Chapagai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 4735
•17 December 2021
Chapagai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4735 (17 December 2021)
Division:GENERAL DIVISION
File Number(s): 2021/7554
Re:Ramu Chapagai
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:17 December 2021
Place:Sydney
The decision under review is set aside and, in substitution, the Applicant’s visa cancellation is revoked.
......................................[sgd]..................................
Chris Puplick AM, Senior Member
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction 90 – protection of the Australian community – nature and seriousness of offending conduct – risk of reoffending – expectations of the Australian community – impediments to removal – strength, nature and duration of ties to Australia – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 501 and 501CA
CASES
CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858
CZCV and Minister for Home Affairs (Migration) [2019] AATA 91
DKXY v Minister for Home Affairs [2019] FCA 485
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Kura v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1478
Minister for Home Affairs v HSKJ [2018] FCAFC 217
PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Department of Foreign Affairs and Trade, DFAT Country Information Report Nepal (1 March 2019): no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
United Nations Office of the High Commissioner for Human Rights, Nepal must now deliver on promise of social justice: align="left">World Bank, Nepal Development Update (12 April 2021):
REASONS FOR DECISION
Chris Puplick AM, Senior Member
17 December 2021
Mr Ramu Chapagai (the Applicant) was born in 1979 in India although he is of Nepalese ethnicity and citizenship.[1] He lived in India where he completed schooling (to Year 12) and worked in an agricultural job until he was approximately 19 or 20 years of age. He then resided in Nepal from 1997 to 2008. Again, his work was primarily agricultural.
[1] Report of Chafic Awit (Registered Psychologist) dated 3 December 2021 (2nd Awit Report).
He first arrived in Australia in February 2008 (aged 28 years) and has made this his home, with occasional trips back to his country of birth.[2] He was the holder of a Five-Year Resident Return (Class BB) (Subclass 155) visa.
[2] G-documents at 61-62.
It appears that the Applicant has thus spent one-third of his time living in India, Nepal and Australia respectively.
On 26 October 2020 he was convicted of the offence of “sexually touch another person without consent” and was sentenced to a term of imprisonment of 24 months (with a non-parole period of 20 months).[3] On appeal this sentence was reduced to 15 months (with a non-parole period of 6 months).[4]
[3] Ibid at 35-39.
[4] Ibid at 31.
Apart from this, the Applicant has only one other recorded offence (in November 2018), when he was convicted of the offence of driving with a middle-range PCA (prescribed content of alcohol). For this offence he was fined and had his drivers’ licence suspended.
The October 2020 conviction triggered an automatic cancellation of the Applicant’s visa.
Subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) provides that the Minister (the Respondent) must cancel the visa of a visa-holder who has been convicted to a term of imprisonment of 12 months or more on the basis that they are defined as thus having “a substantial criminal record”.[5] Being so convicted and having a substantial criminal record means that a person has failed the “character test” set out in subsection 501(6) of the Act. Visa cancellation in these circumstances is mandatory and the cancellation occurred on 26 March 2021.
[5] Paragraphs 501(6)(a) and 501(7)(c).
The Act goes on to provide that where a person has had their visa cancelled on character grounds they may appeal to the Minister for a revocation of that visa cancellation if there is “another reason” why that should occur.[6] In doing so they are invited to make representations in support of the cancellation revocation, and on 23 April 2021 the Applicant did so.[7]
[6] Sub-paragraph 501CA(4)(b)(ii).
[7] Paragraph 501CA(4)(a).
Those representations were considered by a Delegate of the Respondent who, on 7 October 2021 found that there was no other reason why the visa cancellation should be revoked.[8]
[8] G-documents at 9-10.
On 15 October 2021 the Applicant applied to this Tribunal for a review of that decision. The matter was heard on 10 December 2021, with the principal parties and their representatives appearing in person, with witnesses using the Microsoft Teams platform and appearing by phone in accordance with the Tribunal’s COVID-19 protocols. The Applicant and one of the witnesses were assisted by an interpreter in the Nepalese language.
As required by paragraph 500(6L)(c) of the Act a determination of this matter must be made by the Tribunal by 30 December 2021, otherwise the decision under review is taken to be affirmed.
VISA CANCELLATION: PROCESS AND THRESHOLD
Cancellation of a visa in these circumstances is a two-stage process. The first involves a determination, as a matter of fact, that a visa-holder has been sentenced to a term of imprisonment of 12 months or more. If that is the case, then the person is deemed to have failed the character test and their visa is cancelled automatically. The second stage is a consideration of whether “another reason” exists for that decision to be revoked.
There is no disagreement that the Applicant fails the character test by reason of his sentencing on 26 October 2020 and so the only task now before the Tribunal is consideration of the Applicant’s representations that “another reason” exists why that decision should not be affirmed.
Before turning to consider the Applicant’s claims in support of his application for the visa cancellation to be revoked it is necessary to set out in considerable detail the facts regarding the Applicant’s life history, his medical history and his offending history.
THE APPLICANT’S PERSONAL NARRATIVE
The Applicant was the eldest son in an extended family of (then) 9 members including his parents.[9] He arrived in Australia in February 2008 accompanying his first wife as a dependant on her student visa and remained her visa dependant until she acquired permanent residency in 2013.
[9] Applicant’s Statement dated 19 November 2021.
