Amoorthum and Minister for Home Affairs (Migration)

[2019] AATA 536

Amoorthum and Minister for Home Affairs (Migration) [2019] AATA 536 (25 March 2019)

Division:GENERAL DIVISION

File Number(s):      2018/7490

Re:JEAN MARIE CLAREL AMOORTHUM

APPLICANT

Minister for Home AffairsAnd  

RESPONDENT

DECISION

Tribunal:R. CAMERON SENIOR MEMBER.

Date:25 March 2019  

Place:Melbourne

The Tribunal decides that the Reviewable Decision should be set aside and remitted for reconsideration with the direction that the discretion in section 501 (1) be exercised in favour of the Applicant.

........................[sgd]...........................................

R. CAMERON SENIOR MEMBER

CATCHWORDS

MIGRATION – visa refusal on character grounds – whether the Applicant passes the character test – more than remote or trivial chance of reoffending – Applicant does not pass the character test – whether the visa application should be refused – consideration of relevant factors – decision set aside and remitted with direction

Legislation

Migration Act 1958 (Cth)

Cases

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary Materials

Ministerial Declaration No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

R. CAMERON SENIOR MEMBER.

25 March 2019

THE APPLICATION.

1. On 5 December 2018, the Applicant was refused a Skilled (Residence) (Class VB) Visa by a delegate of the Respondent Minister under section 501 (1) of the Migration Act 1958 (“the Act”) (“The Reviewable Decision”). He seeks a review of that decision.

   SOME RELEVANT BACKGROUND FACTS.

2. The Applicant is a citizen of Mauritius. He was born on 16 August 1978. On 19 September 2006 he arrived in Australia as the holder of a Student visa. His wife and eldest child arrived in Australia approximately three months later.

3. The Applicant was granted a Skilled Graduate (Class VC) Visa on 26 May 2010. Subsequently, he applied for a Skilled (Residence) (Class VB) Visa (“the visa”). This Visa included the Applicant’s wife and their two children as dependents, following an application to the Migration Review Tribunal on 30 June 2014.

4. The Applicant was convicted in the Melbourne County Court on 21 July 2014 of stalking another person and making threats to inflict serious injury. More will be said about this offending later in these reasons. On 26 October 2015 the Community Corrections Order that was imposed upon him in the County Court at Melbourne on 21 July 2014 was varied.

5. Following his convictions, the Applicant was issued with a Notice of Intention to Consider Refusal of the visa on character grounds on 26 February 2015. The Applicant responded. This process resulted in a refusal of his visa on two occasions and applications being made to the appropriate court.  This led to the decision to refuse the visa being set aside on various grounds that are not relevant to this application.

6. On the first occasion the visa was refused, which was on 10 August 2015, the Applicant was taken into detention as an unlawful non-citizen. He was subsequently released and issued with a bridging visa pending the redetermination of his application.

7. There was a further refusal of his application and he was taken into immigration detention again on 4 January 2018. He was released again on another bridging visa.

8. As noted earlier, on 5 December 2018, the application for the visa was refused and the applicant was taken into detention on 17 December 2018.

9. The Applicant’s wife, his eldest daughter (born in Mauritius on 12 January 2005) and the third eldest daughter (born on 1 September 2014 in Australia) have had their dependent visas refused. However, they have been issued with bridging visas to permit them to remain in Australia pending the final determination of the Applicant’s current visa application. The Applicant’s son (born in Australia on 9 March 2008) acquired Australian citizenship by operation of law on 9 March 2018, since he was born in Australia and as at that date had been ordinarily resident in Australia throughout the period of 10 years, beginning on the day he was born. Therefore, as an Australian citizen, he does not require a visa to remain in Australia.

10. For completeness, the Tribunal notes that the Applicant elected to include his youngest child (a daughter, born in Australia on 23 September 2017) as a dependent on his visa application that was refused. It is this refusal decision that is under review before the Tribunal in this application.

    A SYNOPSIS OF THE LEGISLATION APPLICABLE TO THIS APPLICATION.

11. As noted earlier a delegate of the Respondent refused to grant a visa to the applicant under the provisions of section 501 (1) of the Act. This section confers upon the respondent Minister a discretion to refuse to grant a visa to a person if the person does not pass the character test.

12. Under section 501 (6) of the Act several criteria are specified to determine if a person does not pass the character test. In this application, the grounds relied upon by the Respondent to conclude that the Applicant does not pass the character test are those identified in section 501 (6) (d), which provides that:

    “For the purposes of this section, a person does not pass the character test if:

    in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

    (i)engage in criminal conduct in Australia; or

    (ii)harass, molest, intimidate or stalk another person in Australia;”

13. If the decision-maker concludes that the Applicant does not pass the character test, they are then obliged to apply what is known as “Direction No 79” (“Direction 79”) published by the Minister for Immigration, Citizenship and Multicultural Affairs. Direction 79 is published under section 499 of the Act and binds decision-makers who exercise certain discretions under the Act, including that conferred by section 501 (1).

14. The Preamble to Direction 79 contains “General Guidance” for decision-makers and the Principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse a non-citizen’s visa application under section 501.

15. Part B of Direction 79 identifies the considerations relevant to visa applicants in determining whether to exercise the discretion to refuse a non-citizen’s visa application. Part B is divided into as “Primary considerations-visa applicants” (clause 11) and “Other considerations-visa applicants” (clause 12).

16. Clause 8 (1) prescribes that decision-makers must take into account primary and other considerations relevant to the individual case. Clause 8 (4) specifies that primary considerations should generally be given greater weight than the other considerations. However, Clause 8 (3) states that both primary and the other considerations may weigh in favour of, or against, refusal, of the visa. Clause 8 (2) specifies that in applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

17. Direction 79 also contains “ANNEX A-Application of the character test”, which provides guidance for the decision-maker in determining whether a visa applicant passes the character test. Specifically, Clause 6 of Annex A “Risk in regards to future conduct (section 501 (6) (d)” and sub-clauses 6.1 (Risk of engaging in criminal conduct in Australia (section 501 (6) (d) (i)) and 6.2 (Risk of harassing, molesting, intimidating or stalking another person in Australia (section 501 (6) (d) (ii)) provides guidance to the decision-maker in assessing whether a visa applicant does not pass the character test applying these sub-sections of the Act.

