committed against three women at the hair salon between [March] 2013 and [May] 2013:

    ·   [In] March 2013, [Ms I] attended the hair salon at around 6:15pm. [The Applicant] was washing [Ms I’s] hair after the last customer had left the salon. While standing in front of her he leaned down and put his face very close to her, causing her to raise her arms and then grabbed her by the hair. Later as he stood in the front doorway he touched [Ms I’s] neck, put his arm around her waist and had his hand on her bottom. While treating her hair at the basin [the Applicant] took [Ms I’s] hand and held it against his groin [deleted]. At the cutting chair he again grabbed [Ms I’s] hand and put it to his groin. [Ms I] did not consent to [the Applicant] putting her hand on his groin and he knew that she was not consenting.

    ·   [In] May 2013, [Ms J] attended the hair salon at around 11:30am. While giving her a massage [the Applicant] began to massage [Ms J’s] neck and shoulders, then massaged down the outside of her breast. He removed her left arm from her bra strap and continued to massage her chest over her breast. He had [Ms J] turn over onto her front and undid her bra, removing it before continuing to massage her close to her breasts. [Ms J] said ‘can you not do that?’ [The Applicant] said said ‘it’s okay, it’s okay’ and was told by [Ms J] to stay away from there. He said ‘it’s okay, it’s okay, it’s not sex’ and then massaged her lower back, partially unfastening her skirt and then removing it completely, leaving her lying on her front wearing only G string underwear. On two occasions while massaging [details deleted]. She sat up, covered her chest and said ‘don’t do that’. [The Applicant] then grabbed [Ms J’s] hand and put it on his crotch. She yanked it away quickly saying ‘I don’t touch anyone there but my husband, I’m married.’ [The Applicant] responded by pushing [Ms J] down on the table and [deleted]. [Ms J] objected saying ‘don’t do that, enough, enough massage, that’s it, finish, stop.’

    ·   On 15 May 2013, [Ms K] attended the salon at around 7:00pm.  [The Applicant] suggested that she have a hair treatment and while waiting for the treatment to take effect he suggested she needed her eyebrows done and took her into the massage room. After plucking [Ms K’s] eyebrows for a short time he plucked some hairs on her chest and blew on her skin. He then quickly undid the top few buttons of her shirt. She asked ‘what’s going on?’ [The Applicant] touched her breasts. At first this was outside her bra. He then loosened her bra by pulling it down and [deleted]. He then put his hand up [Ms K’s] skirt [deleted] saying ‘let me put it in’ and ‘do you have your periods?’ The victim said ‘no, no I’m married and have children and I don’t want this’ and she got up. While [Ms K] was sitting on the massage bed [the Applicant] kissed her by putting his mouth on hers and sticking his tongue inside. [MS K] was moving away and said ‘this is not right.’ [The Applicant] said ‘I need this, I need this and I want this.’ He moved to the side of the bed with his erect penis exposed, grabbed [Ms K’s] hand, and put it on his penis. He said ‘look what you’ve made me do.’ [Ms K] removed her hand and [the Applicant] said ‘watch me come.’ Whilst the victim did her buttons up [the Applicant] masturbated and ejaculated on the floor next to the bed.

20. The following findings of fact were made regarding the offence set out in the sentencing judgment arising from the conviction by [a judge], being an offense committed against one woman at [the Applicant’s] sister’s home [in] November 2014:

    ·   [Ms L] arrived at [Address 1] home at 10.28am. It was the second meeting between [Ms L] and [the Applicant]. She saw [the Applicant] was in the street and they began walking towards each other. [The Applicant] opened his arms to embrace [Ms L] and she allowed him to hug her and hugged him in return. After a few seconds she stopped hugging him, but he did not stop hugging her. Instead [the Applicant] put his head down on her shoulder and began to breathe deeply. He was holding [Ms L] tightly with his right leg in between her legs and his left leg outside her right leg. [Ms L] could feel his erect penis up against her leg and he began kissing her neck and shoulder with an open mouth. She pushed [the Applicant] off saying ‘no [Applicant first name], I am married’ and [the Applicant] let go. [Ms L] went into the house, conducted the business she had come there for, and then left.

