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

[2020] AATA 5579

Baradas and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5579 (23 December 2020)

Division:GENERAL DIVISION

2020/6081File Number(s):      

Ruel Lizardo BaradasRe:  

APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Senior Member Dr N A Manetta
 

Date:23 December 2020

Date of written reasons:         27 January 2021

Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the applicant’s visa be revoked.

..................[Sgnd].........................

Senior Member Dr N A Manetta

Catchwords

Mandatory cancellation of visa under s501 of Migration Act 1958 – Applicant convicted of two counts of unlawful sexual intercourse – Primary considerations – extremely low risk of reoffending - interests of minors - Decision under review set aside and decision substituted that visa cancellation be revoked

Legislation

Migration Act 1958 (Cth)

Direction No. 79 issued under s 499 of the Migration Act, 1958

Cases

LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3356

FYBR v Minister for Home Affairs [2019] FCAFC 185

REASONS FOR DECISION

Senior Member Dr N A Manetta  

1. After I delivered my oral decision and reasons, I received a request for written reasons, which I now publish.

2. This is an application by Ruel Lizardo Baradas seeking a review of a decision of the respondent’s delegate dated 1 October 2020. By this decision, the delegate declined to revoke the mandatory cancellation of Mr Baradas’ visa. The visa had been earlier cancelled mandatorily under section 501 of the Migration Act 1958 (“the Act”). The visa was properly cancelled under this section given the two counts of unlawful sexual intercourse perpetrated by Mr Baradas upon his vulnerable victim in 2017.  In relation to these counts, he was required to serve two years full-time in gaol.

3. Mr Baradas had requested that the mandatory cancellation of his visa be revoked, but, as I have noted, the delegate refused the request in his or her discretion.  Mr Baradas has now filed an application in this Tribunal seeking a review of that refusal.

   STATEMENT OF TASK AND CONCLUSION

4. I must decide whether to affirm the decision under review or to set it aside.  In considering an application such as this, the Tribunal proceeds to determine the merits de novo. This means that I must decide the matter afresh on the evidence adduced before me. I may set aside the decision under review notwithstanding the absence of any discernible error in the delegate’s reasoning if that is the correct or preferable decision; equally, I may affirm the decision under review if that is the correct or preferable decision to reach on the evidence adduced before me notwithstanding the presence of an error in the delegate’s reasons. At the hearing before me, Mr Baradas represented himself; Ms Thompson appeared for the respondent.

5. I have decided to set aside the decision under review and to substitute a decision that the cancellation of Mr Baradas’ visa be revoked.   I now set out the background facts and my reasons for this conclusion.

   BACKGROUND FACTS

6. Mr Baradas was born in 1983 in Manila in the Philippines and is a citizen of that country. He was, accordingly, 37 at the time of the hearing before me. He arrived in Australia from the Philippines in 2006 with his wife, who held a student visa at the time. They arrived with their two-year-old son. She was enrolled in a business management course; he was permitted to work as her spouse for some 20 hours a week.   Mr Baradas first found work as a cleaner and then became a produce assistant in a Woolworths supermarket, where he worked, as I understand his evidence, for some one-and-a-half to two years. Thereafter he obtained a position in a café and after that in a restaurant.

7. His most recent employment was in a hotel called “Mantra Pandanas”. He was first employed there in 2013 and worked there for some five to six years. He began as a “houseman” and then progressed to a supervisory role in the housekeeping department. His wife also worked at the hotel, in the front office as a guest-relations officer. She continues to work there, although her position is casual at the moment since the pandemic has had an adverse impact on bookings.  I note at this juncture that on 23 June 2017 Mr Baradas was granted permanent residency status.

   Criminal Offending

8. I now turn to consider Mr Baradas’ offending. Mr Baradas was convicted of two counts of unlawful sexual intercourse which took place in the Mantra Pandanas Hotel on 16 October 2017.  The offending is described in the sentencing Court’s remarks[1].  The victim was a Taiwanese woman who had arrived in Australia just four days earlier on a 12-month working visa. She was clearly a vulnerable person who had a very limited understanding of Australian culture and English as the sentencing Court found. She wished to work at the Mantra Pandanas hotel as a room attendant.

   [1] Exhibit R1, page 262ff. 

