CVA and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2011] AATA 742
•24 October 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 742
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/3101
GENERAL ADMINISTRATIVE DIVISION ) Re CVA Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Senior Member Bernard J McCabe Date 24 October 2011
Place Brisbane
Decision 1. The Tribunal sets aside the decision and remits it for reconsideration pursuant to s 43(1)(c)(ii) of Administrative Appeals Tribunal Act 1975 so that further evidence can be obtained about (a) the stalking conviction; (b) the risk of the applicant re-offending; and (c) the relationship with his step-daughter.
2. Pursuant to s 35 of the Administrative Appeals Tribunal Act 1975, the Tribunal vacates the directions under s 35 made on 3 October 2011 and now directs (a) the reasons for decision in this case be published under a pseudonym; (b) the identity of the applicant not be published to any person apart from the parties and their legal representatives and the Tribunal’s staff; and (c) documents provided to the Tribunal under summons not be published to any person apart from the parties and their representatives and the Tribunal staff.
..............................................
Senior Member
CATCHWORDS
CITIZENSHIP AND IMMIGRATION — immigration — section 501 visa cancellation — substantial criminal record — character test — protection of Australian community — insufficient evidence on risk of reoffending — insufficient evidence on risk to step-daughter — public attitude — decision set aside and remitted
Administrative Appeals Tribunal Act 1975, ss 33, 35, 43
Migration Act 1958, ss 499, 501
Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690
REASONS FOR DECISION
24 October 2011 Senior Member Bernard J McCabe 1. The applicant has a substantial criminal record within the meaning of s 501 of the Migration Act 1958. On that basis, the Minister for Immigration and Citizenship has properly concluded the applicant does not pass the character test imposed under that section. It follows the discretion in s 501(2) to cancel the applicant’s visa has been enlivened. The Minister decided the visa should be cancelled. That decision was communicated to the applicant in a letter dated 26 July 2011. The applicant has asked the Tribunal to reconsider the matter.
2. I have decided to set the decision aside and remit the matter for reconsideration pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975. I explain my reasons (including the terms of the remittal) below.
Cancelling a visa under s 501 of the Migration Act 1958
3. The applicant in this case has a substantial criminal record within the meaning of s 501(7) because he has been convicted and sentenced to a term of imprisonment of more than 12 months. He is therefore unable to satisfy the character test set out in s 501(6). Having failed that test, the power to cancel the visa is enlivened. But the power to cancel is discretionary.
4. The Minister has prepared a direction that is intended to guide the exercise of the discretion. It is known as Direction No 41: Visa refusal and cancellation under
s 501. Section 499 of the Act says the Direction is binding on decision-makers, including the Tribunal. It is very detailed. It requires that the decision-maker consider four primary considerations before turning to other considerations that are of lesser weight. I will deal with each of the considerations in turn.Primary Consideration One: Protection of the Australian Community
5. The heading to clause 10.1 of the Direction is important. It serves to emphasise that a discussion of the applicant’s offence must take place in light of the objective of protecting the Australian community from “unacceptable risks of harm”. The Direction says that consideration proceeds according to a two-step process. The first step requires an evaluation of the seriousness and nature of the conduct that has occurred. The second but related step requires a consideration of the risk that the conduct may be repeated if the applicant is allowed to remain in Australia.
6. The applicant has two convictions that were both entered on the same day. The first followed a plea of guilty to a charge of unlawfully stalking a 15 year old girl. I was provided with a sketchy outline of the facts that led to the conviction. The applicant said he disputed important parts of the case that was presented against him in the Magistrates’ Court but decided to plead guilty because he could not afford to contest the proceedings. He was sentenced to six months imprisonment suspended after two months. The sentencing magistrate said very little about the matter in the course of his remarks.