    ·   This offense was aggravated by the fact that it was committed while [the Applicant] was on bail for the other offenses referred to above.

21. In both sentencing judgments their Honours reflected on the total criminality of [the Applicant’s] offenses, pointing out that the aggregate sentence reflected a measure of accumulation and recognised the harm done to nine victims.

22. The above information about [the Applicant’s] convictions indicates that he committed a large number of sexual offenses against multiple women, those offences appear to have escalated over time, and he continued to commit offenses even when he was out on bail for previous sexual assaults. This demonstrates a repetitive disregard for Australian law, his victims, and the wider Australian community. In a transcript of the bail hearing [in] June 2013 before [a judge] provided by [the Applicant], [a police officer] from [a] Police station gave evidence that in total 30 women had come forward in response to a request for other victims sent out to  [the Applicant’s] customers. The Tribunal also notes that the [State 1] Police opposed [the Applicant] being granted bail because they were of the opinion that he would continue to operate his business and commit further sexual assault offenses against other women.

1. Further, according to the Tribunal decision (differently constituted) dated 4 March 2017, there is an accusation that while living in Lebanon with his ex-wife [the Applicant] restricted her activities and locked her in the house. In Australia, he ill-treated her and threatened her and her family. DOHA’s records indicate that [the Applicant’s] ex-wife withdrew her sponsorship for his partner visa due to domestic violence and took out an interim apprehended violence order in 2011. That application was withdrawn and the interim order revoked in July 2012.

   Documents

2. [The Applicant] submitted over 90 documents in support of his case. Those documents include financial documents, [Mrs D’s] medical documents, [the Applicant’s] medical documents including from [Organisation 1], and 2014 statements related to [the Applicant’s] relationship with his ex-wife. Some of those documents relate to circumstances in Lebanon and [the Applicant’s] safety there as well as his protection claims.

3. A number of [the Applicant’s] documents and submissions relate to whether [the Applicant] committed the sexual offenses of which he has been convicted, including social media posts, certain transcripts, statements, and DVDs/CCTV footage that the Tribunal declined to view. The Tribunal appreciates that [the Applicant] has continuously claimed that he did not commit the offenses and it acknowledges his intention to appeal his convictions (although it notes that his solicitor has as yet only identified one ground in one case for that appeal). However, [the Applicant] has been found guilty and convicted in four separate proceedings. At the time of its decision he has not appealed and has not been exonerated of any of his crimes, and it would be inappropriate for the Tribunal to second guess Australia’s criminal justice system by going behind those convictions. Therefore, the Tribunal does not intend to consider [the Applicant’s] claims that he did not commit the offenses in determining whether he is at risk of reoffending. It has assessed the information before it and come to its conclusion on the assumption that he is guilty of the offenses that he has been convicted of, although it has taken into consideration that he maintains his innocence when considering his rehabilitation.

4. While the Tribunal has considered all the documents, it has identified the following documents provided in relation to [the Applicant’s] claim that he will abide by Condition 8564:

   ·   Statutory declaration by [Mr A] dated 14 September 2019 stating ‘I’m fully aware of [Applicant’s first name] past allegations and convictions. [Applicant’s first name] currently presents no risk to the community whilst in my care.’

   ·   Character reference from [the Applicant’s] partner, [Ms M], dated 21 October 2019.

   ·   Letters of support from:

   o[Mrs C] dated 23 September 2019.

   o[Mr C] dated 22 September 2019.

   o[Named person] dated 20 September 2019.

   o[Named person] dated 17 September 2019.

   o[Named person] dated 21 September 2019.

   o[Named people] dated 22 September 2019.

   o[Named person] dated 20 September 2019.

   o[The above named person] dated 25 October 2019.

   o[Named person] dated 24 September 2019.

   o[Named person] dated 23 September 2019.

   o[Named person] dated 31 May 2018.

   o[Named people] dated 23 September 2019.

   o[Named person] dated 23 September 2019.

   o[Named person] dated 24 September 2019.

   o[Named person] (undated).

   o[Named person] (undated).

   o[Named person] dated 1 November 2019.

   ·   Undated submission provided online on 25 September 2019.

