2013597 (Migration)

[2021] AATA 3060

2013597 (Migration) [2021] AATA 3060 (4 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2013597

MEMBER:James Lambie

DATE:4 August 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 020 (Bridging B) visa.

Statement made on 04 August 2021 at 11:04am

CATCHWORDS

MIGRATION – cancellation – Bridging B (Class WB) visa – Subclass 020 (Bridging B) visa – risk to the health and safety of the Australian community – applicant convicted of an offense – sentence suspended – judgment of lower level of offending – lack of previous criminal history – no child affected by the offence – personal circumstances of applicant’s family – decision under review set aside     

LEGISLATION

Migration Act 1958, ss 116, 359
Migration Regulations 1994
Penalties and Sentences Act 1992 (Qld), s 9

CASES

Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80

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

1. This is an application for review of a decision dated 26 August 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 020 (Bridging B) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e) of the Act on the basis that the criminal offences with which he has been charged and convicted of show that his presence in Australia may be a risk to the safety of the Australian community. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 22 July 2021 to give evidence and present arguments.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(e)(i) of the Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

7. A visa may be cancelled under s.116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].

8. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

9. The applicant arrived in Australia with his wife and [children] in January 2019. He has been in a relationship with his wife since 2012. They have [number] children aged [respective ages] years old.

10. The applicant has a criminal record as follows:

Date	Offence	Result
Between [specified dates in] November 2019	Using electronic communication to procure a child under 16	Convicted and sentenced to [term] imprisonment, wholly suspended for two and a half years from the date of sentence

1. The offence was dealt with in the [specified court] [in] May 2021.

2. [In] October 2020, the Tribunal issued a summons to the Queensland police service seeking production of documents relating to [the applicant’s] criminal history. This material was produced to the Tribunal [later] October 2020.  It was put to the applicant for comment pursuant to s.359A on 27 October 2020.  The response is noted below.

3. The facts and circumstances surrounding [the applicant’s] offending are described in the police charge sheets, the delegate’s decision and the submissions provided by [the applicant’s] representatives. In brief, [the applicant] responded to an advertisement on an adult services website which read: “Aunt requesting some help with young niece coming of age. Discreet.” In the course of making contact with the purported advertiser, ‘[Ms A]’, he was made aware that the niece in question was 14 years old. The purported advertiser, on two occasions, elicited some details from him as to the sexual activities he proposed to engage in with the niece. On 11 November 2019, [the applicant] sought to meet the purported advertiser in a park at [a location] for the purposes of discussing these matters further, at which time he was arrested. The purported advertiser was an undercover police officer. The niece was fictitious.

4. [The applicant’s] representative submitted that the circumstances of [the applicant]s] offending are quite unusual and that they, and [the applicant’s] personal profile, indicate that he poses a significantly lower risk to the community than might usually be indicated to the Tribunal by a conviction for an offence of a sexual nature. In support of these submissions, they refer to the trial judge’s sentencing remarks, the psychologist’s reports of [Psychologist A] and [Psychologist B], a report from [Agency 1], and to the written submissions of both [the applicant and his wife].

5. I have read and, respectfully, given very considerable weight to the sentencing remarks.  [The applicant’s] representatives have also provided a précis of those remarks and commentary which has been of some assistance. I consider the following extracts from the submissions to be particularly relevant:

   His Honour was satisfied that our client’s “purpose” in using the [named] website “was not in a predatory way to look for underage children” but rather “to attract attention to and from an adult woman”. The remarks note that our client was “looking at women who were in a category of 20s through to late 40s”, as confirmed by the evidence.

   The advertisement did not suggest it was offering sexual intercourse with a person under the age of 16. His Honour noted that “coming of age once traditionally meant 21, and more recently perhaps 18” and that “the description ‘sexually experiment’ left open as to precisely what might be involved.” His Honour found that our client “looking at [the advertisement] is entirely consistent with the search for some sort of affair with an adult woman”.