7. It goes without saying that stalking is a matter of real concern – especially where it involves a young person. The fact the magistrate saw fit to impose a sentence of imprisonment suggests his Honour took a serious view of the applicant’s conduct, although it must be noted the sentence was to be served concurrently with the sentence imposed in respect of the second offence, of which I will say more shortly. It may be that the sentencing magistrate regarded a short prison term to be served concurrently with a longer term imposed for another offence as the most convenient way of disposing of the matter. He might have taken a different view of the appropriate punishment if the applicant were not otherwise going to gaol. But all that is speculation, because there is almost nothing said on the topic in the sentencing remarks.
8. The Tribunal should not go behind a conviction and sentence. The applicant pleaded guilty to the stalking charge; presumably the Court would not have accepted his plea if it was not satisfied the applicant was guilty. But the way in which the matter was dealt with in the Magistrates’ Court – and the absence of extensive records describing the conduct - makes it difficult to evaluate that conduct for present purposes.
9. I was provided with more information about the second charge. The applicant was convicted of using the internet to expose a person he believed to be under 16 years of age to an indecent matter. The applicant had apparently encountered a person who claimed she was 14 years of age when she asked to be a ‘friend’ on his Facebook page. The applicant and his new friend began to talk over the internet and on at least two occasions in June 2010 the conversations became lewd. According to the sentencing magistrate’s remarks, the applicant described his anatomy and referred to the friend’s anatomy, and I understand he purported to instruct the friend in the basic mechanics of oral sex. There was no suggestion that the applicant asked to meet his friend and he did not send her any indecent images. There is no suggestion that he was grooming her for a sexual advance. The applicant said at the hearing that he did not know where the friend was located and did not think to inquire as he had no intention of meeting her. He said he was under the impression that the friend lived somewhere in Australia, but he was unsure.
10. It turns out the friend in question was a police officer posing as a 14 year old girl. The meeting was obviously not a chance encounter: I was told the officer contacted the applicant’s Facebook page and asked to be included as a friend. I infer – although I do not know for sure, as there was little evidence on this point – the applicant was singled out for an approach in June 2010 after the police became aware of the stalking complaint made by the 15 year old girl some time before. It seems the police chose to investigate the young woman’s complaint by making a covert approach to the applicant over the internet rather than by interviewing him about the stalking allegation.
11. The applicant was not brought in for questioning in relation to either the stalking or the internet charge until November 2010. He said it was the first he knew about any investigation and he had not had any further contact with his Facebook friend after June. I was not told the reason for the extensive delay between the offending conduct and the first interview with the police. If the applicant was a serious risk, one would have thought the police might have acted sooner rather than take a chance by leaving the applicant at large. The applicant’s computer was seized and his home was searched on the day he was first questioned in November. I am told he was confronted with a transcript of the conversations he had with the erstwhile Facebook friend and made admissions to police in the course of an interview. He was subsequently charged and given bail.
12. At the hearing in these proceedings, the applicant said he no longer had a clear recollection of the conversations or the police interview, although he acknowledged he must have said the things that were recorded in the transcript. The respondent suggested I should infer something from his failure to recollect the events, but I do not think it is appropriate to do so. He was not resiling from his admission.
13. The Direction points out that any sexual offence involving children is regarded as being especially serious. The fact the internet offence did not actually involve a child is irrelevant. The applicant apparently thought he was talking to a minor. Having said that, the applicant’s conduct was less serious than that of an offender who attempted to groom a minor for the purposes of an actual sexual encounter.
14. I was provided with two newspaper accounts of the applicant’s conviction: exhibit one at pp60-61. These were apparently included in the brief provided to the character assessor. I am not sure why. Perhaps someone thought a selection of media reports might be a helpful indication of the public’s attitude to this kind of offence. The President of the Tribunal recently commented on the importance of consulting community values in the course of formulating a view of what is the preferable decision: see Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690 at [79]. I am confident that newspaper reports like those included in exhibit one are not what the President had in mind as authoritative or representative statements of the public’s attitude. They should not have been considered.
15. The reports are inaccurate in important respects in any event. Both of them say the applicant admitted “grooming” the friend on Facebook, while one of them suggested he made “sexual advances” to the friend. That is wrong. The briefing note acknowledges the reports contain other inaccuracies: exhibit one at p16. The presence of these documents in a briefing note like this is troubling, even where some of the errors in the reports are identified.