   ·   Undated submission sent by email on 8 October 2019 in response to the Tribunal’s s.359A letter dated 27 September 2019.

   ·   Email dated 15 October 2019 stating that [the Applicant] ‘was on bail for 22 months and did not breach any bail conditions. This breach was as a result of an additional charge’.

   ·   Submission dated 11 November 2019 in response to the Tribunal’s s.359A letter dated 18 October 2019.

   ·   Report by [Dr N], Clinical and Forensic Psychologist, dated 11 November 2019.

   ·     [Organisation 1] clinical records for [the Applicant] with passages highlighted.

   ·     Treatment plan dated 17 September 2018.

   ·     Various Corrective Services case note indicating [the Applicant] was a good inmate.

   ·     Court documents related to an interim apprehended violence order taken out by [the Applicant’s] ex-wife, [Ms B], against [the Applicant] in 2011. The application was withdrawn and the order revoked [in] July 2012.

   ·     Notification and Parole Order issued by the [State 1] Parole Authority, including the Standard Conditions of Parole.

   ·     [State 1] Government Media Release dated 5 June 2019, ‘Tougher Conditions for Paroled Sex Offenders’.

   ·     Evidence of the refund of bail money.

   ·     The Salvation Army Positive Lifestyle Program for Individuals certificate.

   Undated Submission Provided Online on 25 September 2019

5. The undated submission contains a heading for Condition 8564. For the most part it addresses the delegate’s findings that are not relevant to the Tribunal’s concerns, financial and living arrangements (at [Address 1] property where the last sexual assault occurred), and the support of friends and family. However, it makes the following three statements that are on point:

   ·   ‘Having already completed his non-parole period of imprisonment, the likelihood threshold of him engaging in criminal conduct is submitted to be at the low end of the scale.’

   ·   ‘The Applicant has been granted parole with strict conditions which he is complying with and will continue to comply with if granted a visa.’

   ·    ‘[Mr A] has agreed to lodge a security bond if required on the Applicant’s behalf.’

   Response to the s.359A Letter Dated 27 September 2019

6. In response to the Tribunal’s first s.359A letter, [the Applicant] states that:

   ·     During the 12 months of the interim apprehended violence order issued against [the Applicant] in 2011, he did not breach the order and attended all the court dates. The application for an apprehended violence order was ‘quashed, withdrawn and dismissed’.

   ·     The accusation that he ill-treated his ex-wife in Lebanon was insufficient ‘to suggest that [the Applicant] was ill-treating his wife and restricting her activities.’ Significant reference is made to money paid out by [the Applicant] during marriage and statements by friends and family that he arranged flowers for her birthday, they were always seen out together, she was with him at his salon, and he took her to hospital ‘as his ex-wife was ill’.

   ·     The Tribunal (differently constituted) in its 4 March 2017 decision found that there was no evidence of ill-treatment in Australia.

   ·     [The Applicant] complied with his bail conditions as evidenced by the fact that the surety put up by his sister and her husband was returned.

   ·     [The Applicant] has no history of non-compliance with Australian immigration law including his visa conditions.

   [Organisation 1] Clinical Records

7. [The Applicant] provided [Organisation 1] clinical records with his response to the Tribunal’s second s.359A letter. He has highlighted certain portions of the records that he clearly believes are relevant to the Tribunal’s concerns about his criminal history, risk of recidivism, or prospects for rehabilitation. To the extent that they are relevant to whether he will engage in criminal conduct if granted the visa they include:

   ·   Mental Health Screening report by a mental health nurse dated 19 September 2019 indicating [the Applicant] presented as angry, irritable, and frustrated. He did not want to talk because it would not help him. He said ‘you can’t help me’ and that he would be stressed if he engaged. He was teary during some interactions, reported that his life is ruined and he had lost everything, reported his ex-wife caused him a lot of trouble, and claimed he was innocent (of the sexual assaults of which he was convicted). [Organisation 1] was unable to complete their assessment because [the Applicant] was not in a state to talk. ‘Detainee is aware of the MHT and is happy to engage with a Counsellor.’

