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

[2022] AATA 808

Bumrungros and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 808 (21 April 2022)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2022/1129
GENERAL DIVISION	)

Re: Chotika BUMRUNGROS
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent

DIRECTION

TRIBUNAL:  Mr Rob Reitano, Member

DATE OF CORRIGENDUM: 25 July 2022

PLACE:           Sydney

IT IS DIRECTED that, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, the text of the decision in this application is to be altered such that:

1. the wording of the decision is changed to:

I set aside the delegate's decision and, in its place, substitute a decision not to refuse the Applicant a Student (Temporary) (Class TU) Visa under section 501 of the Migration Act 1958 (Cth).

2.the wording in paragraph [94] of the decision is changed to:

I set aside the delegate's decision and, in its place, substitute a decision not to refuse the Applicant a Student (Temporary) (Class TU) Visa under section 501 of the Migration Act 1958 (Cth).

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

Mr Rob Reitano,
Member

Division:GENERAL DIVISION

File Number(s):      2022/1129

Re:Ms Chotika BUMRUNGROS

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr Rob Reitano, Member

Date:21 April 2022

Place:Sydney

I set aside the delegate's decision and, in its place, substitute a decision not to refuse the Applicant a Student (Temporary) (Class TU) Visa.

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

Mr Rob Reitano, Member

CATCHWORDS

MIGRATION – refusal to grant visa on character grounds – whether the Applicant passes the character test – whether there is a risk that the Applicant would engage in criminal conduct – Direction 90 – whether there is more than a minimal or remote chance that the Applicant would engage in criminal conduct – where Applicant has pleaded guilty to two offences – where Applicant asserts alternative facts to those in criminal proceedings – whether Tribunal can consider alternative facts to those in criminal proceedings – decision set aside and substituted. 

LEGISLATION

Migration Act 1958 (Cth) ss. 499, 501

CASES

EPU19 v. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536

HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202

Minister for Immigration and Border Protection v Ali [2000] FCA 1385

SECONDARY MATERIALS

Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Mr Rob Reitano, Member

21 April 2022

1. Chokita Bumrungros (Applicant), a citizen of the Kingdom of Thailand, has asked the Tribunal to review a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) under s.501(1) of the Migration Act 1958 (Cth) (Act) refusing her application for a Student (Temporary) (Class TU) Visa (Visa).

2. I have decided to set aside the delegates decision and to substitute a decision not to refuse the Applicant a Student (Temporary) (Class TU) Visa. The following are my reasons for that decision.

   THE REGULATORY FRAMEWORK

3. The issue is informed by s.501(1) of the Act which provides:

   (1)  The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

4. The effect of s.501(1) is that if the Minister, in this case through his delegate, is satisfied that an applicant for a visa passes the character test there is no basis for refusing a visa. If the Minister is satisfied that a person does not pass the character test, a further issue arises about whether the discretion to refuse a visa should be exercised. The discretionary basis for refusal does not arise here because I am satisfied that the Applicant passes the character test.

5. Sub-section 501(6) provides many ways in which a person may be found not to pass the character test. The only basis upon which the Minister suggested the Applicant did not pass the character test was that in s.501(6)(d)(i) which provides:

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

   …

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

   (i)  engage in criminal conduct in Australia;

6. Sub-section 501(6)(d)(i) requires the making of an assessment about whether there is a ‘risk’ that the Applicant ‘would engage in criminal conduct in Australia’. That assessment  involves a consideration of past conduct, usually previous criminal offending, as well as conduct after any such offending, which will often involve issues around remorse and rehabilitation for past offending. This is the nature of the ‘probabilistic assessment’ to which Perry J referred in EPU19 v. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536 at [182].

7. When dealing with a review of such a decision, the Tribunal stands in the place of the Minister, or his delegate, or as is often said stands in the shoes of the Minister, or his delegate. That is, the Tribunal makes the decision and referred to as though it were the original decision maker addressing the legislative test afresh.

8. Further, the Tribunal is required to apply Direction 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction). That is because s.499 of the Act provides that the Tribunal is, in exercising its functions and powers, bound to conform to the terms of any Ministerial direction.

9. The Direction specifically deals with s.501(6)(d) by providing that the:

   …grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.

10. In particular, the Direction provides:

    …it is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past’ and that ‘[t]here must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act’.

11. The Direction is clear that the conduct which is relevant is ‘conduct for which a criminal conviction could be recorded’. Naturally enough conduct for which a criminal conviction could be recorded is conduct of a serious kind.

    THE THRESHOLD ISSUE

12. Before turning to the facts, it is necessary to deal with a threshold question arising from the Applicant having pleaded guilty to two offences in criminal proceedings in the Local Court. The pleas were based on facts which were in some respects at odds with some of the facts that were described by the Applicant in a document she filed in the Tribunal three business days before the hearing (which I will refer to as the ‘Applicant’s statement’) which was supplemented by some oral evidence she gave that was translated from Thai to English through an interpreter. The Applicant’s statement was written by her in her first language, Thai, and was translated by a certified translator into English. The Minister, at least initially, relied on the facts in the statement of facts that was before the Local Court.

13. The Applicant’s statement appears to be the only document that has been prepared at any time that deals in detail with the Applicant’s own version of events concerning the criminal offences that was prepared in her first language, Thai. There were some other documents prepared on her behalf that set out aspects of what the facts were said to be but none of them seem to have been translated from Thai or translated from English to Thai.