18. The circumstances of each case must be assessed taking into account the relevant considerations specified in Direction 79 and evaluated by the decision maker. The decision-maker will assess the weight to be given to each consideration in the light of the facts established in the case; and having given each consideration appropriate weight, assess them all together to reach a conclusion or decision more accurately, as required by Direction 79.

19. The exact terms of Direction 79 are published and it is not necessary for them to be reproduced in these reasons.

    THE CHARACTER TEST.

20. The Applicant asserts that he passes the character test contained in section 501 (6) (d) of the Act because there is no risk of him engaging in further criminal conduct in Australia[1]. He relies upon several facts and circumstances which are outlined in these reasons in more detail under the heading “The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct”.

    [1] The contents of the Applicant's Statement of Facts, Issues and Contentions dated 11 February 2019 at page 7 under the heading of the "Character test" are referred to in their entirety.

21. He also highlights the steps that he has taken since his offending to rehabilitate himself. Those steps will also be addressed later in these reasons. He points towards his remorse. Additionally, he identifies the fact that he has not committed any crime before or after the events of 6 November 2012.

22. The Respondent contends that the Applicant does not pass the character test because of the nature and seriousness of his offending on the night of 6 November 2012. He further contends that the risk of the Applicant again engaging in such criminal conduct is a real one; in the sense that it is more than a remote or speculative risk, and therefore the Applicant does not pass the character test because there is a risk he would engage in criminal conduct if allowed to remain in Australia.[2]

    [2] The contents of the Respondent's Statement of Facts, issues and Contentions particularly at "Part V Contentions-Character Test" paragraphs [36] to [44] are referred to in their entirety.

23. The language used in Clause 6 of Annex A “Application of the character test in Direction 79” introduces the concept of a risk in sub-clause (1); and in sub-clause (2) specifies that the grounds to hold that a person does not pass the character test are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or remain in Australia, would engage in the conduct specified in section 501 (6) (d) of the Act.

24. On the evidence, which will be analysed further in these reasons, it cannot be said that, given the Applicant’s offending (including his conduct at the Police Station following his arrest and conduct in the record of interview), even though it only occurred in a single instance, there is a minimal or remote chance that the Applicant would engage in criminal conduct in Australia or harass, molest, intimidate or stalk another person. For reasons that will be articulated later, the Tribunal reaches a conclusion that there is a very low risk of the Applicant re-offending. That finding is sufficient to be captured by the language used in sections 501 (6) (d) (i) and (ii) of the Act.

25. For these reasons, therefore, the Tribunal accepts the Respondent’s contention that the Applicant does not pass the character test.

26. Given that the Applicant has not passed the character test, it is therefore necessary to consider the available discretion vested in the decision-maker under section 501 (1) of the Act.

    PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT.

27. The first consideration in part B is the primary consideration under Clause 11, “Protection of the Australian community from criminal or other serious conduct”. This primary consideration specifies that there is a low tolerance in the Australian community for Visa applicants who have previously engaged in criminal or other serious conduct. Clause 11 requires the decision-maker to address two constituent parts. The first part is the nature and seriousness of the non-citizen’s conduct to date. The second part is the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    THE NATURE AND SERIOUSNESS OF THE APPLICANT’S CONDUCT TO DATE.

28. As a starting point in this analysis, it is necessary to recount the Applicant’s criminal record which was briefly touched on earlier in these reasons. He was convicted of stalking another person and threatening to inflict serious injury. There are no other convictions or criminal offending. The offending occurred as a result of one incident at approximately 2:40 AM on 6 November 2012. Details of the facts and circumstances surrounding the Applicant’s offending are contained in the Reasons for Sentence of His Honour Judge Meredith of 21 July 2014, which is contained in the G Documents before the Tribunal[3]. A brief summary of the facts surrounding the Applicant’s offending will be provided for the purposes of these reasons.

    [3] There is also extensive evidence concerning the Applicant’s offending contained in a second volume of materials "Paginated Supplementary G-Documents" which was exhibit "R 2". These documents included witness statements, forensic photographs, a transcript of a tape-recorded record of interview between the Applicant and police conducted at the Narre Warren police station on 6 November 2012, and other contents of what is known in a prosecution of this type as a "Hand-up Brief".

29. On 5 November 2012 the Applicant returned to his family home with his wife after an evening visiting relatives. After 2.00 AM on the following morning, when his wife had gone to bed, the Applicant drove his white car to a nearby hotel with the intention of playing poker machines. He arrived there at approximately 2:30 AM. He did not stay long at the hotel, did not play any poker machines and did not consume any alcohol.

30. The Applicant left the hotel and travelled in the direction of a nearby shopping centre that had a 24 hour K-Mart department store. It was his intention to go to the store.

31. The victim of the Applicant’s offending, who was a 22-year-old woman, was driving to her boyfriend’s house in the vicinity.  It was approximately 2:40 AM. She came to an intersection and stopped her car with her indicator flashing signalling an intention to turn right into an adjacent street. Her evidence was that, whilst stationary with her right hand indicator flashing, she observed the Applicant’s white sedan travelling towards her. She waited for the Applicant’s vehicle to pass through the intersection before she made the right hand turn.

32. The Applicant was unknown to the victim. He came to a stop and flashed his high beam lights at her. She comprehended this act as an indication that she should make the right hand turn in front of the Applicant’s vehicle. She proceeded to make the right hand turn into the adjacent street. After completing the right hand turn the Applicant turned left and followed the victim.

33. The victim then headed towards her boyfriend’s residence nearby. She arrived at his residence and stopped her car outside. The Applicant having followed her also stopped his car not far behind the victim’s. The Applicant then got out of his car walked to the victim’s car and opened the driver’s side door. The victim saw the Applicant standing at the door, holding a kitchen knife in his hand and wearing a hooded jacket with the hood over his head. The Applicant then told the victim to move over. She responded firmly with the word “No”.