That relationship ended in 2013 or 2014 and the Applicant married his current wife in 2016.[10]
[10] G-documents at 27. Mr Awit gives a divorce date of 2013 but the Applicant affirmed in oral evidence it was 2014.
According to the initial report by Mr Chafic Awit (Registered Psychologist) this first marriage was an “arranged” marriage and the second marriage was to a woman with whom he had been in a relationship predating his first marriage.[11] Indeed, at the time of his first “arranged” marriage, he already had two children with the second wife, a son born in around 2006 and a daughter, about whom he initially was unaware who was born in around 2008, when he was already in Australia.[12]
[11] Report of Chafic Awit dated 15 March 2021 (1st Awit Report) at 3.
[12] Given in oral evidence.
The Applicant claims that as the eldest son that, together with his father, he was responsible for the financial support of his whole family. His father passed away in 2012 and the entire burden then devolved upon the Applicant. The passing of his father left the Applicant feeling seriously depressed and this depression was exacerbated by his financial responsibilities.
In 2016 he returned to Nepal to help care for his mother who suffered from a variety of serious health problems. He remained in Nepal for approximately six weeks (in July and August 2016)[13] during which time his mother initially recovered her health.
[13] G-documents at 61.
In 2017 he established a small business (a takeaway food store) but this business venture failed in April 2019. The Sentencing Assessment Report presented to the Court makes reference to an accumulated debt of some $20,000 (which also takes into account his gambling behaviour and other poor financial decisions).[14]
[14] Respondent’s Tender Bundle at 46.
Commencing in around 2012:
“…Mr Chapagai found himself turning to alcohol more frequently as a means of numbing himself from the grief he felt as well as the financial pressure he was under.”[15]
[15] 2nd Awit Report at 3; Applicant’s Statement dated 19 November 2021 at 4.
The following year:
“…Mr Chapagai also found himself developing a gambling habit. Initially he has turned to this as a means of trying to relieve his financial pressures and to numb his thoughts, but over the span of the next six (6) years this in itself became another stressor which exacerbated his underlying Depression condition.”[16]
[16] Ibid.
It was reported in the Applicant’s oral evidence that this gambling took place on the poker machines in a number of venues and involved regular losses of $400-$500 per week.
In 2017 the Applicant lodged an application to bring his wife, son (now aged 12 years) and daughter to Australia.
However, on 4 September 2020 his daughter (then aged 12 years) died suddenly.[17] His mother had also recently died (in May 2020) leaving the Applicant in a state of extreme emotional distress.[18]
[17] 1st Awit Report at 3.
[18] Applicant’s Letter dated 25 May 2021, G-documents at 59.
THE APPLICANT’S MEDICAL HISTORY
The Applicant is a man of 41 years of age and there are no indications that he suffers from any degree of physical ill-health or incapacity. There appears to be no history of any illicit drug use.
Apart from the Sentencing Assessment Report prepared for the Court by Ms Natalie Pearce, dated 15 September 2020, to which reference will be made later, the Applicant has been assessed on two occasions by a psychologist, Mr Chafic Awit. His reports of 15 March 2021 and 3 December 2021 come to the same basic conclusion with a diagnosis, based on both interviews and psychometric testing of:
“Major Depressive Disorder; Alcohol Use Disorder (in early remission) and Gambling Disorder.”[19]
[19] 1st Awit Report at 1; 2nd Awit Report at 1. The earlier report referred to both the “Alcohol Use Disorder (in early remission) and Gambling Disorder” jointly as “Substance Use Disorder (in early remission)”.
The second report of Mr Awit also contains a detailed treatment plan which is primarily based upon the Applicant’s continued attendance at Alcoholics Anonymous, supervision by Mr Awit for 6 months and participation in a plan of Cognitive Behavioural Therapy (CBT).[20]
[20] 2nd Awit Report at 4-5.
THE APPLICANT’S OFFENDING RECORD
With the exception of the PCA offence, the Applicant has only one criminal offence on his record, that of “sexually touch another person without consent”.
The summary of details of this offence are set out in the decision of the Minister’s Delegate in refusing the initial application for visa cancellation revocation and, as they accord with the remarks of the Sentencing Magistrate,[21] the Tribunal adopts them as an accurate narrative.
“[16] …At 11:30pm on 16 December 2019, the victim, who was then aged 19, was at a hotel in Newcastle where Mr CHAPAGAI, then aged 40, was playing pool. The female victim joined him in playing and Mr CHAPAGAI began supplying her with alcohol. He then began to tell the victim he loved her, kissing her on the cheeks and cuddling her.
[17] At 2:30am the following morning, Mr CHAPAGAI and the victim moved to the pokies room until they were asked to leave 20 minutes later. Mr CHAPAGAI and the victim then walked to his vehicle, which was parked at the rear of the hotel. He asked the victim to get into the vehicle so they could talk and he would later drive her home.
[18] Concerned that Mr CHAPAGAI may have been too intoxicated to drive, the victim initially declined his offer. After he convinced her that he was fit to drive, she got into the passenger seat and Mr CHAPAGAI began driving, but not at first towards the victim’s home. He then went in that direction, but when they drove around the block and passed her house, the victim asked Mr CHAPAGAI why he had failed to stop and he replied that there was nowhere to park, then turned into another street and parked. Mr CHAPAGAI told the victim that he could help her get a job. The victim said to Mr CHAPAGAI that she needed to go to the toilet, got out and proceeded to urinate nearby. As she did so, Mr CHAPAGAI approached her but she yelled at him not to come near her.
