DHHH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 2523
•28 July 2020
DHHH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2523 (28 July 2020)
Division:GENERAL DIVISION
File Number(s): 2020/2693
Re:DHHH
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Member Tigiilagi Eteuati
Date:28 July 2020
Place:Brisbane
The Tribunal sets aside the decision under review and makes a decision in substitution that the Applicant’s visa not be cancelled.
...........................[SGD].............................................
Member Tigiilagi Eteuati
Catchwords
MIGRATION – cancellation of Applicant’s visa under s 501(2) – Applicant failed to pass the character test - whether to exercise the discretion to cancel the Applicant’s visa - application of Direction No. 79 – decision set aside
Legislation
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Tigiilagi Eteuati
28 July 2020
background
1. This is an application by DHHH (“the Applicant”) for review of a decision made by the delegate of the Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (“the Minister”) made on 27 February 2020 cancelling the Applicant’s Class BB Subclass 155 Five Year Resident Return visa (“RR visa”) under section 501(2) of the Migration Act 1958 (Cth) (“the Act”).
2. The Applicant is a 31-year-old male citizen of Afghanistan. The Applicant first arrived in Australia from Iran on a Class XB Subclass 200 Refugee visa on 27 June 2013. The Applicant was 24 years old when he arrived in Australia. He arrived in Australia with both of his parents, his three sisters and his younger brother.
3. The Applicant was convicted of three counts of indecent treatment of a child under the age of 16 on 9 June 2017. Those offences were committed in August 2015. He was sentenced to 7 months imprisonment for each of the three offences. The sentence was fully suspended for 12 months.
4. The Applicant was convicted and sentenced for a number of offences on 18 April 2018. These offences were all related to his 2017 offences. One offence involved the Applicant continuing to carry on his business as a driving instructor after his licence to work with children, which was required in order to work as a driving instructor, was cancelled. Another offence involved the Applicant failing to report contact with a 17-year-old who he was teaching to drive. The three other offences involved the Applicant failing to properly disclose his offences or unresolved charges against him when completing applications for renewal of his driver instructor accreditation. The Applicant was fined a total of $800 for all of his offences.
5. As a result of these offences, the Applicant breached the suspended sentence imposed on 9 June 2017. On 20 June 2018 the Applicant was convicted of breaching his suspended sentence and that suspended sentence of 12 months was extended by six months.
6. By letter dated 17 September 2019, the Department sent the Applicant a Notice of Intention to Consider Cancellation (“NOICC”) of the Applicant’s visa under section 501(2) of the Act. The NOICC indicated that cancellation of the Applicant’s visit was being considered as it appeared that, owing to his criminal history, he did not pass the character test under the Act.
7. The Applicant provided the Department with a completed Personal Circumstances Form dated 14 October 2019 in response to the NOICC. The Applicant also provided the Department with various documents in support of his representation that his visa should not be cancelled. That material included a number of letters in support of the Applicant written by friends and acquaintances.
8. The Applicant’s visa was cancelled on 27 February 2020 on the basis that the Applicant did not pass the character test as set out in section 501(6)(a) of the Act (when read with section 501(7)(d) of the Act) as he had been sentenced to terms of imprisonment where the total of those terms was more than 12 months.
9. The Applicant was notified of the cancellation of his visa by letter dated 24 April 2020. Pursuant to regulation 2.55(7) of the Migration Regulations 1994 (Cth) (“the Regulations”), the Applicant was deemed to have received notification of the cancellation decision on 5 May 2020.
10. The Applicant applied to this Tribunal for review of the cancellation decision on 6 May 2020.
11. The matter was heard on 3 July 2020. For the reasons below, I have decided to set aside the Minister’s decision to cancel the Applicant’s visa and make a decision in substitution that the Applicant’s visa not be cancelled. The Tribunal considers that this is the preferable decision in this case.
issues
12. Section 501(2) of the Act provides:
(2) The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
13. The two issues are:
1.whether the Tribunal reasonably suspects that the Applicant does not pass the character test as defined in section 501 of the Act and the Applicant does not satisfy the Tribunal that he passes the character test; and if so
2.whether the Tribunal considers that the discretion in section 501(2), to cancel the Applicant’s visa, should be exercised.
14. If the Tribunal is satisfied that the Applicant passes the character test, the cancellation decision must be set aside as the power to cancel the Applicant’s visa is not enlivened.
15. If the Tribunal is not satisfied that the Applicant passes the character test, the discretion in section 501(2), to cancel the Applicant’s visa, is enlivened. The Tribunal must consider whether the discretion should be exercised. If the Tribunal decides that the discretion in section 501(2) should be exercised to cancel the Applicant’s visa, the appropriate decision is to affirm the decision under review.