34. The Applicant then leaned into the victim’s car and removed the keys from the ignition. The victim got out of the car and walked away from the Applicant. The Applicant said to the victim “Get into my car”. She responded with the word “No”. The victim then told the Applicant that she had texted her boyfriend and he would be out soon. The Applicant then pushed the victim against the rear passenger side door area of her car and held the knife near her throat. He said words to the effect of “Be quiet or I will cut you”, or “I will slice you”. It was this conduct that formed the basis of the charge of threatening to inflict serious injury.

35. The victim then grappled with the Applicant and was able to get possession of the knife. Just after the victim obtained possession of the knife, her boyfriend who had heard yelling outside his residence, came into the front yard and shouted at the Applicant. The Applicant then backed away towards his car. The victim then demanded that the Applicant give her the keys to her car and he threw the keys to her. After throwing the keys to her, he got into his car and drove off.

36. The conduct of following the victim from the intersection until the time he drove away from her boyfriend’s house was found to form the basis of the charge of stalking.

37. Not unsurprisingly, the victim and her boyfriend recorded the Applicant’s vehicle registration number. Police were called and soon thereafter attended at the Applicant’s residence. They observed that the Applicant’s car bonnet was warm. A grey “hoodie” was seized. He was arrested and conveyed to the Narre Warren Police Station for an interview. At the time of or shortly after his arrest, the Applicant’s wife who was awoken by the police presence in the house, fainted and after being revived was observed by the police to be crying uncontrollably.[4] The Applicant’s wife gave evidence that she collapsed at the time and went into complete shock. She said it was so traumatic that it required the police to call an ambulance.

    [4] The statement of a Senior Constable who attended at that time at page 668 of the Supplementary G-Documents is referred to.

38. After his arrest, a tape-recorded interview was conducted by the police. The Applicant repeatedly denied any involvement in the incident with the victim. He also falsely stated that he had not been in his car later than 5 PM on the evening of 5 November 2012.

39. The Applicant was charged and remanded in custody. He remained in custody until he was granted bail at the conclusion of a contested committal in May 2013.

40. The Tribunal notes that, although the offending occurred in November 2012, the Applicant was only sentenced in July 2014 following a somewhat unconventional history. The Applicant was presented for trial on several charges. After losing a number of preliminary applications, he entered a plea of “guilty” to a negotiated indictment of the charges of stalking and making a threat to inflict serious injury. Soon afterwards, the Applicant sought leave to withdraw his plea of guilty and plead not guilty. The consequences of this attempt to change his plea were that a hearing occurred before Judge Meredith in which the Applicant’s former counsel and instructing solicitor, and the Applicant himself, gave oral evidence. The application was unsuccessful. The matter then proceeded as a plea and sentence.

41. The Applicant had been remanded in custody from the time of his arrest on 6 November 2012 for 178 days (approximately six months). He was sentenced to approximately a further two months making a total term of imprisonment of eight months. A Community Corrections Order was also imposed for 12 months, requiring the Applicant to perform 100 hours of unpaid community work[5]. There were further terms concerning assessment and treatment for alcohol abuse or dependency together with a mental health assessment. Importantly, in the context of this application, there was a provision that the Applicant must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager of Corrections Victoria, including a Violence Intervention Program. The evidence before the Tribunal was that the Applicant complied satisfactorily with the terms of the Community Correction Order in every respect.

    [5] The precise terms of the Community Correction order are referred to. They are contained in page 122 to 123 of the G documents.

42. There are several reasons why the Applicant’s offending must be classified as serious within the meaning of Clause 11. 1. 1 of Direction 79.

1. The offending was violent. The victim, a 22 year old woman, was entitled to go about her business without interference. She was vulnerable. The persistence of the Applicant in following the victim in the early hours of the morning and his aggression towards her were apparent. This included opening the victim’s driver side door; holding a knife in the commission of the offending; telling her to move over;  removing the keys in the ignition; pushing the victim against her vehicle and holding the knife at her throat; and finally, of course, making the threats to cut or slice her. The victim made a statement which spoke of the anxiety and fear which the Applicant’s offending cause her. Collectively, these facts fall within the definition of serious offending within the meaning of Clause 11. 1. 1 (a) of Direction 79.

2. Similarly, the facts as established are crimes of a violent nature against women which Clause 11. 1. 1 (b) of Direction 79 views very seriously regardless of the sentence imposed.

3. The sentence imposed by the court is another factor that the decision-maker must have regard to under Clause 11. 1. 1 (f) of Direction 79.

4. Another factor which the Tribunal considers is relevant in determining the seriousness of the Applicant’s offending is the fact that, as noted by the sentencing judge in his reasons, the maximum penalty for these offences are 10 and 5 years imprisonment for stalking and making a threat to inflict serious injury respectively.

5. The overall tenor of the remarks of the trial judge in his Reasons for Sentence reflect the gravity and seriousness of the Applicant’s offending. They do not warrant reproduction in these reasons. However, the judge did observe that the Applicant’s conduct is very concerning. An observation that the Tribunal completely agrees with after having considered all of the material.

6. In these circumstances, the Tribunal finds that the Applicant’s offending must be categorised as very serious. Therefore, this consideration weighs against the Applicant.

   THE RISK TO THE AUSTRALIAN COMMUNITY SHOULD THE APPLICANT COMMIT FURTHER OFFENCES OR ENGAGE IN OTHER SERIOUS CONDUCT.

7. The language used in Clause 11.1.2 of Direction 79 is referred to in its entirety for its full force and effect. However, there are several aspects to the Clause that warrant consideration. Clause 11.1.2 (1) provides that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Clause 11.1.2 (3) should have regard to, cumulatively, the factors identified including, amongst other things, the likelihood of the non-citizen engaging in further criminal or other serious conduct taking into account: information and evidence of independent and authoritative sources on the likelihood of the non-citizen reoffending; and evidence of any rehabilitation achieved by the time of the decision, giving weight to the time spent in the community since the most recent offence; and the risk of harm in the context of the purpose of the intended stay; and the type of visa being applied for.