16. One does not need newspaper reports – especially inaccurate ones – to know the community would be deeply troubled by an offence of a sexual nature against a person whom the offender thought was a minor, together with a stalking offence in relation to another young person. The sentencing magistrate certainly took a serious view of the applicant’s conduct. The applicant was sentenced to a term of imprisonment. His Honour pointed out the appellate courts in Queensland say custodial sentences are usually appropriate in cases where the offender is convicted of this sort of offence.
17. I turn now to the second matter I am required to address under the heading “Protection of the Australian Community” – namely, the risk that the conduct may be repeated. This is where I run into serious difficulty.
18. The applicant has no criminal history apart from the offences of which he was convicted in April 2011. There is no suggestion he has breached conditions of bail or parole or any other orders. The evidence before me suggests these offences were isolated acts. I understand the police seized the applicant’s computer and searched his home when he was finally arrested in November 2011. It seems they did not find anything in the course of that search (which I assume included an analysis of the contents of the computer) that suggested the applicant was engaged in other offending behaviour. I was not told of other chat logs or pictures or documents that suggest he has breached the law in other respects. He certainly had ample opportunity to generate incriminating evidence between June, when the internet offence was committed, and November, when he was arrested. If any evidence was found, I was not told about it.
19. What evidence there is before me suggests the applicant has lived a blameless life before these offences were committed. I was told by his wife that his behaviour was out of character: she said the applicant was a gentle man who was experiencing a sense of dislocation after he was unable to get a job in this country. Interestingly, his wife said she had carefully considered her husband’s conduct and remained sufficiently confident in his behaviour that she was prepared to have him home where he would be in regular contact with her daughter, who is the applicant’s step-daughter. Naturally, I cannot give his wife’s evidence a great deal of weight given her relationship. Independent evidence is more useful.
20. The applicant was only in gaol for a very short time, so he did not have the opportunity to complete any of the courses of counselling or rehabilitation that are open to persons convicted of sexual offences. That cannot be held against him. It would be odd if the applicant were disadvantaged because he was not in gaol long enough to undertake courses that were only effectively available to more serious offenders with the time to complete them. The sentencing magistrate’s limited remarks – especially in relation to the stalking offence – do not offer much assistance for present purposes either. I was not provided with pre-sentence reports or parole assessments. Perhaps the authorities in Queensland did not prepare those things in relation to the applicant. If the reports were written, they were not shown to me.
21. The records obtained from the Queensland Corrective Services Commissioner under summons confirm the applicant was a quiet and well-behaved prisoner while he was in custody. They also support his claim that prison was a terrifying experience. He says he received threats from other prisoners. He was obviously shaken by his incarceration and I am inclined to accept his assurance that he never wanted to risk going back to gaol. It may be that, in the applicant’s case at least, gaol had the deterrent effect it was intended to have.
22. Given the paucity of other information, reports from a counsellor or psychologist would have been useful in making this decision. The applicant attempted to organise a report of this nature himself. He approached the International Health and Medical Services organisation which provides counselling to inmates of detention centres. He asked them for a report. The request was declined although I infer that the provision of reports was not part of that organisation’s remit. The briefing note provided to the character assessor confirms the applicant’s wife also made efforts to find a psychologist or counsellor who could do a report but she was unable to organise one given the time frame within which she had to act: exhibit one at p12.
23. In the circumstances, I am satisfied the applicant did all he could to assist me. He has limited financial means and he is in detention a long way from his family. Given those challenges, I look to the respondent to provide me with the information I need.