16. If the Tribunal decides that the discretion in section 501(2) should not be exercised to cancel the Applicant’s visa, the appropriate decision would be for the cancellation decision to be set aside and for a decision in substitution to be made to not cancel the Applicant’s visa.
Evidence
17. The Tribunal has considered all of the evidence permissibly before it including the documents described in section 501G of the Act (“G Documents”), the documents tendered into evidence by the Applicant and marked as exhibits A1 to A21 and the documents tendered into evidence by the Respondent and marked R1. The evidence contained in these documents is discussed throughout these Reasons: see ‘Annexure 1’.
18. A summary of evidence of lay witnesses is provided below from paragraph 37 of these Reasons.
does the Applicant pass the character test?
19. Section 501(6) of the Act relevantly provides:
“(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or”
20. Section 501(7) of the Act relevantly provides:
“(7) For the purposes of the character test, a person has a substantial criminal record if:…
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or”
21. The Applicant will be taken to have a substantial criminal record, and thus not pass the character test, if he has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more.
22. Section 501(12) provides that “imprisonment” includes any form of punitive detention in a facility or institution.
Offending history
23. An Australian Criminal Intelligence Commission (ACIC) Criminal History Check for the Applicant dated 18 July 2019 shows the following offences committed by the Applicant:
Court Court Date Offence Court Result Brisbane District Court 20 Jun 2018 Breach of suspended sentence imposed on 09/06/2017 Breach proven
On all charges:
suspended sentence extended
period: 6 months
Brisbane Magistrates Court 18 Apr 2018 Carrying on regulated business between 18/08/2015 and 19/10/2017
Fraud-dishonesty gain benefit/advantage (on 18/09/2015)
Fraud-dishonesty gain benefit/advantage (on 13/09/2016)
Fraud-dishonesty gain benefit/advantage (on 01/09/2017)
On all charges
Conviction recorded
Fined: $500.00
Time to pay: 28d
Fail to comply with reporting (on 29/08/2017) Conviction recorded
Fined: $300.00
Time to pay: 28d
Southport District Court 9 Jun 2017 Indecent treatment of children under 16
(3 charges on 08/08/2015)
On all charges
Conviction recorded sentenced imprisonment: 7 months on each charge
to be suspended for 12 months
24. I am satisfied that the Applicant has a substantial criminal record for the purpose of section 501(6)(a), when read with section 501(7)(d) of the Act, as he was sentenced to 3 terms of imprisonment where the total of those terms is 12 months of more. The Applicant has conceded that he does not pass the character test.
25. I am satisfied that the Applicant does not pass the character test and consequently, the discretion in section 501(2) of the Act, to cancel the Applicant’s visa, is enlivened.
should THE DISCRETION TO CANCEL THE APPLICANT’S VISA BE EXERCISED?
26. In considering whether the discretion in section 501(2) should be exercised to cancel the Applicant’s visa, the Tribunal must comply with any directions made by the Minister pursuant to section 499 of the Act. In this case Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) applies. The Direction provides guidance for decision-makers in determining, relevantly, whether the discretion in section 501(2) should be exercised to cancel a non-citizen’s visa.
27. Paragraph 8(1) of the Direction provides that decision-makers must take into account the primary and other considerations relevant to the individual case.
28. The relevant considerations in relation to consideration of cancellation of a visa are contained in Part A of the Direction.
29. Paragraph 9 of the Direction provides for the consideration of three primary considerations. They are:
A.Protection of the Australian community from criminal or other serious conduct;
B.The best interests of minor children in Australia; and
C.Expectations of the Australian community.
30. Paragraph 10 of the Direction provides for the consideration of other considerations. They include but are not limited to:
A.International non-refoulement obligations;
B.Strength, nature and duration of ties;
C.Impact on Australian business interests;
D.Impact on victims; and
E.Extent of impediments if removed.
31. Paragraphs 8(3) to (5) of the Direction provide:
“(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.”
32. In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 Colvin J stated at [23]:
“Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
33. The Tribunal considers that Colvin J’s assessment regarding the various considerations in Direction 65 apply equally to the considerations in the Direction.
34. The principles in paragraph 6.3 of the Direction reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable and are to inform the consideration of each of the primary and other considerations.
35. The principles in paragraph 6.3 provide a framework within which decision-makers should approach their task of deciding whether to exercise their discretion to cancel visas. The principles in paragraph 6.3 are as follows:
1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers 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.