8. The Tribunal observes that in Clause 11.1.2 (1) of Direction 79 it refers to the decision-maker considering whether the noncitizen represents “an unacceptable risk”. Clause 11.1.2 (3) refers to “the risk to the Australian community”. There is some tension between these two terms. An unacceptable risk carries with it a higher threshold compared to a “simple” risk.

9. The Applicant contends that there is no risk of him engaging in further criminal conduct in Australia. He relies on several grounds to justify this contention.

10. The starting point of this contention is that prior to the events of November 2012 he had an unblemished criminal record. He had been in Australia for six years without committing any offences.

11. He then points to the fact that there is what he describes as evidence of ongoing rehabilitation since the events of November 2012. The sentencing judge stated in his reasons that having regard to the whole the material he was satisfied that the Applicant’s “rehabilitative prospects are good”. The judge also noted in his reasons that the Applicant’s rehabilitation had been ongoing.

12. Whilst on remand the Applicant undertook courses which advanced his rehabilitation. Those courses were Mood Management Program Completion Advice and Problem Solving Program Completion Advice.

13. After his conviction and sentence, whilst in custody at the Beechworth Jail, the Applicant undertook further courses in:

    (a)Apply First Aid;

    (b)Anger Reduction Program;

    (c)Release Related Harm Reduction Program; and

    (d)Stress Reduction Program.

14. The Applicant, as noted earlier, complied with all the conditions of his Community Correction Order; including his reporting obligations, assessment, treatment and testing. The mental health assessment requirements and undergoing all the courses required which addressed the factors relating to his offending.[6]

    [6] The precise obligations cast upon the Applicant by the Community Correction Order are referred to and are located at page 122 of the G Documents.

15. Another factor that the Applicant placed reliance on in his submissions was that, in the intervening periods between his arrest and subsequent release following a contested committal, periods of imprisonment, three periods of immigration detention[7] and release into the community, he has been of very good behaviour and not committed any offences or engaged in any other conduct that has come to the attention of the authorities. (Extensive particulars of the periods in custody on remand, immigration detention are contained in the Applicant’s Statement of Facts, Issues and Contentions. Pages 7 to 10 in particular are referred to for details. There was evidence before the Tribunal which supported these contentions.)

    [7] It is appropriate to record that the Applicant had periods in immigration detention from approximately August 2015 to March 2016, January 2018 to May 2018 and 17 December 2018 to date. In between these periods and his period of imprisonment for his offending he was released into the community.

16. The Applicant gave evidence, in the form of witness statements and orally from the witness box, concerning his offending, subsequent conviction, periods in custody (whether in prison or immigration detention) and the effect it has all had on him and his family. He gave evidence of how he has had the opportunity to reflect upon his offending. There was further evidence from him about the consequences for his wife. He acknowledged the devastating effect it had on her including what he described as psychological damage. He expressed his contrition at the suffering that he had caused her on the evening of his arrest, when as noted earlier she fainted and cried uncontrollably requiring ambulance attendance; and the pressure since, where there have been periods of custody, detention and ongoing court cases.

17. The Applicant said this suffering and pressure included the fact that his wife and children were evicted from the family home because they could no longer pay the rent once he was in custody. His offending also had a direct impact on his wife and children’s housing as they had been saving up to buy a house and had hoped to own one by now. That hope now is nothing more than a dream. (A fact confirmed by his wife in her evidence.) There were the challenges that his children, with whom he shared a close relationship, faced by not having a father present. There was the shame that he felt for what he had done. He also stated that, one way or another, this matter has gone on for over six years and that it is continuing to have an adverse effect on his wife and family by reason of that time span.

18. Another dimension to the Applicant’s evidence, which was corroborated by several other witnesses who will be referred to later, was his involvement with the church and in particular a prayer group. He stated that since he had offended he became more actively involved in the church. After he was released from prison his attendance at both the church and a prayer group had become extremely regular. He stated that he started developing his faith in God when he was in prison. There was evidence particularly from a Catholic priest, Father Dance, confirming this fact. Father Dance was a most impressive witness. Other witnesses attesting to his involvement in the church who were credible included his wife, Mr De Larrazabal and Ms Delfino.[8] These witnesses also attested to their belief that the Applicant would not reoffend. The Tribunal accepts their evidence in its entirety. More will be said about their evidence later in these reasons.

    [8] In addition to the evidence of these witnesses from the witness box there were numerous statements and a petition from his church confirming or corroborating this evidence. That material has been read and taken into account by the Tribunal. There is no reason to doubt the authenticity of such references.

19. There were in evidence several reports from Ms Chu, a psychologist[9], prepared over some years. Unfortunately, Ms Chu did not give oral evidence before the Tribunal. Ms Chu had also given evidence to the County Court; evidence which was taken into account by the sentencing judge[10]. That evidence included a report to the effect that whilst the Applicant had been in custody on remand the inmates were very rough on him and he was too scared to speak up in case of worse ramifications. These observations were made in the context of the judge finding that the custodial environment had been frightening, challenging and difficult for the Applicant. The Applicant gave evidence that this experience is one he would not wish to go through again and has the effect of being a powerful incentive not to reoffend in any shape or form. The Tribunal accepts this evidence from the Applicant.

    [9] These reports were dated 26 March 2014, 11 July 2014, 27 October 2014, 19 October 2016, 11 January 2017, 3 July 2018 and 7 February 2019. It is evident from reading these reports that the Applicant has seen Ms Chu on many occasions over many years since his offending.

    [10] Paragraph 24 of the Reasons for Sentence on page 117 of the G documents

20. The Respondent contended that Ms Chu’s evidence should not be allocated significant weight for two reasons. Firstly, that was no evidence that Ms Chu is a clinical psychologist, which would be preferable in terms of the weight that the Tribunal would ascribe to her report. Secondly, that because she did not attend to give oral evidence, the Respondent was denied the prospect of cross-examining her and was therefore unable to test her conclusions[11]. The Tribunal was prepared to find that Ms Chu is a psychologist who is suitably qualified in the circumstances[12]. However, it accepts the argument to the extent that it does limit the weight that it places on her report as she was not available for cross-examination. Subject to these provisos however, it should be observed that Ms Chu expressed an opinion that the Applicant has been fully rehabilitated, is of no risk to society, and on the contrary would contribute to its betterment. The Tribunal is prepared to accept this opinion. However, it must have less value than it would, had she been available for cross-examination.