14. It is necessary to put those documents in context before going further. The Applicant studied English in Australia after her arrival in March 2013 and completed other courses of study to which I refer later that were delivered in English. Despite having studied English, and despite her completing other courses of study in English, care needs to be taken in assuming that she understood each and every document and each and every word of those documents that were prepared for her in English or read to her in English. This is because English is her second language. In June and July 2019 when interviewed by Mr Borkowski, a psychologist to whom I refer to later, and an officer of the Department of Communities and Justice, formerly the Department of Corrective Services, (Department) both considered it necessary to use a translator. It is clear that other documents that recorded things about this case were not prepared using a translator and were not translated to Thai if they were read to the Applicant before she signed them.

15. It was suggested that it was ‘implausible’ because of the courses the Applicant did in English, and because of the other courses she completed that were delivered in English, that she did not read and understand what had been written in English. It needs to be borne in mind that someone who has had documents prepared for them by their representatives, lawyers and migration agents, who they were paying might trust those people to accurately reflect things and equally that those others might make mistakes that go undetected. Those with experience in using affidavits or witness statements in proceedings can usually recount much about the problems that often present themselves with documents prepared by others that do not use the words of the person recounting the facts or for some other reason do not accurately reflect was meant to be said. The Applicant’s case presents the added dimension of potential misunderstanding by her lawyers or migration agent and in turn by her because of her likely less than complete command of English. The prospect that things might get lost in the translation is very real. It is necessary to be careful about too readily finding inconstancy and drawing adverse conclusions about credit.

16. For example, simple things like the Applicant referring to her personally having lent money at one point in a document and later in the same document referring to the money as being lent ‘to us’ need to be approached very cautiously. The later reference is to two words hanging at the end of a sentence towards the end of a two page document that could easily be overlooked, missed, or misunderstood, especially in the context of the loan having been explained at the beginning of the document as being personally from her.

17. Likewise, she was not to understand that references in documents prepared by others for her signature, or even by her by the time she well knew who he was as the perpetrator of the violence associated with the offending, to ‘Mr Ghamrawi’ would later be taken to mean, absent express reference to the contrary, that she had ‘known him’ other than on the two occasions on which the offences were committed. The likelihood is that his name was used because by the time the documents were prepared the author of them knew who he was, and the Applicant took the authors word and later used his name in the same way.

18. I do not consider any differences between what the Applicant said in earlier documents to that contained in her statement and oral evidence before me reflect adversely upon her credit, but rather are largely attributable to having been prepared by others and her likely acceptance that they were accurately understanding and portraying the facts as she had delivered them. As will be seen I generally consider the Applicant to have been a truthful witness despite some apparent inconsistencies in some of the detail of her evidence. The latter does not, in my view, significantly adversely affect her credit.

19. Returning then to the present issue about the differences between the statement of facts in the Local Court and the Applicant’s statement and oral evidence. It will be seen when I deal with the facts that there are aspects of the Applicant’s statement that are, on the face of things, different from what was admitted in the criminal proceedings by reason of her plea of guilty, conviction and sentence. Although there are some different facts, I do not consider that they affect the outcome of this review. It is nonetheless necessary to resolve the issue as to which facts I prefer in determining the matter. 

20. The issue is whether I should treat the evidence of the conviction and sentence as being informed by the factual matters upon which they were based and therefore proceed on the basis that the facts in the criminal proceedings are the facts upon which I should determine this matter; or, alternatively, whether I can or should depart from them having regard to the Applicant’s statement which changes those facts.

21. In HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 (HZCP) the Full Court of the Federal Court of Australia considered the issue, albeit in a different context, under different sections of the Act. Nonetheless the reasoning that led the Full Court to its conclusion is the same that should be applied here.

22. In HZCP, McKerracher J approved the approach adopted by Branson J in Minister for Immigration and Border Protection v Ali [2000] FCA 1385 at [43] where her Honour, after reviewing the authorities, expressed the position so far as the Act was concerned:

    . . . as requiring a decision-maker under s 200 of [the Migration Act] to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted (see Spackman at 635). This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing.

23. Colvin J at [190] adopted an approach that was materially no different, observing that it was not that there was a ‘different ultimate burden’ or some ‘special character’ that underscored the principle but rather ‘that the compelling nature of such findings gives them a quality that will be difficult to contradict’. Colvin J said at [191]:

    However, unless there is a compelling reason to doubt the integrity of the process by which a person was convicted and sentenced or a compelling explanation as to why a particular factual foundation should not be accepted, administrative decision-makers will not meet their obligation to make findings based upon logically probative material if they make contrary findings. A convicted defendant who advances a contrary version of events without a compelling explanation as to why the criminal proceedings should not be taken as proof of the facts underlying a conviction or sentence will not provide a logically probative basis upon which to doubt the veracity of those underlying findings. The type of explanation that may meet this requirement may be different where there is a plea of guilty said to have been induced by other considerations than when there was a conviction after trial by judge and jury. In an instance where there is a challenge to facts that underpin sentencing, it may depend upon the nature of the process undertaken at the time of sentencing, particularly whether facts were formally stipulated for that purpose. In this case such questions do not arise because, for the reasons given by McKerracher J, the facts that provided the foundation for the criminal conviction and sentence of the appellant were part of the foundation for the power to revoke.

24. Derrington J referred to the need for ‘[d]ue respect and evidentiary weight’ of a high standard of proof and cautioned against ignoring the ‘salutary warnings that administrative tribunals ought not too readily gainsay the outcome of the criminal justice process’.

25. I consider that there is a sound basis, or ‘compelling explanation’, as to why the ‘particular factual foundation’ of the Applicant’s conviction and sentence should not be accepted. There are four particularly important reasons for my conclusion in this respect.

26. First, the facts were put forward in the context of pleas of guilty to two criminal offences. The pleas were likely to have followed from other considerations, namely the Applicant’s need to be rid of the proceedings once for all. It is also relevant to consider the likelihood that a plea of guilty based on the facts advanced by the prosecution would only, most probably, have incrementally affected the outcome so far as any sentence was concerned.