2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
5)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 only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Summary of the evidence of witnesses
36. The following is a summary of the evidence before the Tribunal including evidence of witnesses who appeared before the Tribunal. The evidence referred to below includes evidence provided in written statements submitted to the Department and the Tribunal and evidence given by the witnesses at the hearing in response to questions under cross‑examination and from the Tribunal.
The Applicant
37. The Applicant was born and raised in Iran to parents who migrated from Afghanistan as refugees. He does not hold citizenship of Iran and is a citizen of Afghanistan. He holds an Afghan passport. He had worked in Iran in the information technology industry. He arrived in Australia with his parents, three sisters and brother on a Subclass 200 visa on 27 June 2013.
38. The Applicant’s first offences of indecent treatment of a child under the age of 16 were committed in August 2015. The Applicant was convicted of three counts of indecent treatment of a child under the age of 16 on 9 June 2017. He was sentenced to 7 months imprisonment for each of the three offences. The sentence was fully suspended for 12 months.
39. As the findings of the criminal court and the way that the court dealt with the Applicant are of great significance to the Tribunal’s decision, the sentencing judges remarks are set out in full below:
“HER HONOUR: Stand up, please. Mr [Applicant’s name], on the 10th of May 2017, you pleaded guilty to three counts of indecent treatment of the complainant. Although the plea was on the second day of the trial, it came about as a result of negotiation between the prosecution and your lawyer. The prosecution discontinued the most serious count of rape, and you offered to plead to the other three charges. This offer was made much earlier, apparently some months before the complainant's evidence was eventually recorded. Your plea is entered on the basis that the indecent touching was consensual which is inconsistent with what the complainant's evidence was.
You also enter your plea on the basis that you believed the complainant was around [redacted] years of age. She was, in fact, only [redacted]. You do accept that your belief was not reasonable. The prosecution submits that it is open for the Court to accept the complainant's evidence that she was an unwilling participant in the acts of indecent treatment that occurred that evening. Because the matter originally proceeded to trial, I have had the opportunity to view the complainant’s evidence in full. She, in fact, was brought back for evidence on a number of occasions, the main reason being that unfortunately she was shown to have lied during her evidence about aspects of her relationship with you.
Eventually, she also admitted to telling lies about text communications that she had with you subsequent to the police charging you. Also, it became clear from what happened at the trial that what happened in the car that evening between you and the complainant came to light after you and the complainant were worried that she might have become pregnant. That worry seems to have been somewhat naïve considering that sexual intercourse did not occur, although, as we have heard, there was some semen smeared across the outside of her vagina after you had masturbated
In any event, what became apparent to me was that it appears the complainant only complained to her mother after she erroneously thought that her mother had found out that there had been some intimate contact between you and that her mother became upset at the thought that, because of her age, she was in a relationship of some type with you. Without going into any further details in relation to the complainant’s evidence, I must consider on what basis I sentence you. In that sense, I must have regard to section 132C of the Evidence Act which states that if evidence placed before the Court by the prosecution is challenged, I must consider the submissions and the evidence to determine if I can be satisfied, on the balance of probabilities, or to an even higher standard in certain cases, that the complainant was a truthful and reliable witness.
Pursuant to section 132C, I am not satisfied to the requisite standard that the complainant was truthful in her evidence that she was not a willing party to the alleged incidents. In fact, I formed the view that you both had romantic thoughts towards each other, that it appears that your mother may have had ideas of you both forming some kind of relationship and that that may have been the reason why she asked the two of you to go and get her some medication. So therefore I do intend to sentence you on the basis that there was some form of romantic relationship at the time of the offending and that you at the very least honestly and reasonably believed that the complainant was consenting to the acts that occurred in the car. But as I say — and I cannot be satisfied that she was not consenting.
Now, in relation to the victim impact statements therefore, I must have regard to that, in assessing the victim impact statements. So therefore, I do have some reservations that adverse impacts the complainant suffered were, in fact, related to non-consensual activity. I consider that any adverse impact which is described by the complainant is more likely to result from a number of other factors, namely, her initial fear she may have been pregnant for someone so young, the fact that her mother found out what had occurred, how this would impact upon the complainant's reputation in the circumstances of the very strict religious culture within her family and wider community.
I understand and do accept that she has suffered distress since all of this has happened. And she, herself, talks about the terrible impact of the Court proceedings upon her as well. And I do accept that as a young girl, she has had to go through a very difficult and upsetting number of years as a result of what has occurred. As I say, though, some of that is not attributable to what you did consensually with her that evening. I also accept that some of the adverse impact is attributable to the complainant’s age at the time and her emotional maturity.