    [11] An explanation was offered by Ms Chu in her report of 7 February 2019 that she was unavailable to attend at the Tribunal on the days that this matter was listed.

    [12] In her statement of 7 February 2019 she states that she has been a registered psychologist in private practice and a member of the Australian Psychology Society for the past 11 years. She practices from a medical group that appears to provide a range of services including that of doctors and other healthcare professionals in Hallam.

21. The Respondent acknowledges that the Applicant has not reoffended since being released from prison. There was also no serious challenge to the contention that he had an unblemished criminal record before his offending, or that he had otherwise been well behaved when in prison or immigration detention.

22. The approach adopted by the Respondent was to look objectively at the Applicant’s conduct at the time of his offending. The Respondent emphasised his denial to police of his involvement in the offending, which was a false denial. The Respondent also identified the subsequent attempt to change his version of the events, both in terms of contacting the police and making a further statement, and the contents of what may be described as inconsistent statements in his submissions on 11 February 2019.

23. The Respondent relied upon other factors including the observations of the sentencing judge. There was also the fact that the Applicant continued to deny that he had used a knife in the course of his offending notwithstanding the finding of the judge. This was indeed the consistent theme adopted by the Applicant in his evidence before the Tribunal, except for the fact that he stated he had to accept the judge’s findings. The Respondent categorised this as a very serious crime which was committed (undoubtedly it was), about which he remains in denial.

24. Therefore, the Respondent contended that should the Applicant reoffend, the nature of the harm that would be caused to the Australian community may be very serious, taking the form of significant physical and psychological harm. The Respondent submits that there is a real risk of such reoffending occurring which would cause very serious harm and therefore it is unacceptable within the meaning of the language used in Direction 79. Accordingly, this factor should be assigned heavy weight in favour of affirming the Reviewable Decision.

25. Some observation should be made about the Applicant’s evidence. He did, as is correctly contended by the Respondent, seek to give a different account of the facts of his offending than those referred to by the sentencing judge. He did, however, say he accepted his crime and accepted responsibility for the findings made by the judge. He also readily conceded in the witness box that he did not tell the truth to the police when he was questioned at his house at the time of his arrest and subsequently interviewed at the police station. He conceded that he had been afforded the opportunity to obtain legal advice by the police[13]. He acknowledged he was told by that lawyer (who it appears was a lawyer of considerable experience in the practice of criminal law) to cooperate. Because of the lies, he stated he didn’t get bail, or it was one of the reasons he didn’t get bail. He did point out that he was charged with far more serious offences which were ultimately dropped, following his committal and the negotiated plea that was entered into between the prosecution and the Applicant’s lawyers.

    [13] He acknowledged in his evidence that the police had treated him extremely fairly at all times whilst he was in their custody at the Police Station following his arrest. He was given ample opportunity to, and did speak to, a suitably qualified lawyer experienced in criminal cases.

26. He was consistently probed in cross-examination as to what his explanation was for his offending and why he behaved in the way he did. Time and again, he stated he did not have any explanation, nor any excuses. He acknowledged he should not have followed the victim’s car. He did give evidence that some months prior to the incident concerned he had been involved in an accident in which his wife and daughter were injured and conveyed a hospital in an ambulance. He postulated that this event was more likely than not the trigger that prompted him to do what he did. In other words, it was an adverse reaction to the victim’s bad driving or what he considered to be her bad driving[14]. The Applicant’s wife, who the Tribunal finds a witness of truth, and for that matter a most impressive witness, gave evidence that there had been a car accident some months previously whilst her husband was driving, in which she and her daughter were injured when another car “T boned” their car and she and her daughter were taken to hospital. They remained in hospital for over a day and had to wear surgical collars upon their discharge.

    [14] There was in evidence before the Tribunal a psychological report dated 11 July 2014 from Stephanie Chu in which she refers to the effect of the previous car accident on the Applicant. She observed that: "The prior car accident seemed to have triggered a defensive response from the patient."

27. There is no doubt that some aspects of the Applicant’s evidence was puzzling. He is an intelligent man. His behaviour at the time of his offending and with the police does not make much sense. His denial of what occurred on the night, such as that he did not use a knife, and his alternate version of the events is also difficult to follow. In his evidence he sought to explain his behaviour with the police on the grounds that they told him a woman had been attacked by someone and an attempt made to kidnap and rape her. He said he did not do that. He said it was a different story to what he had done with what the police were investigating at the time. The Tribunal can only speculate. One can argue, as the Respondent contends, that he lacks an insight into his offending. The Tribunal concludes that, notwithstanding this aspect of his evidence that was not particularly satisfactory, he did appreciate the gravity of his offending. More likely than not, his offending was a momentary lapse of judgement;[15] probably as a reaction to the accident that he had previously had where his wife and daughter were injured, which he is very loath to admit.

    [15] Sometimes referred to as an incident of "road rage".

28. On the other hand his evidence concerning the regrets that he has concerning his offending, his efforts to rehabilitate, and his recognition of the appalling effects that his offending had on his wife and children, was on the Tribunal’s assessment, genuine and credible. Undoubtedly, his time in jail was not easy for him and has given him the opportunity to think deeply about the mess that he had got himself, his wife and family into. There have been steps taken towards his rehabilitation both whilst in custody and upon his release. He has completed the courses and complied with the terms and conditions of the Community Corrections Order.

29. There is also the evidence of the various witnesses both those who gave evidence orally and those by statement only, or a combination of the two. Fr Dance, a Catholic priest, provided both a letter of reference and oral evidence. As noted earlier he was a most impressive witness. He did not, as some clergyman do, view his parishioners through rose coloured glasses. He had been given a fairly accurate account of the Applicant’s offending. Certainly, it was sufficient an explanation to convey the seriousness and gravity of such offending. He concluded that he did not consider the Applicant a risk to the community. He also knows the Applicant’s wife and children and said that, from what he has seen and observed of them, he is confident that the Applicant is not a threat to society. He observed that the Applicant has a deep commitment to his family.  Fr. Dance is also a clinical psychologist who has worked in various parts of the world including Brooklyn in New York City and Union City, New Jersey[16]. He opined that from his experience he was confident that the Applicant would not reoffend. The Tribunal accepts his evidence.