   ·   Mental Health Consultation with a mental health nurse (MHC) dated 16 October 2019 indicating [the Applicant] presented as somewhat settled in mood and behaviour, and settled in mental state. He expressed concerns about his health, his mother’s health, his family in Lebanon who are experiencing bushfires, his review, his traumas in prison including a sexual assault, and his accommodation. There is no reference to [the Applicant] engaging with the nurse about his sexual assault convictions or requesting a Counsellor.

   ·   On 17 October 2019, [the Applicant] did not attend his appointment with the psychiatrist.

   ·   MHC dated 25 and 26 October 2019 indicating [the Applicant] presented as highly distressed about his mother’s health. He requested monitoring because he was ‘feeling unsafe to be by himself’. He ‘could not guarantee his safety especially this time when his mum has not fully recovered.’ [The Applicant] denied being suicidal, but was assessed as a high risk of self-harm/suicide ‘as he cant predict what he might do to self’.

   ·   MHC dated 28 October 2019 indicating [the Applicant] was settled in his mood and behaviour because of good news received about his mother’s health. He denied thoughts of self-harm/suicide and was assessed as a low risk.

   ·   MHC dated 29 October 2019 indicating [the Applicant] was settled in mood and behaviour, but he voiced anger that his request to visit his mother was rejected, believes they are hiding things not giving him answers, and discussed legal action. He discussed the ‘difficulties and trauma that he experienced in prison that include being sexually assaulted’; he was having difficulty sharing a room because of his past traumatic sexual assault. There is no reference to [the Applicant] engaging with the nurse about his sexual assault convictions or requesting a Counsellor.

   ·   MHC dated 30 October 2019 indicating [the Applicant] presented with a settled mood, behaviour and mental state. He was experiencing some stress due to his mother’s health but guaranteed his own safety. There is no reference to [the Applicant] engaging with the nurse about his sexual assault convictions or requesting a Counsellor.

   Response to the s.359A Letter Dated 18 October 2019

8. On 18 October 2019 the Tribunal wrote to [the Applicant] inviting him to comment on or respond to the information in the sentencing judgments and the Tribunal’s concerns. It requested that he respond by 22 October 2019. On 22 October 2019, [the Applicant] requested an extension of time in which to respond to the Tribunal’s letter which the Tribunal granted. It requested that [the Applicant] respond to its letter by 12 November 2019. On 12 November 2019, the Tribunal received the submission dated 11 November 2019 (the November submission) and [Dr N’s] psychological report. To the extent that the November submission provides information about whether [the Applicant] will engage in criminal conduct if granted the visa, the submission is dealt with where relevant below.

   Risk of Recidivism

9. The Tribunal has taken into account all the arguments in the November 2019 submission regarding the likelihood that [the Applicant] will reoffend, including the comments on the sentencing judgments and [the Applicant’s] parole.

   Static 99R and the Risk of Sexual Recidivism

10. According to the sentencing judgments, [the Applicant] was administered a Static-99R test by psychologist [Dr O] to test for risk of sexual recidivism. [Dr N], who interviewed [the Applicant] on 1 November 2019, states in his report that [the Applicant’s] risk of reoffending can be estimated using the Static-99R, a statistical instrument designed to assist in the prediction of sexual and violent recidivism for sex offenders.

11. [The Applicant’s] Static-99R test score for the test administered by [Dr O] in 2017 placed him in a category of male adult sex offenders considered a moderate to high risk in terms of reoffending. [Judge F’s] sentencing judgment refers to the Static-99R test, done at [Location 1] Correctional Centre, stating it found [the Applicant] to be in the well above average category in terms of risk of reoffending. [The Applicant’s] score was 6.

12. [The Applicant’s] score in the test administered by [Dr N] was 5. According to [Dr N’s] report an analysis of [the Applicant’s] records indicate that he best fits into the ‘routine/complete’ sample of offenders, although he does not explain why [the Applicant] does not instead fit into the ‘high risk/need’ offenders. For a routine/complete offender with a score of 5 there is a 15% chance he will reoffend in the five years after release. [Dr N] does not indicate if this is considered a moderate to high risk.