27. Second, there is no evidence before me that would suggest that the facts submitted in the Local Court were understood by the Applicant both as to their content and their ramifications, especially, for this matter, should pleas of guilty be entered and sentence proceed on those facts. In this respect, the fact that English is the Applicant’s second language is significant as is the fact that it seems she has very little familiarity with legal processes and especially criminal processes, not least of which is because this was her first excursion into the criminal justice system.

28. Third, affecting both of those matters is the distress that the criminal proceedings were having upon her, which can be seen from the observations in Mr Borkowski’s and Mr McMillan’s evidence to which I refer below. Mr Borkowski refers to her suffering from symptoms associated with depression, depressed mood, anxiety, and stress at the time. Further, Mr McMillan directly observed that she was ‘very distraught’, ‘deeply troubled’ ‘extremely fearful of her circumstances and very alone in a system she did not understand’. Mr McMillan was not invested in the proceedings, said those things a long time ago and was, in my assessment, a balanced and honest witness. The kinds of things he said about the Applicant’s mental state lend very much to a conclusion that it is more probable than not that the Applicant was, at the time of her pleas of guilty, more likely concerned with getting out of the situation in which she had found herself more than anything else.

29. Finally, there was the Applicant’s evidence, which I accept, that she was told by her lawyer to plead guilty so that she would not continue to incur costs and that she did whatever her lawyer told her because she had paid him. Whether the advice was sound is immaterial, although as far as avoiding the time, cost, and expense of litigation is concerned it probably was, but it did mean that potentially she would be stuck with facts that made things perhaps a little worse so far as her visa status was concerned. I should add here it was suggested that Mr McMillan paid the Applicant’s legal fees, but that is not entirely correct as Mr McMillan referred to the fact that the Applicant paid some of the fees back to him. It is also possible that Mr McMillan did not necessarily know what the Applicant’s total legal fees were even though he paid for some of them.

30. Of course, overlaying all of those matters is the fact that having seen and heard the Applicant give her evidence I consider that she is, generally speaking, a witness of truth. There was also, so far as important or significant matters are concerned, much consistency with what she said and what was alleged against her in the Local Court: she personally lent money to someone she at least initially did not know or did not know well, she sought the help of someone who knew her and knew the borrower so she could be repaid, she did not know that a knife or violence would be used or was intended.

31. I will indicate the larger differences between what underlaid the conviction and sentence and why I consider that it would not affect the outcome where necessary, but for now it is sufficient to say that, where there is conflict between the facts that were the subject of the conviction and sentence and the Applicant’s statement, I prefer the version in her statement.

    THE FACTS

1. The Applicant was born in Roi Et in northeast Thailand. She is 40 years of age. Her parents and her older sister still live in Thailand as does her extended family.

2. The Applicant lived with her parents until she was about 21 years of age when she moved to live in Bangkok. She is close to both parents who she has had contact with almost every day since she first came to Australia. Her parents are both retired with her father having worked as a public servant and her mother as a teacher during their working lives.

3. In Thailand the Applicant completed a Bachelor of Tourism degree and a Master’s Degree in Information Technology. She had stable employment with a number of employers in Thailand including the Ministry of Commerce, a medical laboratory and in a restaurant.

4. In March 2013 the Applicant came to Australia and has lived in Australia since then because she has held student visas. In Australia, the Applicant has completed a number of courses in English, Massage, Business and most recently a Diploma of Marketing. She has worked as a cleaner and a part time masseuse in Australia. When the Applicant arrived in Australia a friend of hers from Thailand was already living in Australia and from that relationship she made some friends. The Applicant is a practicing Buddhist who attends temple.

5. The Applicant is in good physical and mental health, although as a result of her criminal offending she was considered to be suffering from symptoms associated with depression, depressed mood, anxiety and stress in June 2019. The Applicant has no history of substance, drug or alcohol abuse, violence, or other anti-social traits or behaviour and until the offences in mid-2018 she had no history of criminal offending in Thailand or in Australia.

6. In about April 2017 the Applicant lent some money to someone known as Somruedee Sriboran (otherwise known as Yui). Although the facts in the criminal proceedings suggested the Applicant and Yui did not know each other at the time, in this review it was made clear that the Applicant knew of Yui because they had worked together at the same massage parlour, although it appears that they had only spoken on the phone when some money was first lent by the Applicant to Yui. They met in person a few weeks later and after that more money was lent and the two became better acquainted. The Applicant did not know the money she lent Yui was to fund a gambling habit, she was led to believe that the money was to assist with Yui paying for medical costs associated with the care for her mother who was, according to Yui, in hospital.

7. It was suggested that there was ‘uncertainty’ about the Applicant’s motives for lending the money to someone she did not know and that it was ‘implausible’ that she would do so especially given her own limited resources. As unusual as the facts were that presented themselves, I do not consider that they are implausible in the sense that I should not accept that they happened. There are many things that present themselves where people are involved that are unusual or out of the ordinary. That does not mean they did not happen.

8. At least initially the loan was for only a few thousand dollars. A short time after that the Applicant came to know Yui in person and then lent her more money, it seems much more money, after that. That was consistent with what she told Mr Borkowski in mid-2019 (when a translator was available) as far as borrowing money to lend to Yui was concerned. The Applicant said she trusted Yui and wanted to help her. Although the circumstances are highly unusual, I consider the Applicant was motivated by her desire to help Yui and that, in effect, she trusted Yui and had the wool pulled over her eyes about Yui’s plight, in particular her mother’s claimed illness and hospitalization, but also about funding her son’s school fees. That was consistent with what the Magistrate was told in the Local Court about there being no commercial character to the lending.

