Carelse (Migration)

[2022] AATA 2637

Carelse (Migration) [2022] AATA 2637 (20 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dean Carelse

CASE NUMBER:  2205200

Home Affairs REFERENCE(S):               BCC2022/1155572

MEMBER:Tim Connellan

DATE:20 April 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 20 April 2022 at 4:37pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions imposed – no criminal conduct requirement – criminal record – possession of child exploitation material – grooming – risk of reoffending – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cl 050.223; Schedule 8, Condition 8564

CASES
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant Mr Dean Carelse a Bridging E (Class WE) visa under s 73 of the Migration Act 1958 (Cth) (the Act).

2.Mr Carelse applied for the visa on 4 April 2022. At that time Class WE contained two subclasses: Subclasses 050 and 051. In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 050 visa, which are set out in Part 050 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this matter, the primary criteria include cl 050.223 which states:

The Minister is satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it.

3.The decision to refuse to grant the visa was made on 6 April 2022 on the basis that the delegate noted that if a bridging visa was issued it would be subject to condition 8564 which states that the visa holder must not engage in criminal conduct. The delegate was not satisfied Mr Carelse would abide by that condition.

4.Mr Carelse appeared before the Tribunal at a video hearing on 14 April 2022 to give evidence and present arguments. The Tribunal also received oral evidence from his sister, Ms. Cindy Lombard who is an Australian citizen.

5.For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

BACKGROUND (from Community Status Resolution Interview notes & Primary decision)

6.Mr Carelse was born in South Africa and a citizen of South Africa and last entered Australia on 02/01/2020 on a Temporary short skill (GK482) visa which was granted on 03/07/2019 with lawful till date 03/07/2023.

7.His GK482 visa was cancelled on 19/05/2021 under s116(1)(b) due cessation of his employment with his sponsor, Matthew Flinders Anglican College effective 06 October 2020. He was employed as a school teacher. He did not seek review of this decision and has an application for a student visa (TU500) still going with the Department – lodged on 10/12/2020 so prior to his GK482 cancellation. 

8.On 30/03/2022, Mr Carelse was detained under s189(1) upon his release from criminal custody.

9.On 04/04/2022, Mr Carelse applied for a BVE from detention on the grounds that he has applied for a student visa on 10/12/2020 and is awaiting the outcome. The application and supporting documents contained in BCC2022/1155572.

10.Mr Carelse provided the following documents to support his BVE application -

·     Passport and Driver Licence

·     Bank Statement

·     Sister’s invitation for accommodation upon his release from detention 

·     Confirmation of Enrolment (COE) - Certificate III in Fitness (Course Start date; 14/04/2022; Course End Date: 26/01/2023). 

11.In the primary decision the delegate noted the application for a bridging visa was made on the grounds that Mr Carelse had applied for a substantive student visa (TU500) for which he was awaiting an outcome.

12.The primary decision noted that the delegate was not satisfied the applicant met 050.223 of the Bridging Visa E regulations being: the Minister is satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it

13.in the primary decision, the delegate focused on Condition 8564 which would be attached to the applicant’s bridging visa is granted.

14.Condition 8564 states: the holder must not engage in criminal conduct if the visa is granted.

CHARGES AND CONVICTIONS

You were charged and convicted with:

Fourteen (14) counts of Indecent Treatment of a Child Under 16;

Indecent Treatment of Child under 16 (take photograph etc) – x 14 (on 28/11/2019) - On All charges: Conviction recorded. Sentenced imprisonment: 6MO. To be suspended for: 3Y after serving: 271D.

One (1) count of Possess Child Exploitation Material; (on 20/02/2021) –

Conviction recorded. Sentenced imprisonment: 2Y. To be suspended for: 3Y after serving: 271D.

One (1) count of Grooming Child Under 16;

Grooming Child under 16 years or Parent or Carer of child under 16 years – facilitate procurement of child to engage to Engage in Sexual Act (between 01/01/2020 & 16/02/2021) - Conviction recorded. Sentenced imprisonment: 12MO. To be suspended for: 3Y after serving: 271D.