9. The sentencing remarks record that Mr Baradas rang the victim and persuaded her to come to the hotel, ostensibly for a job interview. Mr Baradas attempted, as the Court found, to flirt with her, and he made suggestive remarks. When she did not respond to his innuendo and suggestions, Mr Baradas proceeded to a series of acts culminating in the commission of unlawful sexual intercourse on two occasions in succession.  The sentencing Court described the circumstances of the offending in some detail[2] .  I need not set out the Court’s account of the offending, but I have considered it carefully.

   [2] see Exhibit R1, pages 262-3.

10. The sentencing Court’s unequivocal assessment was that Mr Baradas knew the victim did not consent to his actions. I note that the matter proceeded to trial and was not the subject of a guilty plea.

11. These two counts of unlawful sexual intercourse constitute Mr Baradas’ only offences, but they are extremely serious.  In the event, the Court sentenced Mr Baradas to concurrent sentences of three-and-a-half and five years respectively on the two counts. The sentences were to be suspended after two years in jail had been served.  I note that the Court found that the prospects of Mr Baradas reoffending were, and I quote,  “extremely low”[3].

    [3] Exhibit R1, page 267.

    DIRECTION 79

12. The delegate was required to apply so-called Direction 79 (“the Direction”) issued under s 499 of the Act. The Tribunal is also bound to apply the Direction. In another decision, LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3356, I set out the background to the Direction, and I quote what I put in that case at

    [24] to [28]:

    “24 I now turn to apply Direction 79. The Direction consists of a preamble and Parts A, B, C. Of these parts, Part C is relevant and it identifies the considerations that I should take into account in determining whether to exercise the discretion to revoke the mandatory cancellation of the applicant’s visa. The Preamble makes it clear that where the discretion to consider revocation is enlivened, the decision-maker must consider the specific circumstances of the case.

    25 The Preamble refers to the Government’s commitment to protecting the Australian community from harm as a result of criminal activity or other serious conduct by ‘non-citizens’. The principles listed in paragraph 6.3 are of critical importance in furthering the objective of protecting the community. They reflect community values and standards with respect to determining whether the risk ‘non-citizens’ pose is unacceptable.

    26 The principles in question record that Australia has a sovereign right to determine whether non-citizens who pose a character concern should remain in Australia. Remaining in Australia is a privilege Australia confers on non-citizens in the expectation that they will remain law-abiding and will respect important institutions such as Australia’s law-enforcement framework and will not cause or threaten harm to individuals or the Australian community. It is recorded that the Australian community expects that visas will be cancelled by the Government if non-citizens commit serious crimes in Australia. It is also recorded that non-citizens who have committed a serious crime should generally expect to forfeit the privilege of remaining in Australia. In some circumstances, criminal offending and the harm that would be caused if it were to be repeated may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances even other strong countervailing considerations may be insufficient to justify not cancelling the visa. In addition, Australia has a low tolerance of any criminal conduct by people who have been participating in the Australian community for only a short period of time.

    27 In exercising the discretion, I must follow the rules and guidelines set out in Direction 79. Information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than other considerations.

    28 I turn now to Part C which is the relevant part. There are three primary considerations mentioned in Part C that I must consider; first, protection of the Australian community from criminal or other serious conduct; secondly, the best interests of minor children in Australia; and, thirdly, the expectations of the Australian community.”

13. Under the Direction, I must take into account the nature and seriousness of the non-citizen’s offending or other conduct to date. I must also take into account the risks to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

14. So far as the nature and seriousness of the non-citizen’s criminal offending to date are concerned, I must have regard to a number of factors. These are set out in paragraphs (a) to (i) of paragraph 13.1.1(1). I accept and apply the principle that a sexual crime must be viewed very seriously.   This principle is directly applicable in this case. There was also some degree of violence, although limited, in this case, and the offences need to be viewed very seriously as well from this perspective according to paragraph (b). I must have regard to the principle that crimes committed against vulnerable members of the community are to be regarded seriously, and I find that this newly arrived Taiwanese victim was vulnerable given her circumstances. 

15. Turning to paragraph (f), I note that the sentence imposed by the Court reflected the seriousness of the crime, but I note also that the sentencing Court Justice found that “the objective circumstances of this offending place it toward the lower end of the scale”[4]. 

    [4] Exhibit R1, page 264. 

16. Mr Baradas has no prior convictions, and so there is no frequency of offending that needs to be taken into account other than the fact that there were two counts of unlawful sexual intercourse.