[19] When she finished, Mr CHAPAGAI approached her again and began to hug her. He then asked her to get into the back of the vehicle with him, shut the door and began telling the victim that he loved her and that he saw potential in her, having known her a long time. Mr CHAPAGAI attempted to kiss her on the lips, lick her face and squeeze her breast. In the course of the assault, the victim attempted to film the incident on her phone whilst pushing Mr CHAPAGAI away, pleading for him to stop and asking him why he was doing it. Mr CHAPAGAI responded that he loved her and said to put her phone down.
[20] Seeing her attempts to film, Mr CHAPAGAI grabbed the phone and asked the victim, ‘Don’t you trust me or something?’ He put the phone down and moved to the passenger side floor, with his upper body leaning over the victim’s knees. Mr CHAPAGAI then pulled the victim’s bra down and licked both of the victim’s breasts. She again attempted to push him off and asked him to stop. Mr CHAPAGAI said ‘No, I love you, think about the money, I’ll give you $100’. He then continued his assault by rubbing the victim’s vagina on the outside of her jeans. He then placed his fingers down the victim’s jeans in an attempt to undo them. The victim again asked Mr CHAPAGAI to stop and began kicking him before he released his weight from her. She got out of the vehicle and demanded her phone back before escaping.”[22]
[21] G-documents at 35.
[22] Ibid at 21-22.
When the matter was heard before the Newcastle Local Court on 26 October 2020 before Magistrate Miller, the Applicant pleaded guilty. His Honour described the offence as involving “one of the most disturbing sets of facts I have seen for an offence of this nature” and “a matter that is significantly above mid-range and it falls in the upper end of the range of objective seriousness for a matter of this type.”[23]
[23] Ibid at 37.
His Honour recognised that the Applicant had committed one other offence (the PCA matter) which was alcohol-related but was otherwise “a person of good character at the time of commission of these offences, although good character is of less significance in a case where the offender takes advantage of a position that he has in relation to a complainant.” He noted that the Applicant had “some hope of rehabilitation” provided he completed various offender’s programmes.[24]
[24] Ibid at 38.
However His Honour noted that comments in the Sentencing Report in which Ms Pearce (a psychologist with the NSW Department of Corrective Services) had opined that:
“In relation to the matter before the Court Mr Chapagai deflected responsibility for what occurred towards the victim. He indicated that it was her choices that resulted in his impression that she was consenting to sexual engagement.
Mr Chapagai stated, ‘if she knows I’m intoxicated se had no right to get in a car and it is a little bit risky for her. She shouldn’t jump in.’” [25]
[25] Respondent’s Tender Bundle at 45.
His Honour concluded:
“There is a need for punishment for this type of reprehensible conduct. There is a need for general deterrence of the community. People who commit these types of acts on young women or young men should understand that the only sentence they will receive is a sentence of imprisonment. There is a need for this offender for specific deterrence because this offender particularly does not recognise the significance of what he has done and the effect that it has had on the complainant. There is clearly a need to protect the community and there is clearly a need for this offender to be rehabilitated.
…
Taking into account the fact that this is at the very upper end of the range of objective seriousness the maximum penalty, the risks in terms of re-offending, the defendant is convicted.”[26]
[26] G-documents at 39.
The sentence imposed was a head-sentence of 24 months imprisonment with a non-parole period of 20 months.
The severity of this sentence was appealed successfully and varied by the District Court to a terms of 15 months imprisonment with a non-parole period of six months.[27]
[27] Ibid at 31.
The Tribunal notes that the Sentencing Magistrate had before him the Sentence Assessment Report which the learned Magistrate said “does not particularly assist the defendant.”[28] Nevertheless that report assesses the Applicant as “a medium risk” and “suitable to undertake community service work”.[29] The Magistrate noted the Applicant’s “very limited criminal history” but took the view that in this instance there was “a need for punishment for this type of reprehensible conduct. There is a need for general deterrence for the community”.[30]
[28] Ibid at 37. As this refers to criminal proceedings, Mr Chapagai (being the Applicant in this matter) is referred to as the defendant in those proceedings.
[29] Ibid at 38; Respondent’s Tender Bundle at 47.
[30] G-documents at 38.
Unfortunately, there are no further documents or sentencing remarks from the District Court which would assist the Tribunal in understanding the quite significant reduction of the non-parole period as well as the reduction of the head-sentence itself. The District Court also imposed a requirement that the Applicant was to be supervised by Community Corrections for a period of nine months on parole.
It is apparent that the initial report of Mr Awit (dated 15 March 2021) was before the District Court and considered by it, because the Court ordered that it be forwarded to Community Corrections.
The Tribunal presumes that this is an indication that the District Court placed some weight upon the findings and conclusions of that report, and this invites the Tribunal to do likewise.
MINISTERIAL DIRECTION 90
The Direction commences with a Preamble which applies to all parts of the Direction and establishes a number of guiding principles which provide a framework within which decision-makers should approach the task of deciding whether to revoke a mandatory cancellation under section 501CA of the Act.
In particular, the Direction provides inter alia that:
·being able to come to or to remain in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community;
·non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia;
·there is an expectation that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct that raises serious character concerns, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community; and
·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 for a short period of time.
Sub-paragraph 8.1(2) of Part 2 of the Direction starts with a general instruction for a decision-maker to consider the “nature and seriousness of the conduct”.