    [16] He has been a Catholic priest for over 50 years.

30. Ms Delfino gave evidence in the form of a statement and from the witness box. She is a counsellor and pastoral care worker as well as a member of the church community attended by the Applicant and his family. The Applicant and his family were described as faithful, generous and committed members of that church community. She was also an impressive witness and one of the utmost credibility. She has, it is fair to say, been a pivotal figure in arranging for assistance for the Applicant’s wife and four children whilst he has been in detention from time to time. Ms Delfino has, for some time, arranged within the church community, assistance for the Applicant’s wife and family including cooking, cleaning and laundry. She said in her evidence they try to assist with whatever the household needed. The Applicant’s wife, the sole bread winner, was working at all relevant times as a nurse in an aged care facility to sustain the income of the family. She was given a fairly accurate account by the Applicant of his offending. She observed that the Applicant had not denied to her that he had made an error of judgement. Ms Delfino concluded that the Applicant is not a risk to the community. She said she believed that he is able to contribute to the community, is truly remorseful and unlikely to reoffend.

1. Mr De Larrazabal gave evidence. He is a head of a church prayer community of which the Applicant and his wife are members. He stated that the church community has, during the period of the Applicant’s detention, arranged for a group of approximately 20 volunteers who have a roster to attend the Applicant’s home to provide assistance to his wife and children, particularly whilst his wife is at work. He was familiar with the nature and seriousness of the Applicant’s offending. He gave evidence that the Applicant and his wife are loyal and active members of the church community prayer group. He spoke of the Applicant as someone who is dependable and makes a contribution of his services to the church in any way he can. He stated he found the Applicant to be a truthful man. It was in this context he gave evidence that it was puzzling to him that the Applicant had offended. He stated he could only conclude that it was a one-off occasion. He expressed an opinion that the Applicant has rehabilitated himself. The Tribunal found him to also be a credible witness and accepts his evidence.

2. The Tribunal also makes some observations about the Applicant’s wife and her evidence. She was an impressive witness and one of complete credibility. Indeed, this was conceded by the Respondent. The Tribunal accepts her evidence. One could not help but feel complete and utter sympathy for her. Undoubtedly, she is a kindly and decent woman who should not have had to endure what she has, as a result of her husband’s actions, over more than six years. She had also made several statements in support of her husband. She has consistently supported her husband through what have obviously been devastatingly stressful circumstances over a six year time span. She now has four children and is clearly bearing a significant burden as a result of the Applicant’s offending. During her time in Australia she has studied and qualified as a nurse. She works as a nurse in an aged care facility in Cranbourne which has approximately 200 residents. She is evidently highly regarded by her employers as a dedicated and reliable employee in her chosen profession.

3. The attributes of her husband were that of a devoted and loving husband and father, whom she had been married to for many years[17]. His offending was completely out of character. She said he is remorseful and regrets his actions. She believed he would not offend again. The experience of being separated from her and his children has had a devastating effect on him.

   [17] She said she had known her husband for approximately 20 years.

4. The shock of the events of the night of the Applicant’s offending on her has been previously recounted. She told of going to court on several occasions throughout the times the Applicant appeared. She stated she just could not make any sense of it. She stated that there must have been something wrong on the part of her husband. It was not like him to offend in the way he did. She even reflected on whether she should have cared more about her husband than her two children (at that time). She stated that her husband regrets his offending every day of his life. The effect of his offending has been also to prevent them from buying a house which has been a profound disappointment to her.

5. She gave some evidence in response to questions in cross-examination about the risk of the Applicant reoffending. She said she understood fully the view that the Applicant is a risk. She also said she acknowledged that the risk is likely to be highlighted because of the Applicant’s inability to explain his behaviour on the night. She did speculate that the accident they previously had may have been a factor behind the Applicant’s offending. Otherwise, she said she could not make any sense of it at all, as it is completely out of character for him. As noted earlier, she gave evidence about being evicted from the family home because she couldn’t afford the rent. This was during a period when she was studying to become a nurse. She was proud of completing a nursing qualification, which she achieved with high distinctions. She explained how she works as the duty nurse in one of the wings at the aged care facility, which provides high-level palliative care.

6. There were numerous other witnesses who gave evidence by way of letters or statements attesting to the Applicant’s otherwise good character, remorse for his offending, devotion to his wife and children and his prospects for rehabilitation[18]. In most cases, the authors of these letters or statements also opined that the Applicant posed no risk of reoffending. [19]They have all been read and taken into account by the Tribunal.

   [18] For the avoidance of doubt the Applicant tendered two bundles of documents containing statements and/or letters. The first bundle exhibit "A 1" included some 60 statements or letters from various persons. These statements and letters all supported the Applicant in the form mentioned. The second bundle exhibit "A 2" consisted of six documents including three statements in support of the Applicant. Once again these statements supported the Applicant in the form mentioned. It is not necessary to detail the contents in these reasons other than to note the substance of the contents, and that they have been considered by the Tribunal.

   [19] Included in exhibit "A 1" was a petition signed by approximately 42 parishioners of the church that the Applicant and his wife attend. The covering letter accompanying this petition stated that the petitioners considered that the Applicant "is certainly not a risk to Australia in 2019”.

7. When  the Tribunal considers cumulatively the matters  that a decision-maker is obliged to have regard to, as required by Clause 11.1.2 (3) of Directions 79, the Tribunal concludes that the likelihood of the Applicant engaging in further criminal or other serious conduct is very low.

8. His behaviour was out of character. The Tribunal accepts that the periods of custody and detention for more than six years have had a salutary effect upon him. He appreciates that if he offends again, no matter what the offence, given his history there is the risk of both a custodial sentence and the prospects of his immigration status being placed under scrutiny again.

9. There is also the effect on the Applicant’s wife and family, which clearly he profoundly regrets. The Tribunal accepts he does not want to expose them to anything like this in the future. The Tribunal accepts that the Applicant comprehends the effect it has had on one his children in particular, his son who has clearly suffered some level of difficulty in his schooling as a result of not having his father present.

