Arthur and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2024] AATA 922

Arthur and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 922 (1 May 2024)

Division:GENERAL DIVISION

File Number(s):      2024/1179

Re:Oakley ARTHUR

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM KC

Date:1 May 2024

Place:Sydney

The decision under review is set aside and substituted with the decision that the cancellation of the applicant’s visa be revoked under s. 501CA(4)(b)(ii) of the Migration Act 1958 (Cth)

.............................[SGD]...........................................

Deputy President B W Rayment OAM KC

CATCHWORDS

MIGRATION – refusal to revoke mandatory cancellation – applicant is US citizen – committed sexual offences against children – whether removal from Australia would undermine suspended sentence – options for rehabilitation – decision under review set aside and substituted

LEGISLATION

Migration Act 1958 (Cth)

CASES

Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33

SECONDARY MATERIALS

Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA

REASONS FOR DECISION

1 May 2024

1. The applicant held a Class 85 Subclass 801 Partner visa, a permanent visa, which was the subject of mandatory cancellation on 16 March 2023.  The partner visa was not due to any relationship of his own, but presumably due to his mother’s status. She is married to an Australian citizen, the applicant’s step-father.

2. The applicant was born on 24 December 1991 and arrived in Australia aged 20 with his mother, his step-father and various siblings from the United States of America in 2012.

3. In February 2024 a delegate of the respondent decided not to revoke the cancellation of the applicant’s visa. The applicant now seeks review of that decision in the Tribunal. 

4. On 18 August 2022 the applicant pleaded guilty to one charge and was convicted by a jury  on three other charges. On one charge of maintaining a sexual relationship with a child, he was sentenced by the District Court in Queensland to four years’ imprisonment, and on the other three, he was sentenced to 9 months imprisonment, 18 months’ imprisonment and six months imprisonment, each sentence to be served concurrently. The judge ordered that the terms be suspended after he had served 18 months imprisonment, and that he must not commit any offence punishable by imprisonment within a period of four years if he were to avoid being dealt with for the suspended terms of imprisonment.  Assuming that he was on bail at the time of his trial, the imprisonment began at the trial date, he was eligible for release in February this year and was then taken into detention.

5. I heard the proceedings on 18 and 19 April so at the time of the hearing before me the applicant had served 18 months imprisonment and about two months in detention.  He described his time in prison as eye-opening, and said that if he reoffended and was now released, he would expect that the Minister might again cancel his visa, and he might then have great difficulty avoiding deportation. He said in answer to that question that he would expect nothing less.

6. Victim 1, with whom he had a consensual sexual relationship on around 20 occasions was aged 14 to 15. He was then about 20.  Victim 2 was the younger sister of victim 1, and she was also about 14 at the time he interfered with her, although their interference did not involve sexual intercourse. He was 27 years old at the time, and was significantly affected by alcohol when he offended. His own younger sister was also in the same bed, and she initially made a complaint about his having interfered with her as well, although she withdrew the complaint.  A statement she gave the police was tendered by the respondent.

7. After the offending with victim 2, and possibly with his own younger half-sister — although he claimed privilege when asked whether he had interfered with his own half-sister — his sexual activity with two — possibly three — underage girls suggests to me that he has a weakness for underage girls, and in answers before me he agreed that his attraction to young girls was at least partly based upon sexual attraction.

8. There is no doubt that the applicant does not pass the character test and  I turn to the provisions of Direction 99 which binds this Tribunal.

9. I note the principles providing a framework within which decision-makers should approach their task of deciding, inter alia, whether there is another reason to revoke the cancellation of the applicant’s visa as provided by s.501CA(4) of the Migration Act, 1958.

10. Clauses 8.1, 8.1.1 and 8.1.2 of the Direction deal with the matter of protection of the Australian community. I note clause 8.1(1).  As to the nature and seriousness of the applicant’s conduct to date, the matters I have described in [[6] above are of course very serious.  The applicant’s apparent attraction to under-age girls is particularly concerning.

11. As to clause 8.1.2 of the Direction, if the applicant repeats any of the conduct for which he was convicted, there is no doubt that significant further harm would be occasioned to individuals and the community. As to the risk of repetition, the applicant chose to undergo a course in prison which related to sexual offending and there is report of his cooperation in the course and of his attendance at the course. He began to seek counselling within a year before his trial but ran out of money, and was not provided with financial assistance by his mother or step-father.  He stated his intention to obtain a job which he has available to him in the IT industry, and said that he would engage with a counsellor if released. His mother who gave evidence before the Tribunal also referred to his intention to go to a counsellor. For his benefit, I note that he ought to provide the papers from this case, of which he has a copy to the counsellor.