9. The arrangement concerning the loan was simple. An initial sum was advanced to Yui by bank transfer. At least some of the loan monies were obtained by the Applicant from another of her friends who was from Thailand. Later her other friend was reimbursed by the Applicant’s sister. The Applicant arranged for her sister to reimburse the friend. The facts in the criminal proceedings suggested that it was agreed Yui would pay back the loan in full, together with interest at the rate of five per cent, being charged for each week the loan was outstanding. There was reference to that in some of the other documents which was probably taken from the statement of facts. The Applicant denied in her evidence that interest was ever discussed. It is probably immaterial, but I accept her denial. The repayments were to be made each week. Almost immediately there seemed to be something of a problem. Although repayments were made in small amounts, further amounts were also advanced as loans over a period of time. This was a little curious given that money was not being paid back but I accept the Applicant’s evidence that Yui was begging her for more money, and she succumbed to that and the promise of repayment.  The loan totalled something like $37,000 at one stage. In this review the amount was said to be as high as $40,000 at one time, but again the difference is immaterial.

10. After November 2017 things went awry when repayments were not being made or not being made in the requested amounts or with the expected frequency. Between November 2017 and the end of May 2018 Yui had only managed to repay about $3000 in total with the amounts being repaid reducing in size and frequency over that period. By about April the Applicant started ‘demanding’ (this was the word used in the facts in the criminal proceedings, but I suspect having heard the evidence that ‘asking for’ is probably more accurate, but other than the fact that the word ‘demanding’ makes things sound more aggressive it probably does not matter much) repayments of $1000 a week and Yui saying to her she could not make those repayments.

11. The Applicant became frustrated because she was not being repaid with any regularity and was being told she would be repaid when Yui had the money to do so. She was also having difficulties locating Yui in person. It seems Yui was making herself scarce. According to the facts in the criminal proceedings the Applicant phoned Yui saying words like ‘you need to pay back no less then $1,000 per week, this is what uncle wants.’ In one call she said: ‘The money came from uncle, he is dangerous and is capable of anything. If you go back to Thailand, you will be followed and your family and child will be hurt. If you go anywhere you will be followed.’. Having heard the Applicant’s evidence in this review I am not persuaded those words were said or, at least, were said by the Applicant. I am not persuaded those words were said by the Applicant particularly because at that time, as I refer to later, the Applicant did not know ‘uncle’. I do not doubt the Applicant was at the time more probably than not seeking repayment in the phone calls. If anything is clear about what was going on at the time it was that the Applicant was telephoning Yui trying to do something about the fact that she was not being paid back. 

12. There is some difference between the Applicant’s statement and the facts in the Local Court so far as the events of 9 June 2018 are concerned. In the Local Court facts it is said that Yui asked the Applicant to lend her a further $1500 and the Applicant suggested that Yui speak to Ms Suwannaphruek (otherwise known as Phi Nui). Phi Nui was someone who knew Yui and someone who a friend of the Applicant suggested the Applicant speak to about the problem concerning the lack of repayment from Yui. In the Applicant’s statement the Applicant said that Phi Nui told the Applicant she was taking Yui to see ‘another lender’ and the Applicant should come with her.

13. On either view Phi Nui arranged with Yui to meet with someone who was claimed to be another lender, who turned out to be Mr Ghamrawi (otherwise known as Sam) who was, so it seems, also known as ‘uncle’. Sam was not known to the Applicant, although there was a suggestion in the criminal proceedings that she knew Sam before then. The Applicant’s counsel, however, said in the Local Court that 9 June 2018 was the first time the Applicant met Sam. I accept the Applicant’s evidence that she had only met Sam on two occasions, which are the two occasions that I refer to in this decision. Again, it was suggested that it was unlikely that someone who did not know the Applicant, Phi Nui, would help the Applicant, but given they had a mutual friend it is not entirely implausible that Phi Nui might offer to help. It is also relevant that Phi Nui probably  knew Sam before that day as it was she who suggested that everyone meet at his house.

14. Later the same day the Applicant, Phi Nui, Sam and Yui met. They met at Sam’s house. Again, in the criminal proceedings it was said that that the Applicant was at Sam’s house when the others arrived for the meeting and in the hearing before the Tribunal she said that she arrived after them. The difference, once again, seems immaterial. 

15. There are two versions of what happened at the meeting. The facts in the criminal proceedings were to the effect that there was some shouting at the meeting which appears to have had as its focus arrangements concerning repayment of the loan from the Applicant to Yui rather than the making of another loan. Sam at one stage grabbed Yui’s handbag, emptying it onto the floor saying, ‘Did you take Bumrungros’s money, why haven’t you returned it to Bumrungros?’ and ‘Wouldn’t you feel sorry for your child if something happens to him?’ The Applicant produced some documents and ‘demanded’ (a word that made a regular appearance in the facts in the criminal proceedings) that Yui sign them. One of the documents recorded the outstanding debt amount which was claimed to be $50,000 and referred to how much would be repaid a week, which was $500, even though Yui said she could not pay that amount. Yui said she feared for her life with the other three people surrounding her and that she did not believe she could leave. Eventually Yui was driven home by the Applicant and Phi Nui.

16. The other version of the meeting was that given in the Applicant’s statement which was that the meeting was cordial, a written contract concerning the loan was produced for signing, Yui signed the contract, each of the people present had dessert and talked, and then Yui and the Applicant were driven home by Phi Nui. I accept that this is most probably what happened, and I refer to what I have already said about the Applicant being a witness of truth in my assessment of her.

17. Further, it should be noted that so far as the Applicant’s involvement at the meeting is concerned, it would appear that the main difference between the two versions lay in her ‘demand’ that the contract be signed. If there was shouting or anything intimidatory that took place it does not appear on either version that it was because of anything the Applicant said or did, although she was present on the former version of events when threats and intimidation, the shouted words and the emptying of the handbag, happened. As I have said I do not accept that those things did happen.

