DGBK and Minister for Home Affairs (Migration)

Case [2019] AATA 243

DGBK and Minister for Home Affairs (Migration) [2019] AATA 243 (27 February 2019)

Division:GENERAL DIVISION

File Number(s):      2018/7392

Re:DGBK

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A. Nikolic AM CSC

Date:27 February 2019

Place:Melbourne

The Tribunal affirms the decision under review.

...................[sgd]............................................

Senior Member A. Nikolic AM CSC

MIGRATION – Mandatory visa cancellation – citizen of Afghanistan – Class XA Subclass 866 Protection visa – sexually-based offences against multiple minor children – failure to pass good character test – Ministerial Direction No. 65 applied – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Criminal Code Act 1995 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth)
Migration Regulations 1994 (Cth)
Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Crimes Act 1958 (Vic)
Sex Offenders Registration Act 2004 (Vic)

Sentencing Act 1991 (Vic)

CASES

Adut and Minister for Home Affairs [2018] AATA 4089
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, 104
DAO16 vMinister for Immigration and Border Protection and Another [2018] FCAFC 2
DPP (Tas) v Latham [2009] TASSC 101
Falzon v Minister for Immigration and Border Protection [2018] HCA 2
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
James v R [2009] NSWCCA 62
Minister for Immigration and Citizenship v SZRKT and Another [2013] FCA 317
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR
Reddy and Minister for Immigration and Border Protection [2016] AATA 1043
R v Booth [2009] NSWCCA 89
R v Cook; Ex p DPP (Cth) [2004] QCA 469
R v Liddington (1997) 97 A Crim R 400
R v Sharpe [2001] 1 SCR 45
R v Stroempl (1995) 105 CCC (3d) 187
R v Quick (2004) 148 A Crim R 51
Re LCNB and Minister for Immigration and Border Protection [2015] AATA 463
Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303

SECONDARY MATERIALS

Explanatory Memorandum to the Migration Amendment Regulation 2012 (No. 5)

Marchetti, E., Classification of child exploitation material for sentencing purposes: Final report, (July 2017) Queensland Sentencing Advisory Council < FOR DECISION

Senior Member A. Nikolic AM CSC

27 February 2019

INTRODUCTION

  1. The applicant seeks review of a decision by a delegate of the Minister for Home Affairs (“Minister”), made under s 501CA(4) of the Migration Act 1958 (“the Act”), not to revoke the mandatory cancellation of his Class XA Subclass 866 Protection visa (“the visa”).

  2. The hearing was held in Melbourne on 18 and 19 February 2019 with the assistance of an interpreter in the Hazaragi language. The applicant was represented by Ms Julie…

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Details
AGLC
DGBK and Minister for Home Affairs (Migration) [2019] AATA 243
Case
[2019] AATA 243
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by DGBK against a decision to cancel his visa. The dispute arose from DGBK's criminal conduct involving multiple children, for which he was convicted and sentenced. The Administrative Appeals Tribunal was required to consider the nature and seriousness of DGBK's offending in determining whether there was "another reason" to revoke the visa cancellation decision.

The Tribunal was tasked with assessing DGBK's criminal conduct against the criteria set out in paragraph 13.1.1(1) of the relevant Direction. This involved considering factors such as the violent or sexual nature of the crimes, whether they were committed against vulnerable members of the community, the sentence imposed, the frequency and trend of offending, and the cumulative effect of repeated conduct. The Tribunal also had to weigh the sentencing judge's findings regarding DGBK's culpability and the impact of his psychological state.