One (1) count of Observations or recordings in breach of privacy;

Observations or Recordings in Breach of Privacy without consent when person is in a private place (on/about 01/12/2020) - Conviction recorded. Sentenced imprisonment: 6MO. To be suspended for: 3Y after serving: 271D.

Five (5) counts of Stealing as a Servant or Clerk and

Stealing by Clerks and Servants x 5 (between 14/07/2019 & 07/10/2020) - Conviction recorded. Sentenced imprisonment: 7D. To be suspended for: 3Y after serving: 271D.

Two (2) counts of Forgery between July 2019 and February 2021

Forge document with intent to defraud x 2 (on 06/02/2021) - Sentenced imprisonment: 7D. To be suspended for: 3Y after serving: 271D.

15.These matters were finalised at Maroochydore District Court on 30/03/2022. Time spent in prison: 271days between 02/07/2021 & 29/03/2022. On 30/03/2022, you were then detained by Australian Border Force under s189 upon release from criminal custody.

CONSIDERATION OF CLAIMS AND EVIDENCE

16.The issue in this case is whether if granted the visa, the applicant would abide by condition 8564.

Whether the applicant will abide by conditions - cl 050.223

17.Clause 050.223 requires that the Tribunal is satisfied at the time of decision, that if a bridging visa is granted to the applicant, the applicant will abide by any conditions imposed on it. Conditions that may be imposed on a Subclass 050 visa are provided for in Division 050.6 and set out in Schedule 8 to the Regulations. Division 050.6 also sets out conditions to which the visa is subject.

18.When considering cl 050.223, the Tribunal must consider which conditions, if any, should be imposed and whether it is satisfied that the applicant would abide by those conditions. In deciding the question of whether the applicant would abide by conditions imposed, the Tribunal is to consider the likely conduct of the applicant. In that context, relevant considerations may include the applicant’s past immigration history, in particular any previous breaches of immigration laws, the significance of the migration laws that were breached, the wilfulness with which those laws had been breached, whether there were any mitigating circumstances justifying their breach and whether the applicant had shown any contrition for their unlawful conduct: Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289 at [15]-[16].

19.The Tribunal considers that if a Bridging visa was granted in these circumstances, it should include the following conditions:

·8101 - No Work

·8207 - The holder must not engage in any studies or training in Australia.

·8401 - The holder must report at a time/or times, at a place specified by the Minister.

·8506 - The holder must notify Immigration at least 2 working days in advance of any change in the holder's address, and

·8564 - The holder must not engage in criminal conduct.

20.The Tribunal does not believe the imposition of a security bond would assist in securing compliance with conditions imposed on the visa, therefore the Tribunal does not recommend the visa be granted subject to the imposition of a security bond.

The Hearing

21.The applicant made a number of prehearing submissions containing many common themes. For example in a document dated 7 April 2022 regarding the primary decision, he states while I acknowledge that it has been stated that my offending is viewed as repetitive criminal charges and convictions to be serious in nature, I would like to state that my offending applies to a short period in my life and can be grouped together by the nature of offending as opposed to be ongoing and evident of repetitive in behaviour. It was repeatedly claimed that his offending was for a short period of his life and while he could not explain it, it had occurred at a time of loneliness.

22.Multiple references were made regarding his lack of past criminal record/history and claims that he would not reoffend and that he had undertaking steps at rehabilitation including the engagement of a clinical psychologist.

23.The applicant also provided information about what he called his ‘Contribution to Australian Society’ which detailed a number of positions where he had volunteered his time particularly with regards to rugby and water polo as a coach and referee.

24.In a document dated 12 April 2022 under the heading ‘Protocols in Place to Prevent Reoffending’, the applicant stated that he had put certain protocols to ensure he never reoffended including self-arranged professional counselling with a certified professional moving forward with the commencement of these therapy sessions “to start this week”.