18. I should also add that I do not think it adds much to the equation to speculate about why Sam might have behaved aggressively either on this occasion or on some later occasion. Little is known about him or his relationship to Phi Nui. He may have thought, as some people often do, that aggression was the best way to help secure for the Applicant repayment of her money. There are countless reasons he may have behaved aggressively and speculating about them is, as I have said, unhelpful.

19. On 7 July the Applicant and Phi Nui had a telephone conversation with Yui in which the Applicant sought to increase the repayments. The telephone call concluded with Phi Nui saying that if the increased repayments were not made the total amount of the loan would increase to $60,000. It is slightly significant that Phi Nui was speaking to Yui on the phone seeking repayment on behalf of the Applicant because that may explain the reference to ‘uncle’ in the phone call on 9 June, that is if the words referred to were said they may well have been said by Piu Nui. Again it is not helpful to speculate about that.

20. On 9 July 2018 the Applicant sought some repayments which she wanted made immediately, but Yui told her she would pay what was contained in their agreement.

21. Late that night the Applicant, Phi Nui and Sam went to Yui’s home. The Applicant said she drove there with Phi Nui and Sam arrived on his own. The Applicant was not expecting Sam to be there. Again, there are differences between the versions of what happened in the criminal proceedings and in the Applicant’s statement.

22. In the criminal proceedings it was said that what happened was that at the front door the Applicant said, “You’ve got the money why don’t you pay?” The reference to ‘you’ve got the money’ was motivated by a photo that the Applicant had seen on social media depicting Yui’s husband with large amounts of Australian dollars and suggesting he was bound for Thailand to purchase a motor bike. Yui said she had no money. Sam then ‘barged through the door’ and grabbed Yui’s husband (who is known as Tong) by the neck saying, ‘Give me the money, give me the money’. He drew a knife and put it up at Yui’s husband’s neck making what was described as a ‘superficial cut’ to his neck. He then pointed the knife to Ms Sriboran’s husband stomach. There was something of a struggle with Tong suffering further cuts to his forehead and stomach. The Applicant asked where Yui’s iPad and phone were. Sam punched Tong three times to the face and chest, cutting his lip. The Applicant, Phi Nui and Sam proceeded to ransack the house in search of valuables which were placed in a suitcase. A demand was made by Sam that Yui and Tong sign their car over. A list was drawn up of what was taken, and the Applicant, Sam and Phi Nui left with the valuables and the car. The property taken was estimated to be worth about $7000 or $8000.

23. The facts in the Applicant’s statement are different. In particular, she said in her statement she did not see how things escalated between Sam and Tong but at one stage she and Phi Nui tried to pull Sam away. She also said that Yui told her that if there were valuable items in the house, she could have them. So far as violence is concerned on either version, the Applicant did not carry any of it out, perhaps with the exception of the ransacking referred to in the criminal proceedings which is not what is described in the Applicant’s statement. Again, I accept the Applicant’s evidence and her most recent account of what happened, although it does not, in my assessment, change much, mainly because there was no personal violence on her part on either version.

24. It is very important that there was no suggestion in the criminal proceedings, nor in the Applicant’s statement, that the Applicant knew that Sam had a knife before Sam pulled it out. The Applicant said through her counsel in the Local Court proceedings that Sam arrived five minutes after her, and when questioned in the hearing before me she said that he arrived after her. She did not know Sam would be present. Nor does it appear that she had any idea what Sam was proposing to do so far as personal violence against Tong was concerned. There was certainly no evidence of any prior planning between the Applicant, Phi Nui and Sam in either version as far as any resort to personal violence, nor violence to property such as stealing or ransacking, is concerned. The Applicant strongly asserted in her evidence before the Tribunal that she did not plan for any violence and did not intend for any violence to occur at all. She also said if she knew that violence was to occur she would not have gone to Yui’s house. I accept her evidence.

25. The goods that were taken ended up at Sam’s house. The Applicant was asked why this was so given that she claimed that Yui told her she could have them and give them back when she was paid. It was not made very clear why this was so but I do not think too much store should be put in it. Sam was the person ‘helping‘ the Applicant recover her money and the Applicant had no interest in having Yui’s things. It is a little unsurprising that she may have been indifferent to where the goods landed or that they could be left with Sam until the money was paid back.

26. In the early hours of 10 July 2018 Yui and Tong reported the matter to the police. Later that day some of the goods that were taken and the car were found at Sam’s house. There was apparently also found at Sam’s house, according to police records, some ammunition and a rifle that were apparently not secured or stored in accordance with the requirements of the Firearms Act 1966 (NSW). Some police went to the Applicant’s house but she did not open the door because she was scared. That is a little unsurprising.

27. On 11 July 2018 Phi Nui and the Applicant went to Kings Cross police station and identified themselves as two of the people involved in what had happened a few days earlier. The effect was to identify themselves as being involved in the offences. The Applicant was arrested and interviewed. She made admissions about being at the premises and assisting in taking the property but indicated she did not wish to answer any further questions. The Applicant was charged with a number of offences, some of which were later withdrawn.

28. On 8 May 2019 the Applicant wrote a letter addressed to the ‘Presiding Magistrate, Burwood Local Court’ in which she acknowledged that what she had done on both dates was ’very wrong’ and that she ‘should not have done it’. She expressed her sorrow and said that should ‘never do it again’. She also said she hoped when ‘the court proceedings finished’ that she could ‘do something for the community to make amends for her actions’. That letter was written in English and did not descend to any detail remotely approaching the detail in her statement provided to the Tribunal.