In terms of the “nature and seriousness of the conduct” the decision-maker is obliged to consider the extent to which the conduct involves crimes of a violent or sexual nature, crimes against women and children and acts of family violence. The decision-maker must also (inter alia) consider the frequency of the offending behaviour and whether it displays a trend of increasing seriousness, the cumulative effect of repeated offending and whether an individual has received prior warning about the consequences of further offending.
It is worth noting that the issue of “family violence” was introduced into MD90 as a major addition from the set of criteria which existed under its predecessor Ministerial Direction 79 (MD79). This reflects a clear statement of government/public policy that crimes of family/domestic violence and violence against women or vulnerable people are to be regarded as matters of exceptional seriousness.
The Direction then elucidates four primary considerations which should generally be given greater weight than the other considerations:
·protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the best interests of minor children in Australia; and
·expectations of the Australian community.
Section 9 of Part 2 of the Direction provides that other considerations must be taken into account where relevant, which include (but are not limited to):
·international non-refoulement obligations;
·extent of impediments if removed;
·impact on victims; and
·links to the Australian community, including:
ostrength, nature and duration of ties to Australia; and
oimpact on Australian business interests.
The Tribunal is required to consider each of the items. However, it should be noted that there is ample High Court authority for the principle that it is up to the Tribunal itself to assess the weight which should be given to each of the respective criteria. Explicitly, it stated in SZJSS that:
[t]he weighting of various pieces of evidence is a matter for the Tribunal.[31]
[31] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [33]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41.
Once weight is assessed for each criteria, where there are competing assessments, it becomes a matter of the Tribunal engaging in a process of “calculus” [32] to arrive at a final determination.
[32] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].
The particular facts in this case mean that a significant number of both the Primary and Other considerations are not relevant for the purposes of this application.
Protection of the Australian Community
The Tribunal must 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.
Nature of the offence
There can be no doubt that the Applicant’s offence can only be characterised as serious. It was an unprovoked assault upon a much younger woman in a situation where she had every reason to believe that she was safe and not at risk. It involved the Applicant in a high state of intoxication persisting in offensive sexual behaviour despite the clear protestation and rejections by the victim.
The Tribunal however recognises that this was a single offence, and that the Applicant had no previous record (other than the PCA offence) of committing offences against any other person.
There is a question of the extent to which the Applicant himself recognises and accepts that his offence was a serious one and that he alone was responsible for it. The Sentencing Assessment Report and the comments of the Sentencing Magistrate emphasise that the Applicant did not take full responsibility for his actions and that he sought to shift some degree of blame or responsibility onto his victim.
A staff member at the Bathurst Community Corrections in her case notes following an interview undertaken prior to the Applicant’s release from custody, dated 30 March 2021 reports that as late as that date:
“…offender denied sexually touching the victim, stated he has apologised as he is very sorry if he did it, but doesn't think he did it; if he did he stated he would have been ‘very drunk’. Minimal victim insight. SAR shows he admitted the offence but claimed it was consensual.”[33]
[33] Respondent’s Tender Bundle at 29.
Obviously, the abuse of alcohol was major contributor in this offending and there is some significant evidence that the Applicant became more and more dependent upon alcohol as he went through a series of emotional traumas associated with the loss of immediate family members and financial difficulty with the effective collapse of his small business.
In oral evidence, which was not challenged by the Respondent, the Applicant stated that he did not start consuming alcohol until approximately 2011 and this level of consumption increased as he coped with the death of his father (in 2012), the failure of his business venture (in 2019) the death of his mother (in May 2020) and the progressive illness and death of his daughter (in September 2020). His PCA offence occurred in November 2018 and his sexual offence in December 2019.
This level of alcohol abuse was not insignificant as Mr Awit’s initial report puts it at the level of “four (4) bottles of scotch a week”.[34] A report from Community Corrections puts it at “approx 5 x 750 ml bottles scotch whiskey per week”.[35]
[34] 1st Awit Report at 3.
[35] Respondent’s Tender Bundle at 29.
It is regrettable that the Applicant did not learn from his previous offence, that of “drink-driving” in November 2018. That offence led to the cancellation of his licence and it should have been apparent to the Applicant that misuse of alcohol could lead to problems with the law and with the imposition of penalties. His offence against the young woman took place just one year later in December 2019.
Risk of further offending
The critical question then becomes whether or not there is a risk that the Applicant might offend again in a similar fashion or engage in other serious misconduct.
The Sentencing Assessment report prepared for the Court determined that the Applicant:
“[h]as been assesses at a medium risk of reoffending according to the Level of Service Inventory – Revised (LSI-R).”[36]
[36] Respondent’s Tender Bundle at 47.
The Sentencing Magistrate stated:
“he has been assessed as a below average risk of re-offending sexually and a medium risk.”[37]
[37] G-documents at 39.
In this he relied upon the report of the Corrective Services psychologist Ms Wallace who had reported:
“The STATIC-99R is an instrument designed to assist in the prediction of sexual recidivism for individuals charged with or convicted of a sexual offence. On the basis of the available information Mr Sharma Chapgai's total score on the STATIC-99R places him in the Below Average Risk range relative to other male sexual offenders.”[38]
[38] Respondent’s Tender Bundle at 18.