25.His sister Cindy Lombard who gave oral evidence at the hearing in a pre-hearing submission dated 7 April 2022 stated “I can confirm that Dean has engaged in and confirmed professional counselling sessions with a clinical psychologist. (Chris Breedt) These sessions have been confirmed to start as soon as possible and when the opportunity arises’.

26.As will be discussed later in this decision, these statements from both the applicant and his sister were not statements of fact at the time they were made and raise questions of credibility of both the applicant and his sister as reliable witnesses.

27.Early in the hearing, the applicant stated he had read and understood the primary decision. When asked whether he would like to make preliminary comments he stated that he was ashamed of his behaviour for which he took full responsibility as evidenced by his decision to plead guilty and having subsequently answered all questions openly and honestly.

28.He repeated that he had no criminal history and was keen to ensure this was a chapter of his life that was closed, despite the fact that he would live with it for the rest of his life. The fact that it had generated publicity worldwide meant that all his friends and sporting contacts were aware of recent events.

29.The applicant repeatedly stated that his offending had applied to a short period in his life at a time of loneliness and he gave assurances that he would not reoffend. The Tribunal therefore has some concern that when at the hearing, discussing his offences against children he made the statement that he was “going to get over it” which the Tribunal takes to mean he is not fully convinced that his past behaviour of offending may not re-occur.

30.The applicant was first arrested in March 2021, when it was discovered he had approximately 2,000 images of child exploitation material on his mobile phones. When asked about the material at the hearing and it was put to him that such a volume of material must have been gathered over an extended period of time, his response was ‘not necessarily an extended period of time but yes a period of time’. He stated he did not wish to discuss the matter further and had no comment as it was a matter to which he had been charged and pleaded guilty.

31.The applicant also pleaded guilty to the charge of “Grooming a child under 16 years of age or the parent or carer of a child under 16 years of age, to facilitate procurement of the child to engage in a sexual act”. This charge noted the offence had occurred between 1 January 2020 and 16 February 2021.

32.The Tribunal considers these matters to be grave criminal offences and finds the period of offending conflicts with the applicants claim that it was for a ‘short period’.

33.Early in the hearing when asked if he had any preliminary comments, the applicant stated he felt that two of the charges, being those of Grooming and Theft “were not 100% true and had been taken out of context”.

34.The Tribunal finds this to be an unusual statement given his decision to plead guilty to all charges and raises concerns as to whether he accepts the gravity of the charges and his contrition is genuine.

35.As referred to briefly earlier in this decision, a number of submissions were made about engaging professional counselling in the form of a psychologist to aid with rehabilitation and the prevention of re-offending.

36.On 7 April 2022, a submission was received from Cindy Lombard (applicant’s sister) in which she stated “Dean has engaged in and confirmed professional counselling sessions with a clinical psychologist, Chris Breedt. These sessions have been confirmed to start as soon as possible and when the opportunity arises.

37.On 12 April 2022 a submission by the applicant stated: Self-arranged professional counselling with a certified professional moving forward with the commencement of these therapy sessions to start this week.

38.Neither of these statements were accurate when they were made. There are emails on file from the psychologist Chris Breedt who explains he works between South Africa and Germany, working online (with South African patients?) when not in South Africa. In an earlier email to Cindy he stated that he was leaving for Germany for approximately 3 months on 8 April and asked her to keep this in consideration.

39.In the last email exchange, on 10 April Dean emailed stating “Thank you so much for agreeing to assist with regard to my ongoing professional support upon my return to South Africa…. I will be in touch

40.The following day (11 April 2022, Chris Breedt responded stating “Keep me informed. I have flown to Germany for the next 3 months but I am still consulting online because I have a second home here in Germany. When you are ready for consultations let my secretary Natasha know and we can start”

41.It is clear from the correspondence particularly the last email of the psychologist that no sessions had been booked or confirmed.

42.The applicant is seeking to stay in Australia. If he was genuinely seeking the support of a clinical psychologist, the Tribunal believes he would have identified a suitable professional and made arrangements for counselling.