13. There is a graph on page 7 of [Dr N’s] report showing that Static-99R scores range from -3 to 10, with -3 having a recidivism rate of around 0 and the score of 10 having a rate of 55%. A score of 6, which according to [Dr O] is a moderate to high risk, has a recidivism rate of 20%. The Tribunal notes that a score of 5 or 6 is certainly more than half way up the scale, which as noted does not start at 0, but at -3. The Tribunal also notes that the scale does not go to 100%, only 55% putting a score of 15% a fifth of the way up the scale of reoffenders. The Tribunal does not consider this to be as small a chance as might be otherwise inferred from [Dr N] only referring to 85% of offenders like [the Applicant] not reoffending. It prefers the more useful characterisation of 20% being a moderate to high risk and so by implication 15% being at least a moderate risk of recidivism.

    The Opportunistic Nature of [the Applicant’s] Offenses

14. In his report dated 29 September 2017, psychologist [Dr P] stated [the Applicant] ‘has no insight, no empathy for the victims and no remorse.’ [Judge E] agreed. The view of [Dr P] and [Dr O] was that the opportunistic nature of his offences was suggestive of cognitive distortions regarding consent and sexual boundaries, but this was largely speculative given his ‘denial and inability to discuss the offences in question with any self-reflection making it equally likely that he was driven by opportunity with vulnerable victims and a disregard for his role of responsibility of a hairdresser and masseur.’  [Judge E] also observed that [the Applicant’s] crimes were opportunistic, indecently assaulting vulnerable female victims who placed their trust in him with a total disregard for his professional role and responsibility as a hairdresser and masseuse. That sentencing judgment finds [the Applicant] was clearly on the lookout for opportunities to derive sexual pleasure from his unsuspecting clients.

15. In the November 2019 submission [the Applicant] states that his lack of remorse or empathy for his victims is because he maintains he is innocent of the crimes and the Tribunal has taken this into consideration. However, [Dr P] and [Judge E] were also aware [the Applicant] maintained his innocence when they gave their assessment, and the Tribunal has explained above why it does not intend to go behind the convictions. Therefore, it gives [Dr P’s] and [Dr O’s] opinions in particular considerable weight.

16. In support of his case, [the Applicant] points out that he complied with his bail conditions and provides as evidence the fact that the surety put up by his sister and her husband was returned. This is a highly misleading submission since [the Applicant’s] bail was revoked because he committed another criminal act while out on bail. Rather than supporting [the Applicant’s] case, this significantly undermines that he would not engage in criminal activity if granted the visa. In this regard, the Tribunal notes the opportunistic nature of [the Applicant’s] offence against [Ms K] while he was on bail for earlier offences. This did not take place at the salon, but at the residence [at Address 1] where [the Applicant] proposes to live if granted the visa. The Tribunal has considered whether this demonstrates that there remains a risk to the Australian community because he will continue to engage in criminal conduct should [the Applicant] be released from detention. It has concluded that it certainly weighs on that side.

17. The Tribunal accepts the submission that in [Judge F’s] sentencing judgment the Crown characterised [the Applicant’s] offenses as falling at various points along the range of objective seriousness, some right at the lower end. But it is the cumulative and opportunistic nature of the offenses against multiple women in more than one location that is of concern not the level of the offenses, although the Tribunal believes several of the offenses were extremely serious and the seriousness of the offenses appeared to escalate over time. It is the repeated nature of the offenses, even after being charged, that the Tribunal has given weight when considering if [the Applicant] will reoffend if granted the visa.

    [Ms B] and the Domestic Violence Claims

18. The Tribunal also notes that prior to 2013 there was evidence of violence against women, in particular against his ex-wife, [Ms B], who withdrew her sponsorship of his partner visa due to domestic violence claims. [The Applicant] argues that the application for an apprehended violence order made by his ex-wife was ‘quashed, withdrawn and dismissed.’ The application was not ‘quashed’ or found to be unmeritorious by a court. In fact, on two separate occasions, [December] 2011 when the matter was adjourned for hearing and [March] 2012 when the matter was adjourned and listed for mention, the interim apprehended violence order was extended. The application was only dismissed and the interim order only revoked because [Ms B] withdrew the application. There are any number of reasons why an ex-wife withdraws an application for an apprehended violence order, not only because ostensibly there was no violence. However, the Tribunal acknowledges that during the 12 months of the interim apprehended violence order issued against [the Applicant] in 2011, there is no evidence he breached the order and he attended all his court dates. This is definitely evidence in [the Applicant’s] favour and has been given considerable weight.

