BNVM and Minister for Immigration and Border Protection (Migration)
[2017] AATA 621
•5 May 2017
BNVM and Minister for Immigration and Border Protection (Migration) [2017] AATA 621 (5 May 2017)
Division:GENERAL DIVISION
File Number: 2017/1390
Re:BNVM
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Deputy President Dr C Kendall
Date:5 May 2017
Place:Perth
The decision under review is affirmed.
.....................[sgd]..................................................
Deputy President Dr C Kendall
CATCHWORDS
IMMIGRATION – request for Bridging (Class WE) visa – visa refusal pursuant to s 501(1) of the Migration Act 1958 – “character test” – “sexually based offences involving a minor” – Direction No 65 – primary and other relevant considerations – protection of the Australian community from criminal or other serious conduct – expectation of the Australian community – other relevant considerations – international non-refoulement obligations – impact on victims – decision under review affirmed
LEGISLATION
Migration Act 1958 – sections 499(2A), 500, 501(1), 501(6), 501(7)
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – paragraphs 6.1, 6.2, 6.3, 7, 8, 11, 11.1, 11.1.2, 11.2, 11.3, 12.1, 12.3
CASES
Jal and Minister for Immigration and Border Protection [2016] AATA 789
Minister for Immigration and Border Protection v Le [2016] FCAFC 120
Passells and Minister for Immigration and Border Protection [2016] AATA 1033
Re Du Pont and Minister for Immigration and Ethnic Affairs (1983) 5 ALN N143
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
REASONS FOR DECISION
Deputy President Dr C Kendall
5 May 2017
INTRODUCTION
The applicant will be referred to as BNVM throughout this decision. The Tribunal has determined that there are confidentiality issues in relation to BNVM’s criminal offences. Specifically, this matter details sexual offences against a minor under South Australian law. The names of witnesses appearing before the Tribunal and those who provided letters of support have accordingly also been altered to ensure confidentiality.
This is an application lodged under s 500(1)(b) of the Migration Act 1958 (the “Migration Act”) for review of a decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”) dated 1 March 2017 (G2 at 15) that refused to grant BNVM a Bridging (Class WE) visa (the “visa”) pursuant to s 501(1) of the Migration Act. Relevantly, the delegate found that BNVM had been convicted of two counts of unlawful sexual intercourse with a person under 17 years. The young girl in question was the daughter of BNVM’s then partner (whom he later married). She was aged 16 and attending year 10 in school. The age of consent in South Australia (where the offence occurred) is 17. BNVM was 29 at the time this occurred. Having so determined, the delegate found that BNVM had not satisfied her that he passed the character test by virtue of s 501(6)(e) of the Migration Act.
Having found that BNVM did not pass the character test, the delegate considered whether to refuse BNVM the bridging visa as per the requirements of Ministerial Direction 65 – Visa refusal and cancellation under s 501 (“Direction No. 65”). The delegate refused to grant BNVM the visa.
BACKGROUND FACTS AND PROCEDURAL HISTORY
BNVM is a 31 year old male citizen of India (G2 at 12). He first arrived in Australia on 5 March 2009, age 23, as the holder of a Student (Class TU) visa (G2 at 98). He applied for and was granted three subsequent student visas (13 September 2011, 21 August 2012 and 29 November 2013) – the last of which was valid until 22 May 2016 (G2 at 12).
On 30 December 2014, a combined application for a Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) (G7at 529-552) was lodged in BNVM’s name. His partner at the time was Ms “S”. She and BNVM had married on 4 December 2014 but had been in a relationship before that date. Ms S is the mother of Ms “A”, the young girl the subject of BNVM’s sexual offence convictions.
BNVM’s partner applications were refused on 16 March 2015 (G2 at 58-82).
On 9 March 2016, BNVM’s Student (Temporary) (Class TU) visa was cancelled under s 116(1)(g) of the Migration Act (G2 at 83-89). This occurred because the Department determined that BNVM had, on that date, criminal convictions that included sexual offences against a minor (G2 at 20)
As a result of this cancellation, BNVM became an unlawful non-citizen. He was detained on 20 May 2016 pursuant to s 189 of the Migration Act (G8 at 558).
On 2 June 2016, whilst in detention, BNVM lodged a Bridging E (Class WE) visa application. This was refused on 6 June 2016 (G2 at 12). On 17 June 2016 the Administrative Appeals Tribunal Migration Review Division affirmed the Department's decision in relation to that bridging visa (G2 at 90-97).
On 22 November 2016, detention under s 189(1) was dissolved as the courts revoked bail and remanded BNVM in criminal custody. On the same day, the courts granted bail after a hearing and BNVM was re-detained by the Department under s 189(1) of the Migration Act.
On 19 December 2016, BNVM applied for a Protection (Class XA) visa (G2 at 22-57). On 21 December 2016, BNVM applied for the bridging visa that is the subject of this review. This was done in conjunction with a protection visa application.
On 29 December 2016, BNVM was sent a Notice of Intention to Consider Refusal under s 501(1) of the Migration Act (G2 at 99-102). That Notice detailed BNVM’s criminal history and suggested he may not pass the character test by virtue of s 501(6)(e) of the Migration Act.
On 13 February 2017, the Department sent BNVM a letter inviting him to comment on a National Police Certificate dated 24 January 2017 (G2 at 103-106; G2 at 20-21).
On 2 March 2017, BNVM’s application for the bridging visa was refused pursuant to s 501(1) of the Migration Act (G2 at 11-19).
On 6 March 2017, BNVM’s application for the associated protection visa was also refused (G2 at 553-570).
On 9 March 2017, BNVM applied to this Tribunal for review of the decision to refuse his protection visa. That decision is pending and is not in issue before this Tribunal.
On 13 March 2017, BNVM applied to this Tribunal for review of the decision to refuse his bridging visa (G1 at 1-10).
ISSUES
The issues for consideration by this Tribunal are:
(i)whether BNVM passes the “character test”; and
(ii)if not, whether BNVM’s visa should be refused, taking into account the relevant considerations in Direction No 65.
EVIDENCE
This matter was heard in Perth on 1 and 2 April 2017. BNVM appeared in person and was self-represented. The Minister was represented by Mr Gerrard. An interpreter was requested by BNVM and was provided on both days. It is noted, however, that BNVM spoke fluent English and required little translation assistance.