   His Honour accepted that the communications between our client and ’[Ms A]’ showed him he had “one foot in and one foot out”. His Honour accepted that our client’s “preference” was to pursue the adult ‘[Ms A]’ … This accords with the prosecution’s decision to discontinue the circumstance of aggravation and accept our client had not formed an intention to actually meet the underage niece. His Honour considered that feature “put this offending toward a lower level of this example of the offence.”

   In relation to the sexual messages our client’s exchange, His Honour considered important that the undercover police officer posing as ‘[Ms A]’ “pressed” him for these messages. His Honour observed that ’[Ms A]’ “was leading [our client] into an area that [he] probably had not even considered and[he] expressed it in a way that presented it as a very soft approach to the proposed niece”. His Honour noted that, in that context, these messages did not indicate that “this is what [our client] really wanted to do to the 14 year old niece.” His Honour appears to have accepted the submissions that our client was reticent about providing these messages commenting:

   “I regard it as significant that you suggested to [Ms A] that she would be the best person to explain to the 14-year-old niece what it was all about.”

   His Honour concluded that there were exceptional circumstances in our client’s case such that he should not spend any time in actual custody, noting the following features:

   a.    “a complete lack of any convictions”;

   b.    lack of criminal history was “particularly important in this case, because there is no history of proven deviancy by way of previous convictions”;

   c.     “no explicit photos or videos were sought by [our client], or were exchanged as part of the ruse”;

   d.    our client “did not, in a predatory way, seek out an underage girl, but rather, [he was] the victim to a set up”;

   e.    our client “did not, and did not think that [he was] speaking to an underage girl directly”, which was “a matter of some distinction” compared to the other cases cited;

   f.   “nothing in [our client’s] history or … personal circumstances … pointed to a risk of any risk to children”;

   g.    our client had “engaged with a psychologist … to address relevant risk factors”, which His Honour considered “extremely impressive”;

   h.    our client was “remorseful”; and

   i.   the absence of a s.218A(2) circumstance of aggravation “put this offending towards a lower level of this type of the offence”.

   His Honour observed that there was “no child affected by the offence.” As a result, many of the mandatory sentencing considerations in s.9(6) of the Penalties and Sentences Act 1992 (Qld) were irrelevant.

   On the question of risk, His Honour considered it “very unlikely that [our client] will reoffend” and concluded that there was “never any possible concern” that our client posed a safety risk to his own children.”

6. [The applicant] and his representatives, while not denying that a ‘sting’ operation is a legitimate tool of law enforcement, submit that it is relevant in assessing any possible risk that [the applicant] poses to the community that the evidence indicates, and it was accepted by the sentencing judge, that the process by which [the applicant] became involved in the offence was very significantly elicited and guided by the police. His Honour [Judge A] considered the case to be unique in that “but for the approach made in the advertisement under what might have appeared to be ordinary adult communications, [[the applicant] was] led into a situation that, ordinarily, [he] might have walked away from.” [The applicant’s] representatives submitted that neither the defence nor the prosecution were able to locate any precedent in Australia for sentencing for an offence with these particular features, and that there was no similar precedent they could find in relation to a comparable application to the Tribunal.

7. I have taken into account the psychologists’ reports.  The report of [Psychologist B] notes that [the applicant] describes a stable family background without trauma or abuse and no indications of current or past mental illness, personality disorder or substance misuse. It was, however, her opinion that the motivation for the offending appears to have been sexual gratification with an indication of a deviant sexual interest in underage females. At the time of the report, she considered that [the applicant] presented with moderate to high risk of reoffending and that even the deterrent of incarceration or deportation might not be sufficient.

8. The report of [Psychologist A], made some nine months later, noted the partial presence of sexual deviance, but the absence of previous sexual offences or nonsexual criminality and other issues which might contribute to the risk of sexual offending. At the time she compiled her report, [Psychologist A] had been providing a course of treatment to [the applicant]. As at [March] 2021, she had observed no evidence to suggest the presence of sexually deviant thoughts or interests. It was her opinion that [the applicant] does not pose a high risk of sexual reoffending, subject to a recognition that some risk factors are dynamic and that he would benefit from further treatment. [The applicant] gave evidence that he had, by the time of the Tribunal hearing, completed the course of treatment at the personal cost of some $[amount].