Mr Awit in his second report states:
“It continues to remain the opinion of the writer that Mr Chapagai’s risk of reoffending falls in the lower ranges.”[39]
[39] 2nd Awit Report at 4.
Any attempt to predict future behaviour of likelihood of offending must be based upon what evidence there is that the Applicant will be able to manage his alcohol abuse problem. Since the Applicant has been either incarcerated or in immigration detention he has been unable to access alcohol and in his statement to the Tribunal he writes:
“I have not had any alcohol since I have been in jail and immigration detention. I do not have desire for alcohol and I no longer have an alcohol abuse problem.”[40]
[40] Applicant’s Statement dated 19 November 2021 at 4.
Assessing risk of future offending requires some exercise in prediction by the Tribunal. It is often argued, in cases such as these, that the Tribunal should take a very cautious approach because the success of any rehabilitation prospects have not been tested in the community, given that the applicants are likely to have been in both prison and immigration detention for some period of time and not been “at large” in the community since the commission of the offence for which they were sentenced.
That is not quite the case in this instance. The offence took place on 16/17 December 2019 and the Applicant did not appear in Court until 26 October 2020. In this period of some ten months, the Applicant was at liberty in the community and there is no evidence that he in any way came to the attention of the authorities or was involved in any illegal or criminal behaviour.
The Tribunal takes this as an indication of the “one-off” nature of the Applicant’s offending behaviour and his ability to avoid problems with alcohol if and when he sets his mind to it. There is no reason for the Tribunal to believe that this pattern of conforming behaviour would not be repeated in the future.
An important element of rehabilitation is the prospect of stable employment and the Tribunal notes that the Applicant’s former employer, Mr Lei Wang gave both written and oral evidence to the effect that he respected and valued the Applicant as an employee and would re-employ him in a managerial position were he released back into the community.
The Applicant would need to manage his emotional condition, especially regarding continued separation from his wife and son, engage with Mr Awit’s Treatment Plan (supra) and report to Community Corrections in compliance with an outstanding order from the District Court.
Taking all these factors together the Tribunal concludes that, while the offence was a serious one, the prospects such behaviour being repeated is in the low range, that the prospects for the Applicant’s rehabilitation are good and that with stable employment and adherence to a treatment plan, he poses only the most minimal risk to the community.
The Tribunal accepts that this criterion counts against the Applicant, however only to a minimal degree.
Family Violence Issues
The Respondent’s Statement of Facts, Issues and Contentions (SFIC) (at [36]) notes correctly that:
“There is no evidence before the Tribunal to suggest that the applicant has engaged in family violence. This contention does not arise.”
Best Interests of Minor Children
The Applicant concedes in its SFIC (at [32]) that:
“there are no minor children in Australia to whom this primary consideration applies for the purposes of this review.”
The Applicant has a wife and son (and had a daughter, now deceased) who apparently reside in Nepal and who he would like to bring to Australia[41] although his Personal Statement Form gives no details as to their names or ages.[42] The Applicant’s oral evidence indicated that he has five sisters of whom 4 are married and 3 of whom live in Nepal. He has a brother, also in Nepal and there are at least two nephews or nieces, again all resident in Nepal. His only relative living in Australia is his brother-in-law Prakash Bhattarai.[43]
[41] Applicant’s Statement dated 19 November 2021 at 4.
[42] G-documents at 49.
Expectations of the Australian community
Sub-paragraph 8.4(1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.
Sub-paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be or continue to hold a visa.
That norm referred to in the Direction is to be understood as providing that:
·the Australian community expects non-citizens to obey Australian laws while in Australia;
·where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk they may do so, the Australian community expects the Australian Government to not allow such a non-citizen to enter or remain in Australia; and
·non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person not continue to hold a visa.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).
This consideration is about the expectations of the Australian community taken as a whole, and in this respect, decision-makers are required to proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion which is ultimately determinative.[44] That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in MD90 at paragraph 8.4. Although these principles are discussed in relation to the former MD79, those principles are relevantly analogous in principle with respect to MD90.
[44] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J.
It has further been held that the consideration is “[i]n substance … adverse to any applicant” in virtually all circumstances and was indeed, designed to be so.[45]
[45] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] per Mortimer J.
The Tribunal has, from time to time, been urged to place less emphasis upon the authorities cited above but rather rely upon the findings of Griffiths J in DKXY, particularly His Honour’s comment that “nothing in the Direction indicates that the community expectations will always favour non-revocation”.[46]
[46] DKXY v Minister for Home Affairs [2019] FCA 485 at [31]. Emphasis in original.
The Tribunal cannot follow this course of action. In the first place the reference in DKXY was specifically to an earlier Ministerial Direction 65 and secondly, since that time judicial authority has clarified that this part of the Direction must weigh against applicants in order to give proper regard to the expressed policy position of the government.
There is nothing before the Tribunal which would allow it to do anything other than to accept that this criterion weighs against the revocation of the cancellation decision. However, as noted, the weight to be given to his (or any other consideration) is a matter for the Tribunal itself to determine.
In making that determination the Tribunal places this criterion as part of the continuum of considerations and notes that every case presents a different set of circumstances for evaluation.
In this instance the Tribunal must place some weight on this criterion as counting against the Applicant primarily on the basis that the evidence suggests that the Applicant, at the time of the offence had insufficient understanding and insight into his degree of responsibility, sought to cast some blame onto the victim and on the victim and failed to recognise the fundamental point that “stop” means stop and “no” means no.