The evidence before the Tribunal consisted of:
·A 570 page set of G Documents (G1 to G8) (R1);
·A Statement of Facts, Issues and Contentions from the Minister dated 24 April 2017;
·A Written Statement from BNVM dated 27 February 2017 (A4);
·A Written Statement from BNVM’s cousin dated 11 April 2017 (A3);
·A Written Statement from BNVM’s father dated 23 January 2017 (R2);
·A further Written Statement from BNVM’s father dated 6 August 2013 (A10);
·A First Aid Certificate in relation to BNVM dated 30 March 2017 (A1);
·An email from BNVM regarding his place of residence if visa granted dated 12 April 2017;
·A Certificate of Attendance – Substance Abuse – Anger Violence dated 20 April 2017 (A2);
·A letter to BNVM from his solicitor dated 10 March 2017 (A6);
·A letter to BNVM from his solicitor dated 6 October 2015 (A7);
·A bundle of documents detailing complaints from BNVM in relation to alleged mistreatment from SERCO (A8);
·A Classified Advertisement from India in relation to BNVM being disowned by his father (undated) (A5).
Ms A, the daughter of BNVM’s former wife and the subject of BNVM’s criminal charges in relation to sexual intercourse with a person under the age of 17 did not provide a witness statement. BNVM asked that the comments made at paragraphs 14-15 (G2 at 92) in a decision of the Migration and Refugee Division of the Tribunal dated 17 June 2016 be referenced and relied upon as Ms A’s witness statement for the purpose of these proceedings. The Minister agreed to this request and the Tribunal agrees to do so (R2).
Ms A appeared as a witness via telephone. BNVM’s cousin also appeared as a witness via telephone.
The Tribunal has reviewed all of the material before it and highlights all relevant materials below.
CONSIDERATION
(i) Does BNVM pass the Character Test?
The Tribunal must first consider whether BNVM passes the “character test” as that term is defined in s 501(6) of the Migration Act.
Pursuant to s 501(1) the Minister (and the Tribunal standing in his shoes) may refuse to grant a visa to a person if the person does not pass the “character test” (as defined in section 501(6) of the Migration Act).
This minister’s power in s 501(1) is discretionary. The “character test” is defined in section 501(6) of the Act.
Subsection 501(6)(e)(i) provides that a person does not pass the character test if:
(e) a court in Australia or a foreign country has:
(i)convicted the person of one or more sexually based offences involving a child;
As noted above, on 2 October 2015 BNVM was convicted in the District Court of South Australia of unlawful sexual intercourse with a person below 17 years of age.
As a consequence of being convicted of a sexually based offence involving a minor, BNVM does not pass the character test in s 501(6) of the Migration Act. BNVM did not assert otherwise before this Tribunal.
Accordingly, on the evidence before it, the Tribunal finds that BNVM does not pass the character test as that term is defined in the Migration Act.
(ii) Should the Tribunal Exercise its Discretion and Refuse BNVM a Bridging Visa?
Having determined that that BNVM does not pass the character test because he was convicted of a sexual based offence against child (specifically, in relation his former wife’s daughter, Ms A, then aged 16) the Tribunal must now determine whether to exercise the discretion to refuse BNVM’s bridging visa application.
Direction No 65 was issued by the Minister on 22 December 2014 and is binding on all decision-makers from that date. It provides guidance to the Tribunal on the application of the character test and the exercise of its discretion. Relevantly, the Preamble to Direction No 65 (at paragraph 6) states:
6.1Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2)Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
…
(4)The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501 CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 6.2 of Direction No 65 provides general guidance to the Tribunal in relation to the exercise of the discretion to revoke a decision to cancel a visa. It provides:
6.2 General Guidance
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
...
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501 CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No 65 sets out a number of principles, including the following:
6.3 Principles
…
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, 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 or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
…
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1) of Direction No 65 provides guidance as to how this discretion is to be exercised. Paragraph 7(1) of Direction No 65 states:
7. How to exercise the discretion
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa;…
Paragraph 8(1) of Direction No 65 states:
8. Taking the relevant considerations in account
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case …
In relation to BNVM’s bridging visa application, Part B of Direction No 65 sets out the considerations that are relevant in exercising the discretion in s 501(1) of the Migration Act. These considerations are addressed below.
Primary Considerations
Paragraph 11(1) of Direction No 65 sets out the following three “primary considerations” that must be taken into account in deciding whether to refuse a person’s visa:
(i)Protection of the Australian community from criminal or other serious conduct;
(ii) The best interests of minor children in Australia; and
(iii) Expectations of the Australian community.
Each of the three “primary considerations” is addressed in relation to BNVM below.
(i)Protection of the Australian community from criminal or other serious conduct
In relation to paragraph 11(1)(a) of Direction No 65 (i.e. protection of the Australian community), paragraph 11.1 of Direction No 65 provides:
11.1 Protection of the Australian community
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. [Emphasis added]
(a) The nature and seriousness of the non-citizen’s conduct to date
In relation to paragraph 11.1(1)(a) of Direction No 65 (i.e. the nature and seriousness of the non-citizen’s conduct to date), paragraph 11.1.1 of Direction No 65 provides:
11.1.1 The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
(b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
(d)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
(e) The sentence imposed by the courts for a crime or crimes;
(f)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(g) The cumulative effect of repeated offending;
(h)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(i) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The evidence before the Tribunal indicated that BNVM had been charged with several criminal offences. However, there was a great deal of confusion before the Tribunal as to what offences, specifically, BNVM had been convicted of. The Minister contended that based on the National Police Certificate dated 24 January 2017 (G2 at 20), the Tribunal should find that BNVM had been charged and convicted as follows:
Court
Court Date
Offence
Court Result
Fingerprint Reference
04 Mar 2017
Fingerprint ID
903039873
Adelaide Magistrates Court
03 Mar 2017
Contravene term of intervention order - other than programs
Pending matter.
District Court Of SA
02 Oct 2015
Fail to comply with Bail Granted agreement contravene term of intervention order- intervention programs possess prescription drug (not being drug of dependence) aggravated assault (no weapon) against child or spouse(4)
Convicted no further penalty
Unlawful sexual intercourse with person under 17 years (2)
Sentenced 6 months 2 weeks imprisonment
Adelaide Magistrates Court
17 Mar 2015
Estreatment of Bail Granted
Found proved estreatment $300
At the hearing of this matter, however, BNVM explained that the four aggravated assault charges in relation to his former wife were dropped. Further, the police had not proceeded with the later charge (in 2017) of contravening an intervention order. This statement aligns with BNVM’s written statement to the Tribunal (A4) which provides relevantly as follows:
I never went out to have any night out to night clubs. I was very introvert person. I never chose any wrong path to make money. The crime, I committed accidently took in extreme circumstances. Yes, it is true that I had sexual intercourses [sic] twice with … when she was 16-1/2 years old. But it all happened in extreme circumstances. (2) For assault charges, I never hit any woman in my life. I am strongly against those men who hit women. So, I never, put my hand to [ex wife]. She hit me so many times with her heels, broom and sometimes slapped me in my face. [Ms A], she is well aware of it when I went to interview for bridging visa E. [Ms A] also kept me company, she tried to tell the member of Tribunal that [her mother] set me up with the help of her friends. I have never been convicted for assault charges. They were withdrawn. For breach of intervention order, I was convicted. I went to [ex-wife’s] … house to pick up my car and uniform. I went there only once, but I had to plea [sic] guilty for going there twice because of legal and lawyer and my circumstances.