29. On 3 June 2019 a Sentencing Assessment Report (Report) was prepared by a Community Corrections Officer (Officer) employed by the Department. The Report was for the purpose of providing information to the court relevant to sentencing. The Officer expressed the opinion that the Applicant was ‘unable to identify the ongoing impact on the victim or the community’ of her offending and that she saw herself as the victim and ‘places the responsibility for the violent offending on the others present during the offence’. The Report contained nothing about the detail of what was said or the reasons that informed those conclusions. The Applicant was recorded as being co-operative and significantly ‘expressed a willingness to engage in interventions with Community Corrections’.

30. In the Report there is reference to the Officer applied the Level of Service Inventory – Revised (LSI – R) to assess the Applicant’s risk of reoffending. The LSI – R is an often used measure of recidivism although strictly it has as its purpose, as its name suggests, identifying the level of future service required for criminal offenders. The outcome of the LSI -R inventory was that the Applicant had a low level of risk of general re-offending. The Report also telegraphed that if the court were to make a supervised order the Department would suspend that supervision (save in limited circumstances that are not relevant here) in accordance with regulatory powers that were available because of the low risk of reoffending. That reflected an apparent comfort that the risk of re-offending was low.

31. On 5 June 2019 Mr Borkowski, a forensic psychologist, completed a report of his own to be used for the purpose of the sentencing proceedings. Mr Borkowski expressed his opinion about the risk associated with the Applicant committing criminal offences again. He too applied the LSI – R arriving at the same result as the Officer who had administered the same test a few days earlier. Mr Borkowski’s report listed the Applicant’s ‘strengths and protective factors that suggested he (sic) would be a low risk of future offending’ which included her having ‘no prior criminal history, she demonstrates prosocial values and beliefs and there is no evidence of antisocial rationalizations to support a criminal lifestyle’. Mr Borkowski expressed the opinion that at the time of the offences the Applicant’s psychological state ‘appears to have manifested in clouded judgment, irrational decision making, and affected her ability to apply assertiveness and effective problem solving strategies, which seems to have led to her actions that resulted in the current charges’.

1. Mr Borkowski recommended that the risk of future offending ‘would be effectively managed should she have access to the following multi-services treatment options’. He then referred to ‘psychological intervention’ to develop various skills, vocational training and employability skill development, he noted the Applicant had a history of application to study, vocational training and employment, and the establishment of social support networks.

2. On 26 June 2019 the Applicant was convicted of two offences. The first was an offence of stalk/intimidate with the intention of causing fear of physical harm contrary to s.13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) committed on 9 June 2018. The maximum penalty for that offence is five years imprisonment and a fine of $5500. The second offence was that of remaining in a building or on land with an intention to commit an indictable offence contrary to s.114(1)(d) of the Crimes Act 1900 (NSW) (Crimes Act) committed on 9 July 2018. The maximum penalty for that offence is seven years imprisonment. A third offence of assault occasioning actual bodily harm contrary to s.59 of the Crimes Act was taken into account in sentencing for the other offences, but she was not convicted of having committed that offence. The maximum penalty should that offence have proceeded to sentence is seven years imprisonment because it was committed in company.

3. For the first offence the Applicant was placed on a community corrections order for 12 months and for the second offence was placed on community corrections order for 15 months. A condition of the second community corrections order was that the Applicant undertake 100 hours of community service work.

4. A community corrections order is an alternative to a custodial sentence made under the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW). The mandatory conditions for such orders are that the offender must not commit any offences and must appear before a Court if requested to do so while the order is in force. A discretionary condition imposed on the Applicant’s order was that she was subject to supervision by the Department which required her to comply with, amongst other things, reasonable directions about ‘programs, treatments, interventions or others related activities’. As will be seen that condition was almost immediately suspended.

5. The Magistrate, when imposing the conditions as to supervision, must have been well aware that the Department proposed to suspend that condition in accordance with regulatory powers allowing it to do so because it had been referred to in the Report. Although another condition that may be imposed under such orders is that the offender be required to participate in rehabilitation or treatment during the currency of the order no such condition was imposed when the orders were made. Again, that was in circumstances where the Magistrate was well aware of Mr Borkowski’s suggestion about psychological intervention.  A breach of any condition of a community corrections order exposes an offender to an application for revocation and to be resentenced for the offence to which the order applies.

6. When sentencing the Applicant, the Magistrate did not express any view about the likelihood of reoffending but did express the opinion that what happened involved the Applicant ‘trying to …  get your own money back and that it has really clearly escalated and got out of control’. The Magistrate did not express the view that the offending was premeditated, if anything such a view seems contrary to the reference to matters ‘escalating’. The Magistrate concluded the sentencing by saying ‘I have seen the background you come from and that this is completely out of character and I’d hope that you never get involved in this again.’

7. On 2 July 2019 the Department, as anticipated, suspended the supervision condition which, as I have already observed, was, according to the records, a function of the level of risk that the Applicant’s re-offending was considered to pose. 

8. On 15 October 2019 an officer of the Department recorded in a file note:

   Ms Bumrungros is subject to a CCO with 100 hours commencing 26/6/19 and expiring 2/9/20 for the offences remain in building w/I to commit an indictable offence. She attended all scheduled dates, was well regarded by her assigned agency and completed all hours on 2/10/19.

9. The time taken to complete the 100 hours community work was the minimum time it could have been completed in as the Department was only able to arrange something like 24 hours community work in any one month.

10. On 23 January 2020 the Applicant was returning to Australia from overseas when she was asked to complete an incoming passenger card which contained a declaration that she made which was to the effect that she did not have any criminal convictions. The Applicant explained her incorrect answer in her statement as being the result of her belief that the question was directed at whether she had something that had occurred in Thailand or whether there was an existing matter that was pending in Australia. She regarded her experience the previous year with the criminal proceedings as over by then and did not understand that even though she had been punished she was ‘somebody who has a criminal case with me [to my name] for all my life in Australia’.