17. I must evaluate the risk to the Australian community.  This requires me to take into account “cumulatively” the impact on the Australian community should Mr Baradas reoffend and the chances that he will reoffend[5].

    [5] Direction 79, paragraph 13.1.2(3).  

18. So far as the first of these factors is concerned, I think that the impact upon the Australian community would be very serious should Mr Baradas reoffend,. The crime of unlawful sexual intercourse is one that can have profound psychological as well as physical effects. The effects are likely to persist for a very long time and, indeed, they may prove permanent. The psychological and/or physical well-being of a victim may be permanently impaired to a substantial degree by this type of crime.

19. I do assess that the risk of Mr Baradas re-offending is very low, however. I accept, as I believe I should, the assessment of the sentencing judge in this regard.  As I have indicated, the sentencing judge referred to the prospects of Mr Baradas reoffending as being “extremely low”.  Like the judge, I am not necessarily persuaded that Mr Baradas genuinely appreciates how harmful his conduct has been towards the victim. That said, I accept that Mr Baradas does feel remorse in respect of the impact this offending has had upon his family and, of course, upon himself (in terms of his incarceration and threatened deportation). I also believe and accept the evidence of Mr Baradas’ wife, who indicated that the couple are reconciled and wish to resume a stable married life informed by the Christian principles to which they both adhere and informed also by a common desire to advance their children’s interests. This supports a conclusion that the chances of his reoffending are very low.  

20. I accept Ms Thompson’s submission that, until a relatively late stage, Mr Baradas maintained his innocence to the federal Government when it was reviewing his visa status under s 501 of the Act. In all the circumstances, however, I believe I should act, so far as the estimation of risk is concerned, on the sentencing Court’s view, supported, as it is, by my own evaluation of the genuine desire of Mr Baradas to reintegrate himself in his family for his family’s sake.

21. I must also have regard to the expectations of the Australian community. In this regard I follow the decision of the full Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185. I acknowledge that this factor is not one for me to evaluate for myself. I accept that the expectations of the Australian community weigh heavily against Mr Baradas.

22. I must have regard to the interests of minor children. I think this factor weighs in Mr Baradas’ favour. I believe that his children would derive a substantial benefit from his presence in Australia as they grow up, not only in terms of emotional and psychological support and encouragement, but also in terms of financial support. I accept that the chances of Mr Baradas being able to support his family from the Philippines are somewhat uncertain.  His income is not likely to be as high as it would be here in Australia, at least for some time.

23. I accept that Ms Baradas will continue to provide parental support, and I also believe that other family members and friends will assist in the upbringing of the children.  These considerations would ameliorate somewhat the impact of Mr Baradas’ removal to the Philippines, but they would not counterbalance that adverse impact fully in my opinion. 

    Other considerations

24. There are a number of other considerations to which I should also have regard, although generally speaking primary considerations should prevail as the Direction makes clear[6].I accept Ms Baradas’ evidence that she wishes genuinely to resume her married life with her husband.  I accept that that relationship is one that is important to her, and I accept that it will be interrupted, if not destroyed altogether, by Mr Baradas’ removal to the Philippines. I accept that it would not be in Ms Baradas’ interests to return to the Philippines and interrupt substantially the life that she has built for herself and for her children here in Australia.

    [6] See Direction 79, paragraph 8(4).

25. I also accept that Mr Baradas has a genuine interest in recommencing family life and that this is important to him personally.

26. I do not attach much weight at all to the impediments Mr Baradas would face on removal to the Philippines. He is completely familiar with its culture and standards. I am mindful of the fact that I should not apply Australian standards of living in estimating the difficulties that an applicant might face on return to his or her country of origin.  The Philippines is, I accept, a country I can reasonably assume has a quite considerably lower standard of living. I do not think that this factor has much weight at all to play in my decision-making.

27. I have no evidence before me in respect of the impact of my decision upon the victim of the offending and so this factor counts neither for nor against Mr Baradas in this case.