The Tribunal queried whether there was any documentary information that might assist BNVM this regard.
BNVM provided Mr Gerrard copies of two letters dated 10 March 2017 and 6 October 2015 (A6 and A7) from BNVM’s former lawyers that provided as follows:
10 March 2017 (A6)
We confirm the writer appeared on your behalf for Trial in the Adelaide Magistrates' Court on 3 March 2017 at which time your matter was resolved.
We confirm your matter was listed before Magistrate O'Connor and dealt with as follows:
Charge
Outcome
Breach of Intervention Order
Trial - Police withdrew all charges
6 October 2015 (A7)
I confirm that I appeared on your behalf on 2 October 2015 in the District Court of South Australia.
Your matter was listed before Magistrate Davidson and dealt with as follows:
Charge
Outcome
Aggravated Assault x 4
These charges were withdrawn upon you confirming the IO with … removed and distance reduced to 100 meters to make all conditions consistent.
Breach of Bail and Intervention Order
Convicted without further penalty
Unlawful Sexual Intercourse x 2
6½ months remanded in custody backdated to 18 January 2015.
You have a right to appeal the penalty. That appeal must be lodged within 14 days of the Court hearing. We do not consider that there is any merit in an appeal. If you wish to appeal then you must notify us in writing immediately.
When questioned by the Tribunal, Mr Gerrard conceded that the statements in these letters seem to be corroborated by the numerous court transcripts and police transcripts in the G documents before the Tribunal (noting, in particular, G6 at 321).
The Tribunal can only work with the evidence before it. Given the potentially serious consequences that arise for an applicant in relation to a section 501 hearing, it is vital that all evidence (particularly that which relates to criminal offences) before the Tribunal be sound and unambiguous.
On the evidence before it, the Tribunal finds that BNVM’s criminal convictions in relation to the four assault charges against his former wife were indeed dropped, as was the contravention of intervention charge in 2017. The Tribunal thus finds that BNVM’s criminal conviction record is as follows:
Court
Court Date
Offence
Court Result
District Court Of SA
02 Oct 2015
Fail to comply with Bail Granted agreement contravene term of intervention order- intervention programs possess prescription drug (not being drug of dependence)
Convicted no further penalty
Unlawful sexual intercourse with person under 17 years (2)
Sentenced 6 months 2 weeks imprisonment
Adelaide Magistrates Court
17 Mar 2015
Estreatment of Bail Granted
Found proved estreatment $300
In determining whether BNVM’s criminal conduct should be viewed as serious, the Tribunal notes the police summary of the sexual offense for which BNVM was ultimately found guilty as detailed in the South Australia Police Department Police Apprehension Report (G5 at 213), as follows:
Count 1 - Persistent Child Exploitation VICTIM
The Victim in this matter is … who was born on the … and is sixteen (16) years of age. She states that she lives at her … address with her mother, … and her step-siblings … (8 years) and … 7 years).
In May 2014 she states that her mother began a relationship with the Accused who is twenty-nine (29) years of age and born on the … Shortly after this the Victim went back to see her family in … and arrived back in Australia on the 29th of July 2014.
She states that she remembers the Accused asked her if she was “seeing anyone” in a conversation she had with the Accused at her … address. She remembers the Accused telling her that he was twenty four (24) years of age.
… states that the Accused was aware that she was sixteen (16) years of age because she talked to him about her age and being a student at … High School. She remembers kissing the Accused in the lounge room at her address.
She later found his resume on the home computer that showed that the Accused was twenty-nine (29) years of age.
... states that she had sexual intercourse with the Accused on four (4) different occasions between August 2014 and November 2014 at her … home address. The sexual activity always involved the Accused putting his penis inside of her vagina. … cannot legally give consent until she is seventeen (17) years of age. This activity occurred at her home address in the day time when her mother and siblings were not home.
Count 2 - USI
VICTIM - …
She states that she had sexual Intercourse with the Accused for the first time at her … address between 1/8/2014 and 31/8/2014. She states that this occurred in the day time in her bedroom on her double bed. The Accused lay on top of her between her legs and put his penis in her vagina. This caused her pain and she asked the Accused to stop and the Accused took his penis out of her vagina. … states that the Accused wore a condom. She states that she had soreness to her vagina area after this.
COUNT 3 - USI
VICTIM - …
She states that she had sexual intercourse with the Accused at her … address between 15/8/14 and 15/09/14. She states that this occurred in the day time. The Accused lay on top of her and put his penis inside of her vagina.
… states that she felt some discomfort on this occasion but she had sex with the Accused for a longer period of time than on the first occasion. She believe that the Accused put his penis all of the way inside her vagina. She had a small amount of bleeding after this activity for a few days.
COUNT 4 - USI
VICTIM - …
She states that the third time that she had sex with the Accused at her … address was in September 2014. She does not remember that this experience was much different to Count 3. This occurred in the day time in her bedroom and the Accused lay on top of her and put his penis in her vagina.
COUNT 5 - USI
VICTIM - …
She states that the last time that she had sex with the Accused took place on Monday the 10th of November 2014. She remembers this occasion as it felt different and she felt a connection with the Accused. This occurred in the day time at her … address. She believes that is was this date because she was home from school for the day and this is marked in her diary. She was in year 10 and she was either supposed to be on work experience or her year 10 “challenge” time.
Her mother, … left the home address in the morning, returned some time later and then left again at about midday. The Accused began kissing … in the kitchen and then they went into her bedroom where both of them took their clothes off. … lay down on her back and the Accused lay on top of her and was kissing her. The Accused then put a condom on his penis and put his penis inside her vagina. The Accused moved around inside of her for some time and then they changed positions and the Accused lay on his back and … straddled the Accused and had sex with him for about forty five (45) minutes altogether.