11. On 29 May 2020 the Applicant submitted her application for the Visa and declared that she had not been charged or convicted of any offence in any country. The Applicant said in her statement she was of the same belief in answering the question on that application as she was when she answered much the same question on the incoming passenger card.

12. On 16 September 2021 the Department of Home Affairs issued the Applicant with a notice of intention to consider her visa application inviting her to comment on adverse information which concerned her criminal offending to which I have referred and her apparent failure to disclose that information to the Department.

13. On 7 October 2021 the Applicant submitted a Personal Circumstances Form responding to the Department of Home Affairs’ notice in which she said, amongst other things, she was remorseful for her offending, apologised for her error in the incoming passenger card and that she had ‘expanded her circle of friends of friends out of the Thai community into the wider international student community’. This is one of the documents which I will treat carefully as I am uncertain that the Applicant read and understood its contents.

14. As part of the criminal proceedings the Applicant provided a character reference from Mr Stephen McMillan, who had known her for five years, which attested to her good character. Mr McMillan said in another reference dated 4 May 2019 to the Court that he knew the Applicant when she worked as a casual domestic cleaner and said she struck him ‘as a very hard worker’. It is significant that he assisted her shortly after she was charged with the offences when she had contacted him. At that time Mr McMillan observed that she was ‘very distraught’, ‘deeply troubled’ ‘extremely fearful of her circumstances and very alone in a system she did not understand’. In the months following her being charged Mr McMillan helped the Applicant and said that he got to know her very well and that he regarded her as a person of good character.

15. Mr McMillan provided another reference dated 22 September 2021 as part of this application that confirmed his opinion that he had no ‘concerns regarding her honesty’ and that he ‘found her to be trustworthy’. Mr Guy Harding, who had known the Applicant for eight years, and Mr Peter Williams who has known her for ‘a number of years’ also provided character references that attested to the Applicant’s character as well. Mr Williams knew her as a result of having employed her as his casual cleaner, attesting to her work as being of ‘high standard’ and she as being ‘trustworthy’. His observation that he believes ‘she…makes a fine contribution to those around her’ is particularly instructive. The Applicant also gave evidence about having three or four close friends who she spoke to each week and who she might see two or three times a week. She also said that she attended temple once a month although that has reduced in more recent times.

    DOES THE APPLICANT PASS THE CHARACTER TEST?

16. As I have already observed, the only basis upon which the Minister contended that the Applicant did not pass the character test was because if she were allowed to enter or to remain in Australia, there is a risk that she would engage in criminal conduct in Australia. In my assessment there is, in the words of the Direction, insufficient evidence to suggest that there is more than a minimal or remote chance that the Applicant, if allowed to enter or remain in Australia, would engage in criminal conduct.

17. There are very many factors taken together or individually that comfortably lead me to conclude that the there is nothing more than a minimal or remote risk that the Applicant would engage in criminal conduct should she be entitled to enter or remain in Australia.

18. First, the offending took place in very unusual circumstances that are unlikely to happen again. The Applicant, having lent a significant amount of money to help someone who she thought was in need and who then failed to make repayments as promised, was confronted with the potential loss of a substantial sum of money, something like $40,000. She tried to do something about it and achieved little, having received repayments of only about $3,000 over about a year. This was in a context where information available to her on social media suggested that the borrower had the capacity to re-pay her. Those kinds of circumstances are unlikely to present themselves again. 

19. Second, the Applicant did not have any familiarity with the Australian legal system that would have equipped her well with a means of recovering what she had potentially lost. She acted on the advice of others who, in my assessment, she genuinely believed could help her. The notion of a meeting to discuss and to document the loan was not really all that remarkable. That things might escalate, and voices become raised, is also not all that extraordinary if that happened, which in my view of the facts it did not. In any event, any raised voices and emptying of the handbag was not her conduct. Nor, as things turned out, was it something she could by then control. In the scheme of things, it was not at the high end of criminal conduct, especially when consideration is given to her part in things. Her role in anything so far as the second offence also seems to be very much at the margin, she had no say in what Sam was doing and when she saw what he was doing she tried to stop it. Her involvement in both offences was, more than anything else, the result of her being present when the offences, and in particular the violence, occurred rather than as her being responsible for any violence. In particular, I have accepted her evidence that she would not have gone to the house if she knew there was to be violence.

20. Third, I reject the suggestion of any pre-meditation by her in relation to either of the offences or the violence. Her only part in any ‘premeditation’ was her idea to have an agreement executed which, in and of itself, was not surprising and hardly amounted to planning criminal offending. It was probably ill advised to attend a meeting with two others to secure that outcome because it was likely to have the exact effect it had, namely, to intimidate Yui. So far as the second offence was concerned there was no evidence at all about any ‘premeditation’ or anything that would support that suggestion. The facts in the criminal proceedings eschewed the notion that the Applicant knew of the existence or proposal to use the knife. There is nothing that would suggest that she was aware Sam would resort to violence. In fact, she did not even know he would be there. The only thing that seems to have been premeditated so far as the second offence was concerned was that she would confront Yui about why she was not repaying her in circumstances where Yui appeared to have money to do so. That is unremarkable. The Magistrates observation that things escalated is contrary to the notion of premeditation.  

21. Fourth, the evidence places her risk of criminal reoffending in the low range. Although the ‘low range’ is not to be equated with ‘minimal or remote’ it is well in that direction. Of course, the LSI – R provides no category of ‘minimal or remote’ or even of ‘no risk’. Further, the objective indicators such as the existence of a loving and stable upbringing, the lack of any history of substance or alcohol abuse, the history of stable employment and ongoing study, the lack of any other offending or history of violent conduct as well as her introduction to the criminal justice system at a fairly advanced age are all factors indicative of nothing more than a minimal or remote risk of future criminal offending. The Magistrate’s observation that the offending was ‘completely out of character’ is very apposite.