The Tribunal placed considerable weight on the sentencing remarks, which described DGBK's offending as premeditated, predatory, and persistent, involving 11 sexually-based offences against multiple children. It noted that two victims were 11 and 13 years old, and two others were 14 and 15 years old, all of whom were considered vulnerable members of the community. The Tribunal found that DGBK's conduct was not impulsive and that he was undeterred by the rejection of his advances. Despite evidence of DGBK's difficult past, including trauma and psychological issues, the sentencing judge had concluded that these did not meet the threshold for reducing moral culpability. The Tribunal ultimately found that the weight of the evidence supported the conclusion that there was no "another reason" to revoke the visa cancellation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The sentencing judge at DGBK’s first trial concluded he could not see how any condition DGBK might have, would explain his repeated criminal conduct against children.[33] The Court referred to aspects of Ms Lechner’s assessment, including that DGBK:(a)has average intelligence and is ‘generally capable of reflecting on the impact that [his] behaviour has on others and [himself];’[34](b)was depressed at the time of his psychological assessment[35] and had unresolved post-traumatic stress disorder from events in Afghanistan and Pakistan;[36](c)battles homesickness, depression, isolation, and worries about the safety of his family in Pakistan;[37] (d)was unconvincing in submitting that his offending was due to ‘ignorance of the law,’ which the court rejected;[38](e)displays emotional immaturity and hebephilic tendencies requiring further assessment;[39] (f)committed his offences in the context of the factors identified by Ms Lechner, including his curiosity, social isolation and depression;[40] and(g)did not warrant a reduction in his moral culpability as a result of any impairment identified by the psychologist, because the available evidence did not ‘reach [the] threshold test.[41] DGBK did receive consideration from the Court, however, as a result of his young age and social immaturity.[42] [33] Ibid, 52 [68].[34] Ibid, 50-51 [61].[35] Ibid, 51 [64].[36] Ibid, 51 [62].[37] Ibid, 51 [63].[38] Ibid, 51 [65].[39] Ibid, 52 [66].[40] Ibid, 51 [66].[41] Ibid, 52 [68].[42] Ibid, 53 [69].Evidence of DGBK In his oral evidence, DGBK recalled his difficult early life in Afghanistan, which included witnessing the immediate aftermath of his father’s death at the hands of DGBK’s uncle (his father’s brother). DGBK submits his uncle committed the murder in company with the Taliban. DGBK said his mother relocated the family to Pakistan, where he sold goods at a local bazaar from the age of 10. As a young person of Hazara Shia origins, he claims to have been targeted, robbed and abused. DGBK states that, at the age of 13, he was raped by two adult males, who threatened to kill him and his family if he reported it.[43] He said he did not inform the police or his mother about this incident.[43] Exhibit A1, [9]. DGBK states that, at about the age of 14 or 15, he discovered his sexuality was different to others because he liked ‘both men and women.’[44] He suppressed his sexuality because ‘bisexuals are not accepted in Islam.’ While living in Pakistan he recalls a loving relationship with a woman for approximately two years until, he claims, her father discovered the relationship and beat them both. DGBK said the woman’s father forced her to marry a much older man, causing DGBK to despair and ‘cut his forearm with a razor blade.’ He claims this incident of self-harm arose out of a sense of grief rather and was not a suicide attempt. [44] Ibid [10]. DGBK was asked about a consultation with clinical psychologist Ms Carla Lechner in late 2014, which was arranged by his then legal representatives.[45] He recalls the consultation took approximately 2-3 hours and was in support of submissions made at his first criminal trial. He said the report focussed on issues like whether he was attracted to children and his future risk of reoffending. [45] Exhibit R1, 845-851.

Decision

Reasons for decision

The influential weight of evidence supports a finding that there is not ‘another reason’ why the decision to cancel DGBK’s visa should be revoked.DECISION It follows that the Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

Paragraph 13.1.1(1) sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. Decision-makers must have regard to factors including:a) The principle that, without limiting the range of offences that may be considered serious, violent and / or sexual crimes are viewed seriously.b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious; c) The sentence imposed by the courts for a crime or crimes;d) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;e) The cumulative effect of repeated offending;f) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;g) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);h) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.Tribunal consideration: The nature and seriousness of the conduct Australian society abhors the sexual exploitation of children and insists that criminal sentences are sufficiently strong to protect children, punish offenders, and serve as a powerful denunciation of such conduct. The legislature, at both a state and Commonwealth level, has set relatively high maximum penalties for offences relating to sexual crimes against children.[66] In part, that reflects the inherent vulnerability of children, whose emotional maturity is not fully developed, and who are consequently at a disadvantage when confronted with choices of a sexual nature. [66] Criminal Code Act 1995 (Cth); Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic). The nature and seriousness of DGBK’s conduct is clearly reflected in the sentencing remarks of the Court, on which the Tribunal places considerable weight. DGBK’s offending commenced approximately 18 months after he was released into the community and continued for approximately six months before it ceased as a result of his arrest. He committed 11 sexually-based offences involving multiple children. His criminal conduct was not considered impulsive or fleeting in nature; the court found much of it was premeditated, predatory[67] and persistent.[68] DGBK was undeterred by the explicit and repeated rejection of his advances by some children.[69] Two of DGBK’s victims were 11-year-old and 13-year-old girls. Two others were 14-year-old and 15 year-old boys. These victims are demonstrably vulnerable members of the community within the meaning of paragraph 13.1.1(1)(b) of the Direction. The Tribunal notes the Court’s references to the significant psychological harm caused by DGBK’s offending.[70] The available victim impact statements speak of harm that will last long into the future. [67] Exhibit R1, 55 [81].[68] Ibid, 56 [84]; 70 [8].[69] Ibid, 42 [9]; 43 [13]; 44 [17]; 56 [87]. [70] Ibid, 56 [89]; 70 [8].