    WEIGHING UP OF DISCRETION

28. The weighing up of the discretion in this case has not been easy. The crime of which Mr Baradas has been convicted is a very harmful one that can, quite literally, annihilate the future prospects of a victim to enjoy life. This observation applies to the ongoing psychological impact of the crime, and, of course, there can be ongoing physical impacts for a victim. In this case, however, I note the explicit indication of the sentencing Court that Mr Baradas’ prospects of reoffending are “extremely low”, and I also note the interests of the minor children in this case, which is a primary consideration that I must take into account. I have not found this case an easy one, but in all the circumstances I believe the preferable or correct decision on the evidence adduced before me is to revoke the cancellation decision. I believe that Mr Baradas will make a significant contribution to the welfare of his family both financially and emotionally in the future. So far as the children are concerned this is, as I have said, a primary consideration but it is also a consideration that applies to Mr and Ms Baradas under the rubric of “other considerations”.

29. Had my estimation of the risk of reoffending been higher, a different result may well have ensued in this case; but, given the Court’s assessment of the “extremely low” prospects of Mr Baradas’ reoffending (which marries up with my own estimation of the prospects)  I believe this is a case where the cancellation decision should be revoked.

30. Ms Thompson pressed me with a submission that this is a case where any risk at all of Mr Baradas reoffending would be unacceptable.  I do not accept this submission for two reasons. First, on the assumption, that I should focus on Mr Baradas’ offending alone, I do not believe that the particular circumstances of his offending can be said to be in and of themselves so serious that no other considerations should be evaluated. Given the seriousness of the crime, it is in one sense strange to speak of degrees of offending with respect to unlawful sexual intercourse, but Mr Baradas’ offending was assessed by the sentencing judge as approaching “the lower end of the scale”.  I think I should have regard to that assessment. 

31. Secondly, and independently, I must say that I doubt whether it can ever be the case that a crime, no matter how heinous, can exclude a consideration of factors under Direction 79 that weigh in a non-citizen’s favour. If this were intended by the Direction, one would expect that consequence to be spelled out specifically in respect of nominated offences.  There is no such express provision.

32. I accept that the Direction says as follows at paragraph 6.3(4):

    “In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.”

    Equally, a decision-maker must also have regard to the specific circumstances of the individual case[7]. Where non-refoulement obligations arise for consideration, for example, the risk of serious harm to a non-citizen on return to his or her country of origin may be very high.  I do not believe that in such a case, even where a heinous crime has been committed, the Direction, properly construed, requires the decision-maker, and this Tribunal on review, to focus exclusively on the non-citizen’s crime and the risk of its reoccurrence to the exclusion of a proper consideration of the non-refoulement obligations.  The same reasoning applies to other potentially persuasive considerations in the non-citizen’s favour.

    [7] See Direction 79, paragraph 6.1(3).

1. Ms Thompson’s submission does in fact imply a two-stage approach to the exercise of the discretion, and I do not believe that a two-stage approach was intended.  The first stage would require the Tribunal to ask itself whether any risk of repetition of the criminal offending in question is in and of itself “unacceptable”.  This question is answered solely by reference to the non-citizen’s conduct and the risk of its reoccurrence in isolation.  If the answer to the question is “yes”, the decision-maker (and the Tribunal on review) should not proceed to examine the factors that weigh in the non-citizen’s favour.  Only if the answer is “no” would the second stage be reached, which would require the Tribunal to weigh all factors, both for and against the non-citizen.    As I have said, I do not believe the Direction authorises this approach.  In particular, I do not believe paragraph 6.3(4) requires this approach.

2. But this second reason for not accepting Ms Thompson’s submission arises independently of the first.  As I have said, even assuming I should focus on the offending alone, the two counts of unlawful sexual intercourse committed by Mr Baradas in this case are not, in my opinion, in and of themselves so serious that no other considerations need be weighed up. 

   DECISION

3. Having weighed the factors for and against in this case, I have decided to set aside the decision under review and to substitute a decision that the cancellation of the applicant’s visa be revoked.

4. Finally, I note that Mr Baradas asked me at the hearing to suppress the publication of his name.  He linked this submission to a concern he had at the time of the hearing that other detainees would learn of his crime.  As at the date of publication of these written reasons, however, Mr Baradas will have left detention and so his concern in this regard has been superseded by his release.   I do not propose, therefore, to accede to Mr Baradas’ request.

37.     I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr N A Manetta.

..............[Sgnd]....................
Administrative Assistant Legal

Dated: 27 January 2021

Date of hearing:	4 December 2020; 7 December 2020
Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	Ms Sarah Thompson, HWL Ebsworth Lawyers