The passage on 23 November 2021 of the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW) in New South Wales makes it perfectly clear that the Australian community has an expectation that, in matters involving sexual behaviour, consent cannot be assumed or implied but must be explicit. Although the Applicant’s offences took place before this legislation was passed and should not be seen to have retrospective effect in its application to his circumstances, it nevertheless represents a statement of the community norm or expectation at the time of the Tribunal’s determination and informs the weight to be given to this consideration in these circumstances.
This criterion weighs against the Applicant and does so at a more than formal but less than significant degree; its weight is of moderate consideration.
“Other” Considerations
Having considered what the Direction designates as “primary” considerations, the Tribunal must turn to those designated as “other”. As Colvin J has made clear in Suleiman that:
[t]o treat the other considerations as secondary irrespective of its character in this particular case does not conform to the language of Direction 65.[47]
[47] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28]. Ministerial Direction 65 was a precursor of MD90 and was operative from 23 December 2014 to 28 February 2019.
His Honour made it clear that the weight of “other” considerations could, in appropriate circumstances, overbear the weight of the primary considerations to the advantage of the Applicant.[48]
[48] Ibid at [26].
Colvin J’s statement was considered and not disapproved by the Full Federal Court in HSKJ[49] and more clearly supported by Wigney J in FHHM. [50]
[49] Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [31]-[35].
[50] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775 at [21].
This principle has been affirmed in a number of Tribunal cases,[51] for example being made explicit in CFHQ where Deputy President Redfern, referencing Suleiman stated:
…factors set out in Direction 65 as ‘other considerations’ should be given appropriate weight, which may, in some cases, outweigh the primary considerations.[52]
[51] Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947 at [131]-[137].
[52] CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858 at [88].
In Tewhare the Tribunal made it clear that:
While affording to primary considerations more weight than the other considerations is generally the case, I am not precluded, in the context of any particular matter, from giving equal or greater weight to any consideration. As such, in an appropriate case, other considerations may, for instance, be given more weight than primary considerations.[53]
[53] Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875 at [50].
In CZCV the Tribunal stated:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so. Although His Honour Colvin J referred to an inquiry as to whether “other considerations should be treated as primary considerations”, the Tribunal is not of the opinion that His Honour was suggesting that other considerations could be elevated to be primary considerations as this would be against the structure and express provisions of Direction no. 65. When read in light of the Full Court’s comments in HSKJ, in the Tribunal’s opinion, it would be correct to state that although the Tribunal cannot elevate an other consideration to become a primary consideration, it can give greater weight to an other consideration over a primary consideration.[54]
[54] CZCV and Minister for Home Affairs (Migration) [2019] AATA 91 at [164]. Ministerial Direction 65 (effective 23 December 2014 to 28 February 2019) is an analogous predecessor of Ministerial Direction 90 and the relevant parts are expressed in the same terms.
International Non-refoulement obligations
The Applicant’s own SFIC states (at [36]), and again the Tribunal agrees, that:
“The Applicant is a citizen of Nepal. There are no international non-refoulment obligations having regard to the Applicant’s circumstances.”
Extent of Impediments
The Applicant’s SFIC (at [38]) claims:
“The Applicant’s health and age are not an impediment to him returning to Nepal. Nor are there language or cultural barriers. It is submitted that there is an economic impediment in Nepal. Before his incarceration and jail and then in immigration detention, he was the breadwinner for his extended family. Should the visa cancellation not be revoked, it is difficult to see how he could support himself and his family, in Nepal.”
In support of this proposition the Applicant draws attention to the World Bank April 2021 report, Nepal Development Update. That report suggests that:
“Economic hardship is likely to have an impact on income and employment. The increasing number of unemployment applications and returning migrants could adversely affect progress in poverty reduction. The recent World Bank COVID-19 monitoring survey suggests there were widespread impacts of the pandemic on jobs and incomes, with more than two of every five economically active workers reporting an incidence of job loss or prolonged work absence. Women, young workers, and those engaged in nonagricultural activities have been the most severely affected.
…
Assuming a successful vaccination rollout domestically and globally, and a gradual resumption of international tourism, real GDP is projected to grow by 2.7 percent in FY21 and 3.9 percent in FY22. Growth is expected to be driven by services as social distancing eases up further, and by agriculture, on the back of recent favorable monsoons. However, the pandemic is expected to have lasting effects. Without reforms to readjust towards a post-COVID-19 tourism market that includes improvements to nature-based tourism, enhanced infrastructure for better access, environmental management and tourism diversification, the sector may not fully recover. This would stall the growth recovery, limiting its resilience. Tepid exports of goods, and services, matched against increasing imports, as consumption returns to normal, would widen the current account deficit to 3.2 percent of GDP by FY22.”[55]
[55] World Bank, Nepal Development Update (12 April 2021):
The latest Department of Foreign Affairs and Trade (DFAT) Country Report on Nepal (1 March 2019) notes that:
“2.14 Nepal is among the poorest and least developed countries in the world. The UNDP’s Human Development Report 2018 update, Nepal, ranked 149th out of 189 countries, falling several ranks since the last update in 2016. An estimated 25 per cent of Nepalis live below a poverty line of USD$1.25 a day.