19. [The Applicant] submits that the accusation that he ill-treated his ex-wife in Lebanon was insufficient to suggest that he actually did mistreat his wife or restrict her activities, and the Tribunal agrees. However, when it is viewed in light of her application for an apprehended violence order, their divorce, and his subsequent behaviour towards women, it is plausible. [The Applicant] points to statements by friends and family that he arranged flowers for [Ms B’s] birthday, they were always seen out together, she was with him at his salon, and he took her to hospital ‘as his ex-wife was ill’ as evidence he did not mistreat her. The Tribunal does not agree that this evidence exonerates [the Applicant]. For instance, there are no statements about [Ms B] seeing friends or appearing in public without [the Applicant], and it is rarely clear to outsiders what is occurring within a marriage. The Tribunal notes with interest that a significant amount of the evidence provided by [the Applicant] to show his good treatment of his ex-wife is highly transactional and relates to how much money he paid out during their marriage.

20. [The Applicant] claims that the fact the Tribunal (differently constituted) in its 4 March 2017 decision found that there was no evidence of ill-treatment of [Ms B] in Australia supports that he did not mistreat his ex-wife. The Tribunal disagrees because there is evidence in the form of the application and interim apprehended violence order.

    Parole

21. [The Applicant] claims that having completed his non-parole period in prison, ‘the likelihood threshold of him engaging in criminal conduct is … at the low end of the scale.’ The Tribunal does not accept this argument. First, for the reasons below the Tribunal does not agree that [the Applicant’s] parole minimises his likelihood of reoffending. Further, the fact that [the Applicant] may be at the lower end of the scale, which the Tribunal does not concede, does not mean that he will not engage in criminal conduct. It simply means that he may be less likely to reoffend that someone with a higher Static-99R score.

1. [In] August 2019, [the Applicant] was granted parole. The Parole Authority has informed the Tribunal that the Parole Authority granted parole for the following reasons:

   ·   It was [the Applicant’s] first period of incarceration;

   ·   Community Corrections recommended release to parole;

   ·   [The Applicant] demonstrated satisfactory behaviour in custody;

   ·   [The Applicant] had suitable post-release plans in the community;

   ·   [The Applicant] had limited access to counselling and programs in custody;

   ·   [The Applicant] had appropriate interventions available post-release;

   ·   [The Applicant’s] risk of re-offending could be appropriately addressed through parole supervision.

2. The Tribunal notes that the Parole Authority found that [the Applicant’s] risk of reoffending needed to be addressed through parole supervision and that he needed access to counselling and appropriate intervention post-release. Therefore, it appears the members of the parole board continued to have concerns about [the Applicant’s] reoffending without that intervention and monitoring. [The Applicant] notes that he has been granted parole with strict conditions ‘which he is complying with’ and that he will continue to comply with if granted a visa. In the November 2019 submission [the Applicant] included reference to the ‘tougher conditions for paroled sex offenders’ like GPS tracking and other supervision.

3. First, it must be noted that [the Applicant] has not had an opportunity to not comply with his parole conditions since he has been in detention since being released from prison. Second, [the Applicant] maintains that he is not guilty of any offense against any of the women cited above. He has not undertaken to engage in any counselling or rehabilitation (also see below) which was part of the parole order. Finally, [the Applicant’s] sentence, and so parole period, ends on [in] November 2020, after which he will not be subject to any monitoring or parole supervision. The Tribunal does not give [the Applicant’s] parole in itself very much positive weight in considering whether he will engage in criminal activity, because it finds the fact that he was paroled is outweighed almost entirely by the parole board’s concerns that he required supervision and the fact that that supervision will cease in a year.