10. Whilst she did not give evidence before the Tribunal, the Tribunal has no reason to doubt the contents of the several reports from Ms Chu which indicate that the Applicant has rehabilitated himself and is no further risk to the community.

11. The Tribunal accepts the evidence of the three witnesses Father Dance, Ms Delfino and Mr De Larrazabal in terms of the Applicant’s remorse, appreciation of his offending, and risk of reoffending.

12. He has, before and since his offending, led a blameless life. The offending appears to have been a “one-off”.

13. The courses that the Applicant undertook in custody, and the adherence to the terms of his Community Corrections Order, indicate that he has a desire to, and indeed did, rehabilitate himself.

14. Finally, there is the love and support that was evident from his wife which, the Tribunal has no doubt, would be a powerful incentive for the Applicant not to reoffend in the future. Additionally, the Tribunal considers that, given the experience that the Applicant’s wife has been through for more than six years, she will keep him under a heightened level of scrutiny to the maximum extent possible to ensure that he does not reoffend. She is, and will remain, a powerful influence for good in his life.

15. Therefore, taking into account all these facts, including the evidence of several of the witnesses whom the Tribunal considers to be sufficiently independent and authoritative within the meaning of Clause 11.1.2 (3) (b) (i) of Direction 79, the Tribunal concludes that there is a very low risk of the Applicant reoffending. This Consideration weighs in favour of the Applicant and setting aside the Reviewable Decision.

    BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA ARE AFFECTED BY THE DECISION.

16. The Applicant has four minor children:

    (a)Nelly, who is aged 14 years;

    (b)Andrew, who is aged 11 years;

    (c)Grace, who is aged 4 years; and

    (d)Chloe, who is aged 1 year.

17. The Tribunal accepts on the preponderance of the evidence before it that the Applicant has a strong relationship with his children. This relationship is particularly strong with the older children who have the capacity to recognise and develop relationships by reason of the passage of the years. It also accepts the Applicant is a devoted father.

18. Notwithstanding his offending and periods of incarceration, the preponderance of the evidence demonstrates to the satisfaction of the Tribunal that the Applicant has played a positive parental role in the children’s lives and will continue to do so wherever they may reside.

19. The impact of the Applicant’s prior conduct arising from his offending on the minor children has been well recounted to some considerable effect already. Each individual child has had special or particular reactions to these events which will also be canvassed further in these reasons.

20. There was much evidence about the children given by the witnesses referred to previously in these reasons. There was also most impressive evidence given by Mr Gleeson, the principal of the primary school attended by Nelly and Andrew. Mr Gleeson is a dedicated and enthusiastic school principal who strives to ensure that all pupils attending his school achieve the best possible education. He also described how the school has a well-developed program for identifying any difficulties that its pupils may be experiencing and taking whatever steps are necessary to address those difficulties.

21. Mr Gleeson described Nelly as a “terrific girl” who was dedicated to learning. According to him, she is “a great girl, academically gifted and good at sport”. He did observe that she does not speak French and felt that if she was required to return to Mauritius she would struggle unless the curriculum was conducted in English. Overall, he felt that a return would have a negative effect on her education. He did consider that it would be probably easier for her on return than it would be for Andrew. His observations concurred with the evidence of several other witnesses, namely that Nelly is progressing well at Avila College[20]. Another factor he identified arising from her potential return to Mauritius is that apparently she has a close circle of friends who have been very supportive of her throughout the difficult times that her family has experienced. He described this as important for her well-being. If she was required to leave Australia this would have a detrimental impact upon her.

    [20] A school that he described as an excellent girls secondary school. Indeed both his daughters attend at the school.

22. There was also evidence from Nelly’s primary school in 2013 that she had not been coping at all well with the separation from her father. She apparently became depressed and an alarming incident occurred.[21] Her school referred her to an appropriate healthcare official.

    [21] Indeed, in 2013 both Nelly and Andrew were referred by their primary school’s Student Wellbeing Leader, to healthcare professionals arising from the difficulties they were experiencing by reason of the separation from their father. The letters of referral are in document A 57 of exhibit "A 1".

23. The Applicant’s wife gave evidence of the impact of the absence of the Applicant since his offending on their children. She also gave evidence of the potential impact, as she sees it, on the children in the event that they were required to return to Mauritius. In both instances her evidence was of detriment to the children, psychologically in the home environment, and with respect to their schooling. She emphasised in her evidence the fact that the children only know life in Australia. The Tribunal accepts her evidence concerning these matters.

24. Nelly herself made a statement to the Tribunal that is compelling reading. She presents as a thoughtful and educated girl with a very bright future in life. She recounts the relationship she has with her father, which is a strong one, and what it means to her. It should be recalled that she arrived in Australia before she was 2 years of age. She describes the fact that all of her memories are of Australia and there is no memory on her part of anything to do with Mauritius. She also recounts the responsibilities that she has undertaken in the absence of her father and the burden that it is placed upon her.

25. There was considerable evidence before the Tribunal concerning the effect of the Applicant’s absence on Andrew. Mr Gleeson stated that it is important that Andrew have some consistency in his schooling and that he is currently receiving this at the school he attends. He described the necessity for Andrew to have absolute consistency and stability in his life. He has developed a very good relationship with his current classroom teacher. Mr Gleeson also recounted how Andrew sometimes came to school quite sad and frustrated. This was consistent with the evidence of Nelly who said that in the absence of her father Andrew turns into someone quite different. She said that he rarely leaves his lightless room and was constantly playing on the Xbox. He tends to get angry very quickly and is not able to do his best work.

26. Mr Gleeson also confirmed that last year the demeanour of Andrew was of a child who was sad and angry. He explained that the school started a process to enable Andrew to see a psychologist last year. Such consultations apparently occur once a week or fortnight, depending on when it can be arranged, and this did assist Andrew to make considerable progress.

27. Similar evidence was also given by Ms Delfino, who stated that when she conducted a counselling session with Andrew on 16 January 2019 he was in his room and did not want to go out. Andrew has recounted to her that he has trouble sleeping at night as he is afraid.[22]She said that she was told that he rarely leaves his room and stays inside sleeping or playing web games all the time. Other caregivers have apparently noticed that he is sullen, sulking, angry and disrespectful.