43.Not only do the mis-statement of facts raise concerns about the credibility of the applicant and his sister but the Tribunal believes that email exchanges with a South African based psychologist currently re-located to Germany for 3 months regarding providing help to the applicant in Australia should his BVE be granted, are not a genuine attempt to access professional help but a disingenuous presentation to the Tribunal to support his visa application.

44.The applicant and his sister claim that if he is released from detention he will live with her and her children.

45.The Community Status Resolution Interview Notes list Onshore Family/relatives as Australian sister Cindy Lombard who resides on the Sunshine Coast with her family (husband and two children).

46.At the hearing, the applicant referred to his sister as ‘a single parent”. When questioned about this he stated that she and her husband had separated and not lived together for 4-5 years. He said his sister lives with her children, a 16 year old daughter and son who is 12 or 13. He stated his sister was a medical representative and her job involved spending much of the week travelling in country Queensland requiring her to engage baby sitters. A job that he presumably would do if released.

1. In pre hearing submissions it was repeatedly stated that the applicant’s case had received extensive media coverage in Queensland and South Africa.

2. The Tribunal put to the applicant information under 359AA. The information included the content of a number of press articles, particularly from News 24 (South Africa). The applicant stated he understood why the information was relevant and important.

3. In a statement of 8 April 2022, the applicant stated “I have no criminal history nor have I ever been the recipient of any investigation….”

4. The Tribunal asked the applicant about media reports that stated that in the early 2000’s he had been suspended from Gray High School in Port Elizabeth (SA) and been asked to leave the school boarding hostel.

5. He responded stating he believed the media reports were bias and misleading. He stated that following an allegation, he had agreed with the headmaster to a “cautionary suspension’ pending investigation of allegations. He stated that those investigations cleared him of any wrongdoing.

6. He satisfactorily responded to a number of other issues.

7. The Tribunal acknowledges the applicant’s statement that he will abide by all conditions especially condition 8564 if granted a BE, however the Tribunal has a number of concerns.

8. The applicant’s evidence at the hearing that he felt the charges, particularly those regarding “Grooming” and “Theft” were not 100% true and were taken out of context, despite the fact he pleaded guilty to all charges leads the Tribunal to question whether the applicant’s remorse and contrition are genuine.

9. The Tribunal is concerned about the applicant’s repeated claim that his offending applied to a short period in his life. The Tribunal finds that the offending which led to his charges and convictions, particularly with regards to ‘possession of child exploitation material’ and ‘grooming’ were conducted over a period of well in excess of a year which the Tribunal does not accept as being a short period of time but rather evidence of his being a serious repeat offender and means the Tribunal is not satisfied he will comply with condition 8564 if released into the community.

10. The Tribunal does not accept that the evidence provided of communications with an overseas clinical psychologist demonstrate a genuine attempt to pursue counselling but rather have been conducted in an attempt to persuade the Tribunal of his intention to pursue rehabilitation.

11. The Tribunal has considered the reasons the applicant provided for why he should be granted a Bridging visa E but does not believe they outweigh the potential for his failure to comply with condition 8564 which would be placed on any Bridging visa granted.

12. While refusal of his Bridging visa E application may cause emotional hardship, I place greater weight on the fact he has repeatedly committed serious criminal offences in general disregard for Australian laws and values, particularly to his young victims and am not satisfied that his being granted a visa may not lead to further risk to the Australian community.

1. On the evidence before it, the Tribunal is not satisfied that the applicant will abide by conditions imposed on the visa if granted. Therefore, the applicant does not meet cl 050.223.

2. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

3. The visa application is also an application for a Subclass 051 (Bridging (Protection Visa Applicant)) visa. The applicant is not a relevant eligible non-citizen as set out in cl 051.211 of Schedule 2 to the Regulations and therefore does not meet the requirements for the grant of that visa.

   DECISION

4. The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

   Tim Connellan
   Member