24. The respondent is under a duty to assist the Tribunal to make the correct or preferable decision: s 33(1AA) of the Administrative Appeals Tribunal Act 1975. That duty might extend in an appropriate case to providing information the applicant is unable to provide – because he is indigent and unassisted, or because of the time limits which confront the applicant (but not the respondent, who has more time in which to make a decision), or because he is in detention or gaol. The respondent did not see fit to organise any sort of independent review by a psychologist or counsellor. When I asked for some more general evidence like studies of rates of recidivism and re-offending by persons convicted of this sort of crime, I was told none was available. In fact, that sort of evidence is available. It was simply not considered by the delegate or provided to the Tribunal. The respondent preferred to rely primarily on the fact of the offences as the basis for an inference as to risk. I was effectively being told that the risk of re-offending is self-evident from the fact of the convictions. But that is not satisfactory in this case.
25. One might readily draw an adverse inference against an applicant who has a lengthy criminal history. If there is an established pattern of misconduct, one could more easily infer the pattern would continue in the absence of evidence that the pattern has been broken. That is not the case here. There are only two offences, and the Tribunal has been provided with an inadequate account of one of them. Both convictions were entered on the same day, and the offending conduct occurred over a comparatively short time frame in early-to-mid 2010. There is no reason to assume the applicant is a habitual law-breaker, and his experiences in prison appear to have reinforced the community’s expectations, that he behave in the future.
26. There does not have to be a pattern, of course. Even one offence might be enough to raise concerns about the likelihood of re-offending. The cases accept that even a relatively small chance of further offences might be unacceptable where the consequences of those offences would be grave. The community is entitled to be risk averse when faced with someone who has committed a serious crime in the past and may do so again. The irony here is that removing the applicant from Australia would not protect the Australian community if he were minded to have further indecent conversations with Australian teenagers on the internet. He can do that from anywhere in the world.
27. As the evidence stands, I do not think I am in a position to form a view about the risk of the conduct being repeated. More information is required about the offences (especially the stalking offence), and some independent evidence like a psychologist’s report is necessary before that can be done. In those circumstances, I am simply unsure whether the need to protect the Australian community tends to strongly favour cancellation. If I were compelled to express a view on the basis of what is before me, I would conclude there is little risk of the applicant reoffending given his frightening experience in prison. While the internet offence in particular is relatively serious, I do not think the need to protect the Australian community weighs heavily against the applicant in this case if I limit myself to the existing evidence.
Primary consideration Two: Whether the person was a minor when he began living in Australia
28. This consideration does not assist the applicant. He was in his mid-20s when he arrived in Australia.
Primary consideration three: The length of time that a person has ordinarily been resident
29. The applicant arrived in Australia in early 2010. He has not had an opportunity to forge ties with the Australian community. This consideration does not assist him. Indeed, the fact his offending conduct began soon after his arrival tends to count against him.
Primary consideration four: International obligations
30. The principal international obligation that arises in this case is the requirement that I consider the best interests of the applicant’s step-daughter. She is a minor. She resides with the applicant and her mother, the applicant’s wife. The child appears to have a good relationship with her step-father. He is her primary carer because her mother has a full-time job that includes shift work arrangements.
31. I was told the child has an excellent relationship with the applicant. They have known each other since the applicant and her mother married in 2007. That is not a long relationship, but it accounts for a substantial portion of the life of a ten year old. The family also have no other relatives in this country, and it is not clear whether they have formed close relationships with other people in their area. It is therefore likely that the bond between family members is particularly important in the circumstances.
32. It is unclear whether the applicant’s wife and her daughter would return to their country of origin if the applicant were required to leave. The child has settled in Australia and her mother says she has a much brighter future here. A move would be very disruptive. If the mother stayed and was forced to make different arrangements for the care of her daughter so the mother could retain her job, that would also occasion disruption.
33. One must consider whether the applicant is a threat to his step-daughter. That question has to be asked give the nature of the applicant’s offence. The applicant’s wife has certainly considered it; she told the hearing that she was confident her husband could be trusted. I am unaware of any suggestion of neglect or abuse at the applicant’s hands.
34. The material provided to the Tribunal includes a statement from the applicant’s step-daughter. I am not inclined to give the statement a great deal of weight given the circumstances.