… states that she does not know if the Accused ejaculated inside of her as she has limited sexual experience. She states that the Accused always wore a condom when she had sex with him. She states that her mother found one of the condom wrappers that she believed was dark in colour and asked … about it. She lied to her mother and stated that the wrapper was from a long time ago, She states that the Accused and herself were communicating on their mobile phones via Viber and also on Facebook.
… provided her statement to police on the 27th of January 2015. She states that in the week prior to this her mother asked her about whether she was having sex with the Accused and she said that she was. Her mother married the Accused in early December 2014. She was no longer having sex with the Accused at this time.
...
The Accused in this matter is … He did not answer questions in relation to this matter but did deny the allegations when they were read to him.
In determining whether BNVM’s criminal conduct can be viewed as serious, the Tribunal also notes the sentences imposed by the courts for BNVM’s crimes. The Tribunal notes, in particular, the sentencing remarks of Her Honour Judge Davison (dated 2 October 2015) (G6 at 406-410). Her Honour’s summary of BNVM’s conduct and explanation for that conduct says much about the seriousness of BNVM’s criminal conduct.
Relevantly, Judge Davison found as follows:
You pleaded guilty to two counts of unlawful sexual intercourse. You pleaded guilty upon arraignment and you are entitled to a discount of up to 20% on any sentence I may impose.
The maximum penalty for this offence is 10 years imprisonment on each count.
You have now been in custody since January of this year. The facts in relation to your offending are quite complicated. It seems that you began a relationship with the relationship’s mother. You met her through a dating website. She was older than you. She had three children, one of whom was the complainant. You were in a relationship with the complainant’s mother for about nine months before you married. The relationship appears to have been a difficult one. There were allegations of infidelity on both sides.
You had penile-vaginal intercourse with the complainant on four occasions. She was a willing participant in relation to this activity. She was only 16 years old at that time. You first had sexual intercourse with her in about August of 2014 and the final time was in November of 2014.
In December 2014 you married her mother. The complainant in this matter has not provided a victim impact statement. She is now 17 years old. I am told that you wish to recommence the relationship with her when you are released. She however has expressed a wish to move on from you. And you would be well advised to do that.
You are now 30 years old. You were born in India. You came to Australia on a study visa. You applied for a number of different opportunities to study.
You had difficulties in relation to that as some of the places you applied to were not legitimate. I was told in submissions that you did not appreciate the criminality of your actions. I do not accept that. You knew the complainant was underage at the time you were having with sex with her. That was one of the reasons that you went to such lengths to hide it from her mother. The other reason of course was you were engaged in a relationship with her mother at the time.
You have had a couple of jobs whilst you have been in custody. I was told that you had part-time jobs working as a farm hand in a bakery and in packing shelves at … You have also worked in security. You were working as a security guard at … at the time of these offences.
You borrowed significant amounts of the money to be able to undertake your studies in Australia. I am told that it is likely you will be deported in relation to these offences.
In addition to these offences that I am dealing with you have also pleaded guilty to breaching an intervention order breach of bail and possessing a prescription drug, namely steroids.
In the circumstances of you being in custody since January of this year, I have determined to sentence you in the following way: a term of imprisonment is warranted in relation to the offences of unlawful sexual intercourse to which you have pleaded guilty. In relation to those offences, pursuant to S.18A of the Criminal Law (Sentencing) Act, I would have sentenced you to a term of imprisonment for eight months, however, taking into account your pleas of guilty, I reduce that to six and a half months imprisonment. In respect of the breach of intervention order, the breach of bail and possessing the prescription drugs you will be convicted without further penalty.
The interim order that was issued to you on 17 January will now be varied. The name of the complainant will be removed from that. In all other respects it will be confirmed. It has been prepared and it will be served on you today before you leave.
I order forfeiture in relation to the drugs pursuant to s.52E(7).
The sentence of imprisonment that I have imposed upon you of six and a half months will be backdated to commence on 19 January 2015. The result of that is that you have now served that entire sentence and you are to be released. Subject to there being any other charges that are holding him -
SHERIFF’S OFFICER: No, they are all the charges we are aware of
HER HONOUR: Mr … you need to understand that you must not go anywhere near the complainant’s mother, or her family. In relation to the complainant, she has said, unequivocally, without reservation, she does not want to have a relationship with you, You need to accept that and you need to move on as well. If you don’t, if you breach these interventions orders or commit any other offences it’s likely that you’ll find yourself back in gaol. Do you understand that?
PRISONER: Yes, I do.
HER HONOUR: You are now free to go,
PRISONER: Can I say something please?
HER HONOUR: Go and stand next to Ms Hartmann please. What do you want to say?
PRISONER: To you or my lawyer?
HER HONOUR: Speak to your lawyer. Perhaps that will be a good idea first.
Mr … I’ve sentenced you in relation to these matters, I’ve taken into account what has been said by your lawyer and by Ms … These matters are now at an end. You can speak to Ms Hartmann outside court after this matter adjourns. You need to understand that it’s finished in court now. You are being released into the community now.
PRISONER: Thank you.
HER HONOUR: You need to be very careful that you don’t commit any further offences.
PRISONER: I will.
HER HONOUR: Do you understand that?
PRISONER: I understand that,
HIS HONOUR: It’s over in relation to the complainant’s mother, and it’s over in relation to the complainant. Do you understand?
PRISONER: Yes.
HER HONOUR: You’ll explain it again no doubt?
MS HARTMANN: Yes.
HER HONOUR: Read the intervention order that has been given to you, comply with it in every respect.
In oral evidence before this Tribunal, BNVM stated that, contrary to what Her Honour said about the number of times (4) that he had sexual intercourse with Ms A, he only had sexual relations with her on two occasions. This evidence was contradicted by Ms A herself who gave evidence to the Tribunal that she and BNVM had indeed had sexual intercourse on 4 occasions when she was 16. Ms A was entirely credible in this regard. BNVM also stated that he only pleaded guilty to the other offences referred to above because, in effect, his lawyer advised that he had no choice. In relation to the drug offences, BNVM indicated that the steroids in question actually belonged to his friend and that he had refused to give them back to him because he owed BNVM money. When asked by counsel whether this amounted to theft, BNVM vehemently denied that this was the case.
As explained in Passells and Minister for Immigration and Border Protection [2016] AATA 1033, the Tribunal cannot contradict or go behind a conviction and examine the facts upon which it is based. However, that is not to be taken as denying the right of an applicant to present to the Tribunal matters pertaining to a conviction provided that they do not contradict the facts upon which a court found in arriving at a conviction: Re Du Pont and Minister for Immigration and Ethnic Affairs (1983) 5 ALN N143.