2.15 According to the Food and Agriculture Organization of the United Nations, more than half of the population of working age is reported to be economically active and among them 81 per cent are engaged in agricultural activities. Industrial activity mainly involves the processing of agricultural products, including pulses, jute, sugarcane, tobacco, and grain and many farmers produce diversified crops to hedge against risks such as weather and other harvest conditions. The contribution of non-agricultural activities is gradually increasing as a proportion of GDP. The services sector, accounting for approximately 55 per cent of GDP, has been the primary source of growth since the 2000s.
…
2.30 While precise numbers are impossible to gauge because of the open border with India, every year more than 4 million Nepalis travel abroad (mostly to India, but also to countries in the Persian Gulf and south-east and north-east Asia) to engage in low or no-skill and low-wage employment. Labour migration and remittances accounted for nearly 30 per cent of GDP in 2014, representing a 30 per cent increase in the share of remittances in 2011. Young men, particularly from rural areas including Terai, are more likely to leave Nepal to seek employment than young women, who are more likely to seek employment in other parts of Nepal.
2.31 Migration acts as a significant driver for many millions of Nepalis to leave the country every year seeking economic opportunity. Hundreds of thousands of Nepalis internally migrate each year to engage in seasonal fruit picking. This is particularly prevalent among the poor from villages in the far west of the country who move east to engage in fruit picking.”[56]
[56] Department of Foreign Affairs and Trade, DFAT Country Information Report Nepal (1 March 2019):
The Tribunal accepts that the Applicant would be likely to face reduced economic prospects should he be returned to Nepal, although there is scant evidence before the Tribunal about his current financial or economic situation in Australia or the continued existence of any debts from his failed business venture. It is also unclear as to the extent to which his Australian earnings constitute the primary source of support for his family members in Nepal.
The Tribunal does however take note of a recent report by the United Nations Special Rapporteur on extreme poverty that remittances to Nepal from its overseas citizens were “10 times larger than foreign aid and 2.5 larger than total exports” and that “without remittances poverty would have increased in Nepal.” This is somewhat confirmatory of the Applicant’s claims that he and his family would suffer financial disadvantage were he required to return to Nepal. The report also highlights the increased burden of poverty associated with people who work primarily in the agricultural sector.[57]
[57] United Nations Office of the High Commissioner for Human Rights, Nepal must now deliver on promise of social justice: >
There was some evidence presented to the Tribunal to the effect that there is a family home in Nepal, currently shared by the Applicant’s wife, son and several of his siblings. There was evidence that his late father was a landholder but the intricacies of Nepalese succession and inheritance laws, and thus any entitlements of the Applicant, are beyond the Tribunal’s ability to discern.
The Respondent in its SFIC (at [50] with emphasis in original) points out:
“Notably, this consideration requires a consideration of any impediments the applicant may face in establishing themselves and maintaining basic living standards, in the context of what is generally available to other citizens of Nepal (Paragraph 9.2(1)). It does not call for a consideration of the applicant’s ability to economically support his extended family. The applicant, by his own evidence, does not face any other impediments that would impede his ability to obtain work in Nepal, which may well be aided by his work experience in Australia.”
What neither party appears to have addressed in their SFICs is the perhaps countervailing fact that if returned to Nepal the Applicant would be reunited with his wife and son. Although the Applicant has lodged some sort of application for his family to be granted visas to join him in Australia there is no indication of how or when such an application might be considered or resolved. There is certainly no certainty about an outcome either way.
The Applicant states that he has been devastated by the loss of his father, his mother and his young daughter in recent years and it cannot be but the truth that his separation from his wife (with whom he has had a long-term relationship) and with his young son must bear heavily upon him and upon issues of his mental health and wellbeing. While nothing may have been put directly to the Tribunal on this issue, it appears to be a matter of common sense that is worth consideration.
The Respondent, in submissions made much of the fact that the Applicant’s primary motive for coming to Australia in the first place, and then remaining here, has been to earn enough money to support his family in Nepal and then to be able to bring his immediate family to join him.
It may well be that, because of his conviction for the offence in question, the Applicant’s ability and qualifications to sponsor his family have been compromised and may be brought into question under Regulation 1.20KC of the Migration Regulations 1994. The Tribunal cannot speculate any further on that point other than to say that the Applicant would still be in a position of seeking to remain in Australia to provide financial support for his family and that both he and they would suffer some degree of impediment were he prevented from continuing to do so.
Although the Direction does not call for a consideration of the applicant’s ability to economically support his extended family, neither does it preclude it.
The criterion must count in favour of the Applicant at a more than formal but less than significant degree; its weight is of moderate consideration.
Impact on victims
The Federal Court in PGDX made it clear that if there was any evidence before the Tribunal from any of the victims of the Applicant’s offending behaviour, no matter how expressed, it was necessary for the Tribunal to give very close attention to what that evidence said.[58] However, in this instance the Respondent’s SFIC (at [53]) states, and the Tribunal agrees:
“There is no evidence before the Tribunal from any victims of the applicant’s offending regarding the effect of the Tribunal’s decision on the victim of the applicant’s offending. This consideration does not arise.”
[58] PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235.
LINKS TO THE AUSTRALIAN COMMUNITY
This criterion has two elements, dealing separately with the strength, nature and duration of ties to the Australian community and then with any business interests which might be impacted by the Applicant’s removal.
The Applicant has lived in Australia for many years; he has family members here and he has an extensive network of friends. Many of those people have provided statements of support for the Applicant and a number of them came forward to give oral evidence on his behalf.