    [22] He stated that some of this emerged from witnessing his father being removed by immigration officers in December 2018. Nelly in a very moving part of her statement expressed similar sentiments. She observed that the images of her father being taken out of the house whilst her mother was "on the floor screaming" stays at the back of her mind and will not leave. One can well imagine how minors would be traumatised by such an experience.

28. Andrew was also in 2013 referred for psychological therapy by his primary school because he was apparently not coping with the absence of his father at all well.

29. The Tribunal accepts that Andrew has, as Mr Gleeson indicated in his evidence, made some progress this year. Were he to be removed, as Mr Gleeson indicated, there would be significant dislocation and probably it would be greater for him than his sister. Mr Gleeson identified the loss of his friendship base and language issues. He would be removed to a foreign land and starting from a base of which he has no knowledge. It should be recalled that Andrew is an Australian citizen. One of the witnesses, who did not give oral evidence but made a statement, mentioned that her son was Andrew’s best friend and concluded that he would be “affected tremendously” if he lost a friend that he grew up with.[23]

    [23] The relevant statement is document "A 5" to exhibit "A 1".

30. Mr Gleeson opined that another major issue was Andrew’s maintaining his friendship base. Having all his friends around him has given Andrew normality in his life. He questioned how well Andrew would cope if he was required to return to Mauritius.

31. The impact of the Applicant’s absence on Grace and Chloe is, on the evidence, more limited. The Tribunal accepts that Grace has formed a relationship with her father and is aware of his absence. She probably does not understand fully the reasons why. Particularly, given the fact that the Applicant’s offending occurred prior to her birth.

32. The Tribunal concludes, considering all the evidence before it as outlined above, that the best interests of all the minor children of the applicant are served if they remain in Australia. The two elder children are likely to suffer significant detriment both in their educational experiences and outcomes and probably in terms of social adjustment. Collectively, this consideration weighs strongly in favour of setting aside the reviewable decision.

    EXPECTATIONS OF THE AUSTRALIAN COMMUNITY.

33. Clause 11. 3 of Direction 79 specifies, amongst other things, where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the trust placed in them (being the expectation that they will obey Australian laws) it may be appropriate to refuse the visa application.

34. A consideration of a clause in similar terms to this clause in (the previously applicable) Ministerial Direction No 65 by Mortimer J in YNQY v Minister for Immigration and Border Protection[24] held that this paragraph is in effect a deeming provision about how the executive government wishes to articulate community expectations, whether or not there is any objective basis for such a belief. In substance this consideration does not favour any applicant.

    [24] [2017] FCA 1466 at [76].

35. Therefore, this consideration weighs in favour of affirming the reviewable decision.

    INTERNATIONAL NON-REFOULEMENT OBLIGATIONS.

36. There has not really been a contention made by the Applicant that he would be at risk of a specific type of harm as contemplated within the meaning of clause 12.1 of Direction 79.

37. There is some material that indicates that because Mauritius is a small nation that ill- founded rumours are circulating there concerning the Applicant’s offending. There has even apparently been an anonymous letter sent to the Applicant’s parents stating that the local community where they live do not wish the Applicant to return and live there.

38. This evidence, such as it is, has little probative value. It certainly does not amount to or establish the existence of a risk of a specific type of harm as contemplated by Australia’s international non-refoulement obligations.

39. The Tribunal attaches no weight to this consideration.

    IMPACT ON FAMILY MEMBERS.

40. The next consideration is the impact of a visa refusal on immediate family members in Australia where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

41. The only member of the Applicant’s family whom this affects is his son Andrew; who, as it will be recalled, is an Australian citizen. The impact of the visa refusal on him has already been canvassed under the primary consideration of the best interests of minor children in Australia who are affected by the decision. Those reasons are referred to and repeated.

42. By reason of the matters canvassed above, concerning Andrew’s best interests, this consideration weighs heavily in favour of revocation of the Reviewable Decision.

    IMPACT ON VICTIMS

43. There was no evidence before the Tribunal enabling it to make a decision concerning this consideration. Therefore no weight will be placed upon it.

    IMPACT ON AUSTRALIAN BUSINESS INTERESTS

44. There was no evidence before the Tribunal enabling it to make a decision concerning this consideration. Therefore no weight will be placed upon it.

    CONCLUSION AND DECISION

45. The Tribunal acknowledges that the Applicant’s offending can only be described as serious. An innocent young woman is entitled to go about her business without being subjected to the stalking and threats to inflict serious injury that the victim was. It must have been traumatic for her. The Applicant’s conduct once the police became involved further reflects poorly upon him.

1. However, the Tribunal considers, on the extensive material available to it, that the Applicant has reflected deeply and seriously on the nature and seriousness of such offending and why it was wrong. The untold suffering and damage he has caused his decent wife and three children, through no fault of their own, has had an extremely deep and lasting impact upon him. He understands this notwithstanding the fact that he still is (to some extent at least) in denial as to what he actually did on the night in question. He has rehabilitated himself, as was foreshadowed by the sentencing judge, who in 2014 described his rehabilitative prospects as good.  The Tribunal accepts, after considering all the information and evidence provided to it including that from independent and authoritative sources, that there is a very low risk of the Applicant reoffending.

2. The best interests of his children who are all minors (including his son Andrew, who is an Australian citizen) in Australia weigh very heavily, for the reasons identified in favour of setting aside the Reviewable Decision.

3. Therefore, balancing the various primary and other considerations to which the Tribunal has referred, the correct or preferable decision in its view is that the Reviewable Decision should be set aside and remitted for reconsideration with the direction that the discretion in section 501 (1) be exercised in favour of the Applicant.

121.     

I certify that the preceding 120 (one hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member R. Cameron

................[sgd]............................

Associate

Dated: 25 March 2019

Dates of hearing:	27-28 February, 05 March 2019
Applicant:	Self-Represented
Advocate for the Respondent:	Mr D. Brown
Solicitors for the Respondent:	Australian Government Solicitor