9. Taken on their own, the psychologists’ reports would have given rise to serious concern that, having regard to the offences of which he has been convicted, [the applicant’s] presence in Australia does pose a risk to the safety of the Australian community. However, as indicated in paragraph 15 above, I give very considerable weight to the sentencing remarks of his Honour [Judge A] to whom fell the task of judicial determination of the risks posed to the community by [the applicant] in light of all of the evidence and with regard to the principles of specific and general deterrence. His Honour assessed the psychologists’ reports as part of his deliberations, in making the finding that “there is nothing in [his] history or in the personal circumstances that have been elicited from [him] in those reports  [that] pointed to a risk of any risk to children”.

10. Importantly, in addition to the extracts and summaries of the sentencing remarks quoted and referred to above, His Honour considered that personal deterrence was not a significant feature of [the applicant’s] case because “the risk is significantly reduced as a result of the counselling” and, as a result he had “no real concern about protecting the Queensland community from [him]”. In considering alternative sentences, he concluded that an intensive correction order would create significant complications for [the applicant’s] family and that the intensity of such an order was not required in his case. Similarly, a probation order was not considered suitable because, with the treatment [the applicant] had been receiving, he would not require long-term supervision under probation.

11. I have also given weight to the letter of [January] 2020 from [Agency 1], which assesses that concerns that [the applicant’s] children may be exposed to sexual abuse are unsubstantiated.

12. I have given careful consideration to the grounds for cancellation in this application, particularly given that sexual offending of any nature is contrary to the expectations of the Australian community. However, there are specific features of this case which, in my view, compel a close analysis of the risk posed by [the applicant’s] continued presence in Australia. The first of these is that there was never, at any time, any communication with any person [the applicant] believed to be, or who purported to be, under the age of 16. Similarly, there was no child affected by the offence or likely to be affected by the offence. There is no victim impact to be considered because no victim was in existence. The second feature is that all of the evidence is to the effect that [the applicant] had been seeking adult contact and that the purported underage contact was suggested and, to an extent, encouraged by the undercover police officer. The third feature is that this appears to be a completely isolated incident with no indications before or since of any tendency to sexual offending.

13. At the hearing, I received extensive evidence [the applicant’s] personal circumstances and those of his family.  I consider it relevant that his family situation is stable and that he has very active parental responsibilities for [his] young children and one older [child].  That would also be relevant to the exercise of the discretion should I be satisfied that the relevant risk to the community existed.

14. As indicated above, I have given very considerable weight to the fact that [the applicant] has been convicted of a sexual offence and that a conviction of this nature would ordinarily be strongly indicative of a risk to the safety of the Australian community. However, with some hesitancy, I accept that the circumstances of the offence are highly unusual. In the end, I have given the greatest weight to the remarks of the learned sentencing judge, in whose assessment [the applicant] does not pose a risk to the safety of the community such that a suspended sentence was preferred over a term of actual imprisonment normally imposed for an offence of this nature. I have also given weight to the fact that His Honour considered and dismissed a range of sanctions requiring [the applicant’s] supervision. With His Honour’s reasoning in mind, I am respectfully inclined to concur that [the applicant] does not pose a risk to the safety of the Australian community.

15. In coming to this view, I would observe that, had I found that the evidence tended to indicate the existence of the relevant risk, I would have placed it at the low end of the scale for the purposes of the exercise of the discretion. I am satisfied that, on the evidence provided by [the applicant] and his representatives, the best interests of his children (in particular, but also in combination with other factors) would have weighed heavily against the cancellation of the visa.

16. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(e) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

17. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 020 (Bridging B) visa.

    James Lambie
    Senior Member