Mr Bikal Deuja writes that his friend is a hardworking man who has major responsibilities to support his extended family. He suggests that the deaths of close family members had “pushed him [the Applicant] to intake more alcohol” as a coping mechanism and states that the Applicant is genuinely remorseful for his offending behaviour.[59]
[59] Applicant’s Tender Bundle at 7-8.
Mr Parmjeet Singh Chatrath, a friend of the Applicant, also remarks on the Applicant’s support of his family and the delay in dealing with visa applications. He reflects on the Applicant’s problems with alcohol “which he managed to give up after what happened”. He states that he was a witness to the offending behaviour in the hotel where the Applicant “was drunk” and he notes that the offence was a serious crime but that the Applicant is genuinely remorseful.[60]
[60] Ibid at 9-10.
Mr Prakash Bhattarai has known the Applicant for over 15 years and is married to the Applicant’s sister. In addition to his written statement dated 21 November 2021, he gave impressive oral evidence to the Tribunal of the extent to which the Applicant had helped him when he first arrived in Australia as a student; about the level of support he provided with his remittances to Nepal and his involvement and standing in the local 500-strong Nepalese community.
Mr Pramod Bhattarai, the Applicant’s friend, has known him for some 13 years. He ascribes the Applicant’s drinking problems, in part, to his “[l]iving away from the loved ones”. He is sure that the Applicant has overcome his problems with alcohol and that he is now a “new man… full of wisdom, care, responsibility”.[61]
[61] Ibid at 11-12.
Syed Farhan-ul Hasan, the Applicant’s friend, has been in contact with the Applicant for some 10 years and kept in touch while the latter was in detention. He stresses the extent to which the Applicant has worked to provide financial support for his family and how his offending behaviour was otherwise entirely out of character for him.[62]
[62] Ibid at 13-14. His statement describes himself as the Applicant’s “brother-in-law” but this term is taken in its cultural context and the relationship is that of being a cousin.
Nabin Sapkota, the Applicant’s cousin ascribes all the Applicant’s misfortunes and offending behaviour to the impact of alcohol this resulting from the series of family losses which he suffered. He appeals for the visa revocation on behalf of the Applicant’s wife and child “who are guilty for nothing”.[63]
[63] Nabin Sapkota Witness Statement dated 28 November 2021. He is also a cousin and not a brother-in-law.
Sima Sapkota, the Applicant’s family friend, makes reference to the Applicant’s “vulnerable family who depend on his income and emotional support” and notes that the Applicant’s long term goal is to be reunited with his family in Australia.[64]
[64] Sima Sapkota Witness Statement dated 21 November 2021.
Shesh Narayan Bhandari the Applicant’s cousin remarks on the Applicant’s remorse for his offending behaviour, his dream to settle with his family in Australia and his reliance on alcohol which “he started taking… to cure his over thinking and insomnia which subsequently became a habit”. He writes that the Applicant has now transformed himself “into a sensible human”.[65]
[65] Shesh Narayan Bhandari Witness Statement dated 22 November 2021.
Lei (Joe) Wang is the previous employer of the Applicant who worked with him for some 8 years and has known him for 12 years. He writes that the Applicant has worked hard as the principal breadwinner for his family. He writes that the Applicant’s offending behaviour was entirely out of character for him and that he believes the Applicant to be truly remorseful and significantly changed over the last 15 months in jail and immigration detention. In his oral testimony he stressed the commitment of the Applicant to his family, his high work ethic and his positive interaction with members of the community. He advises that should the Applicant be allowed to remain in Australia he would hire him back into his business, at some managerial level and continue to support him.
The Tribunal accepts, as does the Respondent (in their SFIC at [58]) that this criterion weighs in favour of the Applicant but again to only a moderate degree.
CONSIDERATIONS
The Tribunal is required to proceed, after outlining the relevant criteria “by weighing those factors carefully as against each other and applying an evaluative mind to their respective weight.” [66]
[66] Kura v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1478 at [88].
In this instance four of the eight primary and other considerations do not arise for evaluative assessment. Of the remaining four:
·the protection of the community counts against the Applicant to a very limited or minimal degree;
·the expectations of the Australian community count against the Applicant to a moderate degree;
·the extent of impediments if removed count in the Applicant’s favour, again to a moderate degree;
·the Applicant’s ties to the Australian community count in his favour, again to a moderate degree.
The calculus is thus exquisitely finely balanced and there is no clear or compelling case to make a determination either way. The Tribunal accepts that the Applicant is genuinely remorseful and unlikely to reoffend but also recognises that he still faces many challenges.
In these circumstances what becomes determinative for the Tribunal is the exhortation of Allsop CJ in Hands:
By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.[67]
[67] Hands v Minister for Immigration and Border Protection[2018] FCAFC 225 at [3]. Markovic and Steward JJ agreeing. Citations omitted.
When all other considerations are finely balanced and none determinative, the exhortation of His Honour in this respect is ultimately persuasive.
DECISION
The decision under review is set aside and, in substitution, the Applicant’s visa cancellation is revoked.
I certify that the preceding 128 (one hundred and twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
....................................[sgd]....................................
Associate
Dated: 17 December 2021
Date(s) of hearing: 10 December 2021 Solicitors for the Applicant: Mr N Dobbie, Dobbie and Devine Immigration Lawyers Solicitors for the Respondent: Mr C Burke, Sparke Helmore Lawyers
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