Although BNVM did not specifically address this issue in his written statement, he did provide a detailed written statement (A4) that provides relevantly, as follows:
I came to Australia in March, 2009. …
…
During this years, I also worked in industries such as Security and Retail. As a security officer working at night clubs, pubs, horse races and school, I always did my best to protect customers or clients from any danger, and provided them a safe and enjoyable environment. I also worked in supermarket called … I always performed my duties with honesty and respect towards customers. Moreover, for work experience, I was doing my hours and putting my best at … to gain as much as could. I, later, during my bakery course, started doing my work-placement at … bakery in Adelaide. In order to learn English I was going to different libraries. I wanted to succeed in my life because of what I had to get through in past. I did not want to waste this chance. I want to help people as many as I can due to their poverty, always.
….
[Ms A] was being abused physically and mentally by … to press charges against me and later to put in an Impact statement but she did not put in.
The Judge in district court considered my circumstances like how everything happened, and backdated my sentence to 6 months and two weeks. [Ms A] fought for me. It is a long story. She [ex-wife] asked me to get married to her by threatening me indirectly. All I would say is if any investigation is conducted against her like about Centrelink, SA housing etc. then …
Anyways, I went to meetings of Jehovah’s witnesses for 1 and half years because I strongly believe in God while I was studying. I have never ever committed any crime before in India and never even thought of doing any in Australia either. Therefore my circumstances in which these crimes took place made my sentence shorter when I get released I was in shock and depression. [Ms A] pulled me together again. She left [her mother’s] house for me. And today, when she needs me I can’t be there for her because of my being detained.
During my time in remand centre, I learnt so much I never broke any law and worked there as cleaner in spite of having depression. With [Ms A’s] support I was getting well every day. I have my holy books to pray and have been trying my best to follow what said in them. I am a Sikh.
I have always tried to help people in my life. For example, there is a ... couple working at … bakery in Adelaide. Their names are ... Sometimes they did not have time to pick up their daughter from Kindy and a year later from school. So, they asked me to help them and I helped them by picking her up from Kindy and school despite mine being so busy. Another example is of helping my friend … He did not have money to go to India. He asked me to help him. I used my credit card and booked his ticket. I also helped him with house when he had nowhere to go. But later, when he had money and I asked him to return me my money, he just kept on avoiding me, and I took away his unprescribed drugs from him, I won’t give them back until he returns my money, and later, I got charged for having them.
Now, it has been a long time since I moved to Australia. I could not return money to people I borrowed from including my uncle. These people have been threatening my dad. My dad dispossessed/disowned me. Circumstances in …, are very bad mainly in rural areas. So many people go missing, get abducted, get killed and thrown into natural rivers. So many bodies are found every year. People who can’t pay their loans back, so many of them commit suicide. Police listen to rich people because of corruption. It would not be hard for these people to harm me. My village is only 3 to 4 kilometres away from one of natural river, called … Anything could happen to me. I don’t have anywhere to go in India. I do not have any ties in India any longer. There is no social security either. When I last time went to India I was threatened by money lender and I had to take shelter at my grandmother’s house. But she also died recently. Moreover, my depression has got worse. On top of that I was told other day by nurse about my blood sugar being high. I would not be able to afford any medication and treatment there. But here, I have got my cousin who can help me with accommodation and other basic needs.
I also would like to mention here about warning letters sent to me by department of immigration regarding considering cancelling my visa when I come out of remand centre. They asked me to contact them. But I never received those letters because these letters were sent to [ex-wife’s] place. I was into grave depression when I got out of remand centre. I asked my lawyer about my phone and passport (which were held by Police) to get them back and she answered to me that they would post them to your residential address. But they never sent them. I tried to log into my email but I forgot my password in order to check all emails. Later on, I and [Ms A] went to some immigration lawyer … He said that we can’t do anything without your passport. He advised me to wait for your passport for being sent to you by Police. [Ms A] also advised me to take things slowly because I was crying every now and then, and my mental health was not good. So I could not contact or respond back to department of immigration in time. In result, my visa was cancelled.
Today, I battle with my depression and stress. Recently here in detention centre, I got sexually harassed by some detainee by exposing himself to me. Serco did not help me. Border Force told me that Police did not charge this detainee because they stated that it did not happen in public. For Justice, I had to contact ombudsman and Global feedback along with legal aid. This whole thing has affected me mentally. Since I have complained about Serco and Border Force, I have been facing issues with Serco staff. It added more problems to my life. Besides, I have got a pending case, and I am not expecting any conviction.
In end, I regret or repent for crime I did, but behind this crime, there is a big story, and extreme circumstances. Otherwise, [Ms A] would have put in an impact statement against me when she was being abused physically and mentally by [her mother], and she never helped me recover from what happened in 2014-15. She tried to explain to member of Tribunal and assure him by saying [BNVM] is with me now and he will never commit this kind of crime again”. I ask or request earnestly and humbly “Please, my circumstances must be taken into consideration during this crime took place. I have never committed any crime in India and whatever I have done from 2009 to 2017, like time spent in Australia as a security officer, in retail etc., must be taken into account along with what would happen to me as I described before “if I got sent back”.
...
Please, if you have any doubt or questions about anything just let me know. I am also attaching [Ms A’s] statement which she provided to Tribunal. I hope that I should be given one chance because I believe that Australia is my home and I want to serve this country by becoming a better person or human being and if I ever was given a chance to work in this beautiful country. [sic]
In relation to BNVM’s offences, the Minister, in turn, in a Statement of Facts, Issues and Contentions dated 24 April 2017, contended as follows:
27.The sexual offences were committed against a vulnerable member of the community, namely a minor, as the victim [Ms A] was 16 years old at the time of the offence [G6, p 315]. The respondent further contends that in this case [Ms A] was particularly vulnerable, as she was also the daughter of [Ms S], the person with whom the applicant was in a romantic relationship [G6, pp 315-316]. The applicant resided with [Ms S] and [Ms A] from July 2014 onwards, and the offences began shortly afterwards [G5, p 215]. The applicant went on to marry [Ms S] in December 2014, and became [Ms A’s] step-father at that time. Offending in these circumstances evidenced a breach of trust [G6, p 284 (DPP subs)]. Furthermore, [Ms A’s] complaint to police reveals that the applicant initially lied to her about his age, stating that he was 24 years old when he was actually 29 at the time of offending [G5, p 213].
28.The serious nature of the applicant's sexual offences in these circumstances is demonstrated in the sentencing remarks made by Judge Davison on 2 October 2015. Her Honour noted that: ‘You knew the complainant was underage at the time you were having with [sic] sex with her. That was one of the reasons that you went to such lengths to hide it from her mother. The other reason of course was you were engaged in a relationship with her mother at the time’ [G6, p 316].