22. Fifth, it should not be presumed that her sentence did not serve any purpose. A purpose, perhaps the dominant purpose, of criminal sentencing is rehabilitation. That she successfully completed the period of her community corrections orders and the conditions imposed, including the one concerning community work, is important as they should be taken to have had a rehabilitative effect. The fact that the community work was undertaken with such diligence, being completed in about the minimum possible time, indicates some commitment to the process. That and her resolve not to put herself in anything like the same position again is contrary to the suggestion of any ‘lack of motivation to adequately address the causes of her offending behaviour and effectively manage her future risk of reoffending’. 

23. Sixth, there is the profound effect that her offending has had carrying not just the likely deterrent effect of punishment but of her whole experience with the criminal justice system and her visa refusal. The effect that the whole episode has had on her is more than just some casual or passing matter as the evidence of Mr Borkowski and Mr McMillan confirm. That effect is likely to be a lifelong reminder and deterrent for her against criminal offending. 

24. Seventh, although Mr Borkowski recommended ‘psychological intervention to develop coping skills to manage depressed moods and anxiety, and, the development of assertiveness and problem solving skills, and to improve self-confidence’, it is significant that neither the Magistrate nor the Department  appear to have considered that important enough to either make it a condition of the community corrections orders in the case of the Magistrate or to give a direction about it before suspending the supervision order in the case of the Department. Further, Mr Borkowski’s report does not consider whether his opinion about psychological intervention would change in the event that the Applicant went through a process of rehabilitation involving a community corrections order over a period of 15 months and was, as part of that order, required to undertake community service work. It is also to be remembered that almost four years have now passed since the offending and three years since Mr Borkowski’s report, and the Applicant has not reoffended. The Applicant’s life appears to have moved on since then.

25. So far as the need to develop social support networks, I note that the Applicant engaged with Mr McMillan shortly after her offending for a period of many months and he provided her with much support since then and she has, apparently, extended her network of student friends as well. I note too she has three or four close friends that she sees on a regular basis. Some of them are friends that she appears to have made since the time of her offending, some appear to be newly made friends.  Whether she has extended her network of friends sufficiently in accordance with what Mr Borkowski suggested is unclear but again given that much has passed under the bridge in terms of time and events  since his report I place much less weight on his recommendations than I might otherwise do.

26. Eighth, the Applicant expressed remorse in no small way two days after her second offence when she stepped into Kings Cross police station and admitted to what had happened and her involvement in those things. Although she was aware that the police were looking for her, her conduct in turning herself in is significant. It is conduct that is not generally attributable to someone who is likely to commit criminal offences in the future. Her repeated expressions of remorse in her letter to the ‘Presiding Magistrate, Burwood Local Court’, in her plea of guilty to the criminal offences and in these proceedings are important. Good people make mistakes, even better people own them.

27. Ninth, the Applicant’s obvious shame in now understanding that she has a ‘criminal case with me [to my name] for all my life in Australia’ is a real demonstration  of her character. It is only necessary to add that her statement to the effect that others were responsible for the violence does not, in the view I take, undermine any contrition: on either view of the facts, whether those she pleaded to or those in her statement, it is a very accurate description of who was responsible for the violence.

28. I should deal with several other matters that were raised as suggesting a different outcome. First, there is no evidence that the Applicant had or has ‘an association’ with Sam. The evidence which I accept is that she met him twice because someone else considered he might assist her in recovering money. Nor is there any evidence that the firearm and ammunition found at the house was ‘unauthorised’. The evidence is that there was a firearm and ammunition that was not properly stored at Sam’s house. In any event it is very difficult to understand what that has to do with the Applicant. Second, the observation in the Report that the Applicant could not identify any ‘ongoing impact on the victim or the community’ presumes some level of understanding of what that means on the Applicant’s part which, in the case of someone who speaks English as a second language and who has no familiarity with the criminal justice system, is unlikely. At one level, one might well ask how the Applicant would or would be expected to know anything of the ongoing impact on the victim. Third, her statement that she thought she was a victim reflects that she was likely to be out of pocket about $40,000 and, as things turned out, wrongly relied on others for help. The ‘help’ she got was such as brought her to the Local Court at Burwood and, ultimately, where she is today. Fourth there was a suggestion that she did not accept responsibly because she has not provided a full version of events. In my view the Applicant did the best she could to explain the events as they occurred. 

29. Finally, her explanation of misunderstanding about the questions asked of her on the incoming passenger card and the visa application are explanations that I accept and for which she has apologised. Her answers neither show an intention to mislead nor are they indicative of someone who is disposed to dishonesty and wrongdoing. Far less do they suggest that she is a person who would commit criminal offences in the future. Making that mistake does not provide evidence that suggests she will commit criminal offences in future.

30. The evidence leads me to conclude that the risk of the Applicant engaging in criminal offences in future if she is permitted to enter or remain in Australia is no more than minimal or remote. I am not satisfied that there is a risk that the Applicant would engage in future in conduct for which a criminal conviction could be recorded if she were allowed to enter or remain in Australia.

1. I am satisfied that the Applicant passes the character test in s.501(6)(d)(i) of the Act so that the condition for refusing her a visa in s.501(1) is not met. It follows that the delegate’s decision should be set aside and substituted with a decision not to refuse a visa.

   DECISION

2. I set aside the delegate’s decision and substitute a decision not to refuse the Applicant a Student (Temporary) (Class TU) Visa.

I certify that the preceding 94 (ninety -four) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member

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

Associate

Dated: 21 April 2022

Date(s) of hearing:	13 & 14 April 2022
Applicant:	In person
Solicitors for the Respondent:	Ms C Campbell, HWL EBSWORTH LAWYERS