35. The respondent says the short duration of the relationship suggests this consideration should not count in the applicant’s favour. I am not so sure, as I have indicated. I would be more confident if I were to be provided with some evidence about the risk the applicant poses to the child.
36. If I am required to reach a view based purely on the material before me, I would be inclined to accept this consideration weighs in the applicant’s favour.
Other considerations
37. There are several other considerations that need to be taken into account, although I acknowledge they are accorded less weight than the primary considerations.
38. The applicant appears to have a genuine familial relationship with his wife and step-daughter. The wife and daughter are not financially dependent on the applicant: his wife is employed whereas he is not. But the wife’s work is very demanding and I was told she would have real difficulty doing her job if she was required to look after her daughter without the assistance of the applicant. It follows he plays a central role in the operation and well-being of the household. He would be difficult to replace, especially given the applicant’s wife cannot call on other family members for assistance. If he were required to leave Australia, the family members who remain behind would experience real emotional hardship and considerable inconvenience. In that event, the applicant’s wife and daughter face the prospect of either returning to their country of origin or persevering in Australia without the applicant. If they returned with the applicant, they would have to re-establish themselves and get work, which I was told would be difficult. The country of origin is not nearby. Visiting the applicant on a regular basis would be an expensive and difficult endeavour.
39. The applicant is not an elderly man, and I understand he is in good physical health. He has established links in his country of origin. I was told he would be able to return to friends and relatives in his country of origin, but that he would have real difficulty obtaining work. I understand he is not a highly educated man, although he appears intelligent and articulate, if softly spoken.
Should the discretion be exercised?
40. I do not think I have enough information before me to reach a considered view on whether the discretion should be exercised. In particular, evidence that would enable me to form a view of the risk of the applicant re-offending, and any risk posed to the daughter, has not been made available. That information, together with more information about the stalking conviction, should be obtained and considered.
41. If I were to be compelled to express a view based on the information before me, I would be inclined not to exercise the discretion to cancel. The limited information before me suggests the applicant does not present an unacceptable risk of re-offending, while the interests of the child in this case would be served by allowing him to stay. The disruption and hardship that the family will experience if he is required to leave will be significant.
42. But I would prefer not to express a concluded view. More information is required, and it should have been obtained before a decision was made in the first place. Removing someone from this country is an awesome exercise of state power. It changes the lives of the cancelled visa holder and his family forever. If the power is is exercised too freely, the Australian community is deprived of future contributions from someone who might turn out to be a good citizen. If it is not exercised when it should be, the public is exposed to unacceptable risks. We owe it to every member of the community to ensure the power is exercised in a considered way on the strength of the evidence. The reaction of the media is not evidence.
43. I propose to set aside the decision and remit it for reconsideration pursuant to s 43(1)(c)(ii) so that further evidence can be obtained about: (a) the stalking conviction; (b) the risk of the applicant re-offending; and (c) the relationship with his step-daughter.
44.
That leaves only the question of confidentiality. I made orders under s 35 of the Administrative Appeals Tribunal Act 1975 at the outset of the hearing because one of the offences being discussed involved a minor. Some of the material provided under summons from the Queensland Corrective Services Commissioner was also provided on the basis that it would remain confidential. While the Tribunal is committed to conducting its proceedings in public, it must also be conscious of the need to protect young people whose identity is protected under state law. In many cases, that will mean suppressing the identity of an offender. I am satisfied this is one of those cases. I am also satisfied that confidential documents provided under summons should not be released given the sensitivity of that material. Pursuant to
s 35 of the Act, I direct (a) the reasons for decision in this case be published under a pseudonym; (b) the identity of the applicant not be published to any person apart from the parties and their legal representatives and the Tribunal’s staff; and
(c) documents provided to the Tribunal under summons not be published to any person apart from the parties and their representatives and the Tribunal staff.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe
Signed: .....................................................................................
AssociateDate of Hearing 3 October 2011
Date of Decision 24 October 2011
Applicant Self-represented
Solicitor for the Respondent Mr T Eteuati, Clayton Utz
1
1
0