12. In my opinion his rehabilitation is not complete, and employing a counsellor if he is released is very important. He has improved his own behaviour since his offending as to consumption of alcohol, according to several of his friends who gave evidence, as well as the applicant himself. Most of his sexual relationships have been with people of his own age, although of short duration.  He no longer resides with his parents and siblings, although he would visit them if released. He apologised to victims 1 and 2, for his offending.

13. His suspended sentence hangs over his head, and from that point of view, any question of his deportation must bear in mind that for more than three years, if he is released, any further conviction involving imprisonment will attract the balance of his four year imprisonment, according to orders made by the Queensland District Court. That will presumably not apply if he is returned to the United States.

14. As mentioned above, he found his imprisonment eye-opening. That will give him a further incentive to obtain treatment from a counsellor.

15. He frankly admitted his guilt for all offending of which he was convicted and said that his fear of imprisonment made him plead not guilty, which he says in retrospect he ought not to have done.

16. The next mandatory consideration is set out in clause 8.2, family violence. No primary evidence was called by the respondent in support of submissions about the alleged interference with the sister, and as noted above, the applicant claimed privilege when asked about it. The evidence in the case produced no more than a suspicion that he was guilty of such misconduct, and I am not satisfied that it occurred. Suspicion is not enough for the Tribunal to be satisfied of such a matter, as Brennan J pointed out in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 at 58 as first President of this Tribunal.

17. The next primary consideration is set out in clause 8.3 of the Direction, the strength, nature and duration of ties to Australia. The applicant has almost all his family in this country, including his mother, siblings, half-siblings and step-father. The mother and step-father and one of his half-siblings spoke of the effect which his deportation would have upon his family in this country.  His grandmother is in the United States, and one of his brothers returned there and now looks after his grandmother.  Also in Australia are cousins, aunts and uncles.  I heard from several of his friends, who spoke well of him, and who would miss him if he were deported.

18. His youngest sibling, a half-brother was called and spoke well of the applicant.    

19. He has not attained his majority, and although he and the applicant share common interests, and the applicant has been helpful to him in the past, he lives with both his parents, and cl. 8.4 of the Direction also applies to him, I consider that his evidence primarily supports the case made under cl 8.3 of the Direction. Nevertheless, I also find that it is in his best interests for the applicant to be released into the community by revoking the cancellation of his visa.

20. The remaining primary consideration  is set out in cl. 8.5, the expectations of the Australian community. These expectations are as stated by the Government in the Direction. They do not favour the applicant. And must, like all relevant considerations, be put into the balance  when a decision is made in the review.

21. As to the expressly mentioned other considerations mentioned in clauses 9, 9.1, 9.1.1, 9.1,2, 9.2, 9.3 and 9.4, only clause 9.2 is relevant because the applicant relied upon it in argument. There are no protection obligations owed in respect of the applicant and no evidence supports the application of the other clauses I have mentioned. I am not prepared to say that the applicant would have impediments if removed to the United States. He has two years of college education, an American passport recently expired, and a history of employment in Australia. No difficulty is shown to arise about his return to America, and he needs only a renewal of his passport. He has a mild American accent and he has a brother presently living there. There is no evidence that his Australian convictions would make him unable to be employed in his country of origin, although there is a possibility that it would affect him adversely in that regard.

22. I have already mentioned in [13] above one other consideration which seems to me to be relevant in considering the correct or preferable decision. If the applicant were deported, I have no evidence or any reason to anticipate that a repeated offence or other criminal conduct in the United States would result in the applicant serving his four year sentence or the balance of it. Thus, if he were deported now, the District Court sentence would be undermined. The Minister seems to  asks for his deportation, not expressly for him to be kept in detention for some period, and then deported. Part of the consideration of this (unspecified) other consideration involves the fact that the applicant has not been given rehabilitation in detention, and there is no reason to expect that to change if his detention continues. The sentencing judge intended his sentence to be a warning to him if he should reoffend.  That warning may very well be a protective factor, and the applicant clearly fears a return to prison.

23. If he is released, there is reason to anticipate that he will be rehabilitated in the community. That would be good for him, the community and his family.  In my opinion, that matter, and the question of his ties to the community outweigh the importance of the other considerations to which I have referred.

24. The cancellation of the applicant’s visa will therefore be revoked.

I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of

.................................[SGD].......................................

Associate

Dated: 1 May 2024

Date(s) of hearing:	18 & 19 April 2024
Applicant:	In person
Solicitors for the Respondent:	Ms G Ho, Clayton Utz