29.Judge Davison noted that a term of imprisonment was warranted for the unlawful sexual intercourse offences and that her Honour would have sentenced the applicant to 8 months imprisonment had he not plead guilty and been entitled to a discount [G6, p 316]. The applicant was required to pay $3,600 to the Victims of Crime levy [G6, p 262].
The Tribunal notes that in considering the nature and seriousness of BNVM’s criminal offending, sexual offences and offences against a minor are viewed seriously.
BNVM’s criminal record includes convictions for sexual crimes against a minor. The child in question was the daughter of his partner (whom he later married). She was 16 and in year 10 in school at the time the sexual offence was committed. There was clearly a relationship of trust here and BNVM breached that trust.
The seriousness of BNVM’s actions are reflected in the sentencing remarks of Her Honour Judge Davison. Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy, especially where an offender has no significant prior criminal history. BNVM was sentenced to a term of custodial imprisonment. This term of imprisonment reflects the seriousness of the sexual offence involved.
Applying the principles in paragraph 11.1.1 of Direction No 65, the Tribunal finds that, viewed objectively, BNVM’s crimes are indeed serious and of considerable concern. In the circumstances of this matter, the sexual offences committed against Ms A weigh heavily in favour of refusing BNVM’s bridging visa. BNVM’s conduct in relation to Ms A reflects a degree of recklessness towards a minor in his care that cannot be excused.
(b) The risk to the Australian community should further offences be committed
Paragraph 11.1.2 of Direction No 65 sets out the principles and factors to which the Tribunal should have regard in assessing whether BNVM represents an unacceptable risk of harm to the Australian community (i.e. the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct).
Paragraph 11.1.2 provides:
11.1.2The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.
(2)In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(3)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
ii. evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
iii. the duration of the intended stay in Australia.
(4)Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.
In relation to his issue, the Minister contended as follows in a Statement of Facts, Issues and Contentions dated 24 April 2017:
Nature of the harm if further criminal conduct
35.The nature of the harm to the community, including the families of those affected by violence and sexual offences, should the applicant again commit similar offences means that the community should not be expected to tolerate a risk of similar offences being repeated.
Likelihood of further criminal conduct
36.In relation to the sexual offences, the applicant engaged in an unlawful sexual relationship with Ms A when she was a minor, and also the daughter of his spouse, Ms S. He resided with Ms S, Ms A and Ms S’s 2 other children from July 2014 [G5, p 215]. Moreover, between August and November 2014 the applicant was in an unlawful sexual relationship with Ms A while also being a parental figure to her [G6, p 316]. The applicant went on to marry Ms S just one month after the last sexual offence took place, in December 2014 [G6, p 315]. This offending was in essence an incestuous relationship and a gross breach of trust, which reflects very poorly on the applicant’s moral qualities.
37.While the applicant states that he and Ms A have an ongoing relationship, this was not always the case. At the applicant’s sentencing on 2 October 2015, Her Honour Judge Davison noted that Ms A had indicated at that stage that she did not want any more to do with the applicant [G6, p 315], Even if their relationship is continuing today, there is no evidence from an independent and authoritative source to indicate that the applicant has undergone any rehabilitation for the sexual offences or assaults, or that the pattern of regular offending will not continue: "BHFC" and Minister for Immigration and Citizenship [2013] AATA 166 (25 March 2013) at [35]. The existence of an intimate relationship, and then marriage, with Ms S did not prevent the applicant from repeatedly engaging in sexual and violent offences. There is no reason to consider that an ongoing relationship with Ms A would be any greater deterrent.
39.The applicant has consistently shown a disregard for the authority of the law. In relation to the unlawful sexual intercourse offences, the applicant blamed his offending on his own ignorance of the law [G6, p 316; G2(e), pp 93 [15]].
40.The applicant has previously shown that he is prepared to lie in an attempt to obtain positive outcomes for himself. ... The applicant lied to Ms A about his age [G5, p 213], he lied to his spouse about having sexual intercourse with her daughter and lied to Police when arrested by denying the allegations that were put to him by Police [G5, p 216].
41.The applicant was also convicted for continuing to attend at the victim’s home in breach of an intervention order, further demonstrating his disregard for judicial authority [G2(a), p 20; G6, pp 352-355]. The same can be said in relation to his failure to comply with conditions of bail for which he was convicted. The applicant clearly lacks insight into his criminal conduct. The respondent contends that this lack of insight, propensity to blame another for his own criminal conduct and the lack of evidence of any rehabilitation increases the risk of reoffending.
In relation to this issue, the Tribunal notes the summary of Ms A’s evidence as summarised by the Migration and Refugee Division of the Tribunal on 17 June 2016 in relation to BNVM’s first bridging visa application:
14.[BNVM] that I take evidence from [Ms A]. She confirmed that their intention was that if [BNVM] were released they would live together at her new address to which she would be moving in three weeks. She said that she was finishing Year 12 at the moment. She said that she knew that there were rules about sex offenders but there was no chance that [BNVM] would breach the law again because he was with her now. She said that if she had been 17 years old at the time [BNVM] would not have been convicted of these offences. [BNVM] said that he had not known the law. He said that he came from a rural area in India and he had never been in any trouble or hurt anyone.
15.[Ms A] said that her mother had told her that she wanted to put [BNVM] in gaol in order for him to be deported so that she [Ms A] would never be with him. She said that she had been moving out at the time when [BNVM] had been released from gaol and that her mother had told her that she would try her best to have him deported because she did not want her to be with him, that she had friends at the police station and that they would try to get him in trouble again if he breached the intervention order. She said that at the time of the breach of the intervention order for which he had been convicted he had not known the law and he had just gone there to get his keys and his clothes.
In evidence before this Tribunal, Ms A advised that her relationship with BNVM was now over. As noted above, she also gave evidence that she and BNVM had indeed had sexual intercourse on four occasions when she was 16. She also advised that she had seen BNVM shortly after he had been sentenced by Judge Davison and that BNVM did not tell her that the judge had told him to avoid contact with Ms A.
BNVM, on the other hand, denied that he had had sexual intercourse with Ms A on four occasions when she was 16. His evidence was that this had only happened twice. He also advised that he had taken Ms A to the beach on the same day he was sentenced and had seen her subsequently thereafter on numerous occasions. This occurred despite the sentencing judge making it quite clear that he should avoid any contact with Ms A.