   Rehabilitation

4. [Judge E’s] sentencing judgment refers to [Dr P’s] view that [the Applicant] was nihilistic and histrionic on presentation. However, [Judge F] noted that [Dr P] was of the opinion that [the Applicant] is reasonably intelligent and has positive prospects of engaging in and benefiting from special psychological input such as cognitive behavioural therapy and other courses, although [Judge F] found it difficult to conclude that he has better than reasonable prospects of rehabilitation or is unlikely to reoffend. [Dr N] also considered that [the Applicant] had good prospects for rehabilitation, referring to treatment that is developed for categorical deniers of sexual offences. He refers to [the Applicant] having ‘good prospects of progressing further in his rehabilitation’, but it is unclear to the Tribunal, despite any number of opportunities, that [the Applicant] has engaged in any rehabilitation despite [the Applicant] telling [Dr N] and [Organisation 1] that he is interested in psychological treatment.

5. [The Applicant] has not engaged in any special psychological input referred to by [Dr P] as part of his assessment of [the Applicant’s] prospects for successful rehabilitation. Despite the parole board stating the programs were limited, [Dr P] noted in his report that there were relevant rehabilitation programs based in prison as well as the community. He stated that [the Applicant] had ‘positive prospects of engaging in and benefiting from’ such treatment, but [the Applicant] did not engage in those, or any other, rehabilitation programs. The Tribunal notes that [the Applicant] saw a mental health professional on multiple occasions while in jail and in detention, including almost daily consultation with a mental health nurse from [date to date] October 2019. While [the Applicant] discussed his own sexual assault in prison (when another prisoner [deleted) with [Dr N] and other mental health professionals, except to avoid and deny, he did not discuss his sexual assault convictions or ask for the rehabilitation he was well aware he was expected to engage in to minimise his prospects of reoffending. Instead he told mental health personnel they could not help him and did not attend his 17 October 2019 psychiatrist appointment.

6. The Tribunal accepts that in [Dr N’s] opinion [the Applicant’s] best prospects for rehabilitation are in the community where he can receive psychological treatment specifically tailored to his needs and be free of the negative influences of the detentions centre. However, that is not the question for the Tribunal. The Tribunal must decide whether at the time of this decision [the Applicant] is sufficiently rehabilitated that he will not engage in further criminal conduct. Setting aside that [the Applicant] has not engaged in any program targeted at rehabilitation of categorical deniers of sexual offences, the evidence before the Tribunal appears to be that to date he as actually avoided engaging in any meaningful rehabilitation.

   Other Evidence

7. The Tribunal has taken into account that these were [the Applicant’s] first criminal convictions. However, it finds this is mitigated by the fact that there were so many offenses over a period of months and that even once he was charged he again engaged in criminal conduct by committing another sexual offense. The Tribunal has taken into account [the Applicant’s] behaviour in prison and this, like his other character references, is a consideration in his favour. The Tribunal does note however that in prison [the Applicant] did not have the opportunities that led to his criminal conduct and so it is not really evidence of his behaviour in the community in the future.

8. In both sentencing judgments, their Honours referred to [the Applicant’s] long term partner as a positive aspect of his life that would assist with his rehabilitation and appeared, at least to a small degree, to mitigate concerns about his relationship to women. In [Dr N’s] report he also states [the Applicant’s] prospects for rehabilitation are enhanced by his supportive relationship with [Ms M], his family and friendship network, as well as realistic future plans, and his willingness to participate in psychological treatment (which the Tribunal has addressed above).

9. The Tribunal accepts the letters from [the Applicant’s] friends and family describing his good character and it is clear he has a strong network of social and financial support. In some cases these letters express the unlikelihood of [the Applicant] having committed the assaults of which he has been convicted. The Tribunal accepts that his friends and family continue to believe that he is innocent. However, as noted above, [the Applicant] was convicted in four separate proceedings and the Tribunal does not intend, at this time, to go behind those convictions. The Tribunal notes [Mr A’s] evidence that [the Applicant] will be his responsibility, financially and otherwise, if released from detention and will present no risk to the community while in his care. It has given particular weight to [Ms M’s] statement in [the Applicant’s] favour as his current partner since 2012.