In relation to the drug (possession of steroids) conviction, BNVM did not appear to think that he had done anything wrong in relation to this issue. He advised simply that he had taken the drugs from a friend because that friend owed him money and had made it clear that the drugs would be returned once a debt had been repaid. When asked if this amounted to theft, BNVM stated this this was not theft or wrong in any way because he hadn’t done it behind his friend’s back. He further indicated that he only pleaded guilty to this offence because his lawyer suggested it was in his best interests to do so.
In relation to the contravention of an intervention order, BNVM again did not seem to have any sense that what he did was wrong, advising the Tribunal that he again pleaded guilty because he was told to do so and justifying his behaviour on the basis that he simply wanted to get his belongings back – albeit fully aware that the intervention order was in place.
The Tribunal also received a written letter of support from BNVM’s cousin dated 17 April 2017 (A3), that reads:
I know [BNVM] who is currently living in Christmas Island detention centre WA. I know [BNVM] as family member from back home. He is a good person. He is good educated person. He belongs to a good family. His family now in depression too because of his currently situation. Back home I never seen him involved in any criminal activity. Here I don’t know what circumstances put him through this kind of situation. His father took loan for his study when he came Australia for study. Now they couldn’t pay back the loan. The loan people are harassing his family. That’s why his dad is upset with him. Last time when I went India his dad met me and told me about this situation. If I can help him I am ready to support him financially and if need I am ready for to put any kind of security or bond. So please give a chance to this person to start a new life. Thank you. [sic]
BNVM also provided the Tribunal with participation certificates in relation to a first aid course (A1) dated 30 March 2017 and proof of attendance at a substance abuse/anger violence program (A2) dated 20 April 2017. In oral evidence before the Tribunal BNVM indicated that the latter program discussed anger and violence issues broadly and had greatly assisted him. He also gave evidence that he now attended church sessions and prayed often. This, he argued, was his rehabilitation for past wrongs.
In considering the risk of harm to the Australian community, the Tribunal must have regard to the nature of the harm to individuals or the community should BNVM engage in further criminal or other serious conduct and the likelihood of BNVM engaging in further criminal or other serious conduct. The Tribunal also notes that some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable. Sexual crimes, particularly against minors, fall into that category.
The Tribunal has grave concerns about BNVM’s conduct in relation to his sexual convictions and his character more generally. BNVM has been found guilty of engaging on four occasions with a girl aged 16 who was in his care at the time. BNVM’s partner (whom he subsequently married) was that child’s mother. As correctly noted by the Minister above, this offending was essentially incestuous in nature and a gross breach of trust. It reflects poorly on BNVM’s moral qualities.
Although BNVM has expressed remorse for his conduct, the Tribunal has doubts about his credibility in that regard. Before this Tribunal, BNVM seemed quite prepared to blame everyone, from his lawyers to his ex-wife, to his friends, for his criminal record. He also seems to have completely failed to appreciate the seriousness of what he did to Ms A. He initially justified his behaviour on the basis that for him, culturally, having sexual relations with a 16 year old girl is acceptable. He then, despite the sentencing judge’s very clear directions, met (on his own account) with Ms A on the very day he was sentenced or at least (on Ms A’s account) within a few weeks of that sentence. In either scenario, his willingness to do so demonstrates a failure to respect the laws of this country and a complete failure to understand that what he did was wrong. This lack of judgement and self reflection raises serious concerns about the chances of him reoffending in this manner.
Further, there is no evidence that BNVM has made sufficient rehabilitation efforts to address his quite apparent sexual interest in minors who are in a position of trust with him. As correctly outlined by the Minister, there is no unequivocal evidence from an independent and authoritative source to indicate that BNVM has undergone any rehabilitation for the sexual offences for which he was convicted or that the pattern of regular offending will not continue.
Based on the evidence before it, the Tribunal considers that there is a risk that BNVM will reoffend if returned to the community in Australia. Applying the guidance in paragraphs 11.1.2(1) and (2) of Direction No 65, and given the nature of BNVM’s sexual-based offences, his role in the commission of those offences and his failure to demonstrate an awareness of the wrongs involved, the Tribunal finds that the risk of BNVM reoffending (even if assessed as low given the possibility that BNVM may only remain in Australia for a short period of time if his protection visa is ultimately rejected on appeal) is completely unacceptable in the circumstances of this case. Any risk of BNVM reoffending is unacceptable given the seriousness of his criminal sexual conduct against a minor and the harm that would result from any re-occurrence of such conduct. Overall, BNVM’s behaviour raises serious issues about the extent to which he poses an unacceptable risk to the Australian community. This weighs heavily in favour of refusing BNVM a bridging visa.
(ii) Best Interests of minor children
The second primary consideration listed in paragraph 11(1)(b) of Direction No 65 asks the Tribunal to examine the best interests of any minor children in Australia affected by the decision to refuse a visa.
No claims were made by BNVM in respect to any children and there is no evidence before the Tribunal that any children will be adversely affected by any decision to refuse the visa.
The Tribunal finds that this is not an issue in relation to BNVM.
iii) Expectations of the Australian Community
In relation to paragraph 11(1)(c) of Direction No 65 (the “expectations of the Australian community”), paragraph 11.3(1) of Direction No 65 provides:
11.3 Expectations of the Australian Community
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.
In analysing this third primary consideration, the Tribunal again refers to the stated principles in paragraph 6.3 of Direction No 65 and, in particular, the principles that:
(i)the Australian community expects the Australian Government to cancel the visas of non-citizens who commit serious crimes; and
(ii)non-citizens who commit serious crimes should generally expect to forfeit the privilege of staying in Australia.
In relation to this issue, Counsel for the Minister contended as follows (at [48]) in a Statement of Facts, Issues and Contentions dated 24 April 2017:
… this is not the case of a non-citizen who has spent most of his life in Australia or arrived in Australia as a child. The applicant arrived in Australia in 2009 as an adult aged 23, and first committed offences in 2014 [G2(f), p 98; G6, p 315]. During his time as the holder of a Student visa, the applicant has held a total of 22 Confirmation of enrolments, but has completed only 6, with his last date of study being 14 July 2014 [G2(d), p 88]. While the applicant held part time jobs while studying, Australia has a low tolerance of criminal conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. In the applicant’s circumstances, the Australian community would expect that the applicant’s visa be refused.
Sexual crimes by a person against children in that person’s care are particularly abhorrent. In the circumstances of this case, the Tribunal finds that the expectations of the Australian community are that a non-citizen who has engaged in a serious crime of a sexual nature against a 16 year old girl (who eventually became his step-daughter), who has shown no true appreciation of the wrong committed or provided any evidence to demonstrate that it will not happen again, should expect to be denied the right to stay in Australia.
Other considerations
Paragraph 12(1) of Direction No 65 states:
12 Other considerations – visa applicants
(1)In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a) International non-refoulement obligations;
(b) Impact on family members;
(c) Impact on victims; and
(d) Impact on Australian business interests.
The Minister’s decision, although not a decision to “cancel” a visa but, rather, a decision to refuse to grant a visa is, in practical terms, akin to a decision to cancel a visa held by BNVM. Consequently, the Tribunal considers it appropriate in BNVM’s case to take into account any other relevant considerations.
It is agreed, and the evidence shows, that in relation to BNVM, the only “other considerations” that are relevant are those outlined in paragraph 12.1(a) and (c).
International Non-Refoulement obligations
Paragraph 12.1 of Direction No 65 provides:
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2)The existence of a non-refoulement obligation does not preclude refusal of a non-citizen’s visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists.
(3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s501 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa).
(4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.
The Minister has contended (at [51] in a Statement of Facts, Issues and Contentions dated 24 April 2017), that:
… the applicant’s review of the Protection visa refusal is still pending. Any non-refoulement obligations owed to the applicant will be considered as part of that review.
On the evidence before the Tribunal it is indeed the case that a determination in relation to BNVM’s protection visa is pending. Any issues in relation to Australia’s non-refoulement obligations in relation to BNVM will be assessed at the hearing of that application. There is little evidence before the Tribunal that Australia owes any obligations in this regard to BNVM and no evidence to suggest the he cannot be returned to India due, for example, to health or any other legitimate concerns. Evidence of that sort, to the extent that it does exist, will undoubtedly be assessed by the Tribunal charged with assessing BNVM’s protection visa. That is the appropriate forum for such an assessment.
As canvassed in more detail in the Tribunal’s recent decision in Saleh and Minister for Immigration and Border Protection [2017] AATA 367 is the position taken by the Tribunal in the matter of Jal and Minister for Immigration and Border Protection [2016] AATA 789. In Jal, the applicant had arrived in Australia as the holder of a Refugee and Humanitarian visa and it was conceded that it was likely that Australia owed the applicant non-refoulement obligations. Nevertheless, the Tribunal found that because Mr Jal retained the option of applying for a protection visa, the Tribunal was not required to determine whether such obligations were owed for the purposes of determining the application to revoke mandatory cancellation.
The approach taken by the Tribunal in Jal and Saleh is entirely consistent with recent Federal Court authority. In Minister for Immigration and Border Protection v Le [2016] FCAFC 120, for example, the Full Court held:
[I]n determining whether or not to exercise the powers in s501(1) or (2) of the Migration Act, Australia's non-refoulement obligations and the prospect of indefinite detention are not mandatory considerations in circumstances where it is open to the person whose visa has been refused or cancelled on character grounds to apply in Australia for a protection visa or some other visa (which visa application the decision-maker is legally bound to consider and determine) and the consideration of the visa application must involve regard being paid to the prospect of indefinite detention if the visa is refused.
Australia's non-refoulement obligations to BNVM, if any exist, can validly be met through the protection visa process or through the exercise of powers under s 195A. In this case, BNVM’s protection visa application has yet to be decided.
In these circumstances, the Tribunal finds that any issues in relation to non-refoulement obligations that exist are not relevant to the matter before it.
Impact on Victims
Paragraph 12.3 of Direction No 65 requires the Tribunal to assess the:
… impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where that information is available and can be disclosed to the non-citizen being considered for visa refusal.
On the evidence before it, the Tribunal finds that Ms A has now ended her relationship with BNVM and has no intention of interacting with him in the future. There is no evidence before the Tribunal that she will be impacted in a negative way should BNVM’s visa be granted.
This factor thus weighs in favour of the Tribunal granting BNVM his bridging visa.
CONCLUSION
Having been convicted of a sexual offence against a minor, BNVM does not pass the character test in s 501(6) of the Migration Act. This is not in dispute.
In determining whether to exercise its discretion to refuse BNVM a bridging visa, the Tribunal has attached significant weight to the fact that BNVM committed a sexual crime against a minor – specifically, by engaging in sexual intercourse on four occasions with the 16 year old daughter of his former partner.
The Tribunal has taken account of the following factors detailed in paragraph 13.1.1 of Direction No 65:
a)sexual crimes are viewed seriously – noting that BNVM was convicted of having unlawful sexual relations with a his former wife’s daughter;
b)crimes against vulnerable members of the community (such as minors) are serious – noting that BNVM engaged in sexual conduct with a 16 year old girl who was in his care at the time the offence occurred;
c)the sentence imposed by the courts for crimes – noting that in relation to BNVM, a custodial sentence was ordered despite BNVM having no previous criminal record.
On the evidence before it, the Tribunal finds that BNVM should, as per paragraph 6.1 of Direction No 65, expect to be denied the privilege of staying in Australia.
The Tribunal also finds that there remains an unacceptable risk that BNVM may engage in further criminal conduct if he remains in Australia and that the Australian community will, as a consequence, be at risk. In making this assessment the Tribunal has considered the nature of the harm to individuals or the Australian community should BNVM engage in further criminal or other serious conduct and the likelihood of further criminal or other serious conduct, taking into account information and evidence in relation to the risk of BNVM re-offending. BNVM has taken few if any positive steps towards rehabilitation for his sexual misconduct and shows little appreciation of the seriousness of his sexual misconduct. In the circumstances, the Tribunal believes that there is an ongoing risk of reoffending and, as such, an unacceptable risk to the safety of the Australian community.
Given the nature of the sexual crime committed, the Tribunal is also of the view that the Australian community would expect that BNVM’s visa would remain cancelled.
In relation to any considerations that weigh in favour of BNVM, the Tribunal notes that there is no evidence that the victim of his sexual misconduct will suffer if he is granted a visa. To the extent that this can be seen as a countervailing consideration, it does not, on balance, outweigh the primary considerations referred to above, which should generally be given more weight.
Overall, the Tribunal finds that having regard to all of the primary considerations and other relevant considerations required to be taken into account by the Tribunal under Direction No 65, and on the evidence before the Tribunal, the correct and preferable decision is to refuse to grant BMVM a bridging visa.
DECISION
For the reasons outlined above, the decision under review is affirmed.
I certify that the preceding 103 (one hundred and three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr C Kendall.
................[sgd]........................................................
Administrative Assistant
Dated: 5 May 2017
Dates of hearing: 1 and 2 May 2017 Applicant: In person (unrepresented) Representative of the Respondent: Mr A Gerrard Solicitors for the Respondent: Australian Government Solicitor
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