10. [The Applicant] has struggled with his mental health in prison and in detention, particularly since his mother’s health has deteriorated. This is understandable and the Tribunal acknowledges the records that show it has taken some toll on his health. However, this in itself does not address the Tribunal’s concerns about [the Applicant’s] risk of recidivism or lack of rehabilitation.

11. The Tribunal accepts the claim in the November 2019 submission that [the Applicant] has no history of non-compliance with Australian immigration law including his visa conditions and it has taken that fact into consideration when making its decision.

    Findings

12. Given the opportunistic nature of his offenses, his Static-99R score, and the comments by [Dr O] and [Dr P], the Tribunal finds that [the Applicant’s] disregard for his victims and lack of remorse, together with his failure to seek any counselling or intervention, means he is at risk of engaging in criminal conduct should he be released from detention. His lack of insight or ability to engage with his offenses demonstrates a disregard for Australian law, his victims, and the wider Australian community. While [Dr P] and [Dr N] were of the opinion that [the Applicant] has reasonable prospects of being successfully rehabilitated, and there can be relevant rehabilitation without confession, the Tribunal finds that on the evidence before it until he engages in that rehabilitation he remains at least a moderate risk of reoffending.

13. The Tribunal accepts the remarks in [Judge F’s] sentencing judgment set out in the November submission. [The Applicant’s] indecent assaults were of varying seriousness. This does not change the fact that they were criminal conduct. Nor does it mitigate the fact that he committed multiple offenses, some of them not on the lower end of the scale of seriousness. He sexually assaulted at least 11 women over several months before he was finally stopped by being incarcerated. The Tribunal also agrees that [the Applicant’s] offending was opportunistic, involving significant discomfort for his victims. While its duration or the fact that it did not involve pain or injury may be relevant to sentencing, it is not, in the Tribunal’s opinion, relevant to its enquiry. The question for the Tribunal is did he engage in criminal conduct and will he do so again. The opportunistic nature of the offenses, as illustrated by the fact that once he no longer had access to the salon he found that opportunity elsewhere, is of particular concern to the Tribunal.

14. When all the evidence in support of his claim he will not commit further offenses if granted the visa, including [Ms M’s] statement, is weighed against the evidence from the psychologists and [the Applicant’s] behaviour to date, the Tribunal finds that it does not overcome its concerns about his risk of reoffending. [The Applicant’s] offenses are crimes of convenience and opportunity. They appear to indicate at the very least poor impulse control on [the Applicant’s] part. Without some evidence of rehabilitation, it remains the Tribunal’s belief, despite his friends’ and family’s belief to the contrary, that given that opportunity again there is an unacceptable risk that he will reoffend.

15. The Tribunal is not satisfied that he will not engage in criminal conduct if granted the visa.

    Other Matters

16. The Tribunal has taken into account [Mrs D’s] condition as well as all the medical and other evidence presented both in [the Applicant]’s submissions and at the hearing regarding her health and need for assistance. It has also taken into account [the Applicant’s] distress at the situation and the refusal to grant him permission to visit her. However, while the Tribunal sympathises with [the Applicant’s] situation, this does not affect its findings above regarding the likelihood that he will engage in criminal conduct if granted the visa.

17. The Tribunal accepts [the Applicant’s] evidence, including the letter from the [Location 1] Chaplain, that [the Applicant] wishes to pursue his religion more fully. However, it does not accept that this fact overcomes its concerns that he will engage in criminal activities if released from detention.

    Security

18. [Mr A] has agreed to lodge a security bond on [the Applicant’s] behalf. However, in light of its findings above, the Tribunal finds that it does not accept that a security, regardless of amount, will secure [the Applicant’s] compliance with Condition 8564.

    Conclusion

19. On the evidence before it, the Tribunal is not satisfied that [the Applicant] will abide by conditions imposed on the visa if granted, even if there is a financial incentive. Therefore, does not meet cl.050.223.

20. For these reasons, [The Applicant] does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

21. The visa application is also an application for a Subclass 051 (Bridging (Protection Visa Applicant)) visa. [The Applicant] is not a relevant eligible non-citizen as set out in cl.051.211 of Schedule 2 to the Regulations and does not meet the requirements for the grant of that visa.

    DECISION

22. The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

    Mireya Hyland
    Member