I next move on to the basis of your plea that you state you had an honest belief that she was about [redacted]; however, you accept that it was unreasonable. This appears to be based on what [indistinct] told police and that she, the complainant, had told a number of your friends that she was [redacted]. I also note at the time that these offences occurred, you had known the family for some time. You had known the mother, the sister and the complainant, and you had had a lot to do with them. And so I am very sceptical that you would not have had an idea at the very least that she was under [redacted] years of age. And I certainly understand why it is conceded by you that it was clearly unreasonable that you would have had a belief that she was over [redacted] years of age. But at the end of the day, that is not the factor that determines the type of sentence that I intend to impose upon you.
Before I come to that, I will just deal with your personal circumstances. You were born [Applicant’s date of birth]. So you were 26 at the time. You are now 28. You have no criminal history whatsoever. I note that you have recently come to Australia after being in difficult circumstances overseas. And since you have settled here, the references indicate that you have worked hard, and you have worked in positive ways to assimilate into the community, to have a job, to pay your taxes. You have undertaken volunteer work and appear to play a very active role within the community in which you live. The references all speak of your many good qualities.
In trying to frame an appropriate sentence for you, I must have regard to the principles under the Penalties and Sentences Act, in particular, under section 9 which highlights the importance of having regard to the principles of general and personal deterrence for these types of offences, protection of children in our community, as well as rehabilitation for offenders. Under section 9, subsection (4) of the Penalties and Sentences Act, for offences of this type, a jail sentence where actual time is served must be imposed unless there are exceptional circumstances. In deciding whether there are exceptional circumstances, a Court must have regard, amongst other things, to the closeness in age between the offender and the child, as well as a number of other factors.
I have had regard to a number of decisions, which have been placed before me today, as well as the well-known decisions of the Court of Appeal including R v BCX [2015] QCA 188 in determining whether there are exceptional circumstances. And in this particular case, I find that they are such that any imposition of a term of imprisonment does not have to involve actual custody today. In particular, I have regard to your pleas of guilty, your otherwise good character, your other personal circumstances, which I have referred to, your good work history since being in Australia. You have now also significantly suffered because of the loss of your blue card in relation to your work. And it has also affected your mother and sister in the ways outlined by Mr Wilson.
I also have regard to the positive references and your goals for the future, however, I also have regard to the serious nature of the offences. I note that they all happened on one occasion. And although I have found that the offences were, in essence, consensual, because of your age disparity – you were 26 at the time – you had the child with you that day – with you and your mother. Her mother left her in your care, essentially. You took her to the wedding to look after her. And that there was some adverse impact that has arisen as a result of this, I intend to impose a term of imprisonment on you in relation to the offences.
In relation to each offence, you are sentenced to 7 months’ imprisonment. I order those sentences to be suspended forthwith for an operational period of 12 months during which time you must not commit any further offences punishable by imprisonment. Convictions are recorded. But [Applicant’s name], that means you will not have to serve any time in actual custody, unless you breach those suspended sentences.”
40. The facts constituting the three offences of indecent treatment of a child under 16 were outlined by the prosecutor as follows:
“The Crown case is that the offending effectively occurred in the defendant’s car, as your Honour may recall; that when the defendant took her for a drive, he kissed her on the lips, fondled her breasts, and was-masturbated himself to the point of ejaculation and then rubbed that ejaculate on the vagina of the complainant.”
41. The Applicant’s evidence in relation to his offences for indecent treatment of a child under 16 was all for the most part consistent with the findings of the sentencing judge. That is, the Applicant claims that he was in a relationship with the victim. The Applicant claims that the activity resulting in the offences was consensual. The Applicant believed that the victim was 17 at the time of the offences. The Applicant indicated that he understood at the time of the offending that the age of consent was 16 years of age. The Applicant accepted, as part of his plea of guilty, that the Applicant’s belief that the victim was over the age of consent was unreasonable.
42. The Applicant told the Tribunal that he and the victim were in love and planned to marry when the victim turned 18, in his belief at the time, the year after the offending.
43. On 9 June 2017, the Applicant was sentenced to 7 months imprisonment for each of the three offences but those sentences were fully suspended for 12 months. As a result, the Applicant did not serve a period of imprisonment in relation to those offences. Indeed, the Applicant has never been required to serve a period of imprisonment.
44. Upon being convicted for his offences of indecent treatment of a child under 16, the Applicant was subjected to certain reporting obligations under Queensland legislation. The Applicant was served with a Notice of Reportable Offender Reporting Obligation on 26 June 2017 at the Logan Central Police Station, at which time the Applicant’s reporting obligations were explained to him by a police officer. One of the obligations was that the Applicant was required to report any contact with children under the age of 18.
45. On 12 October 2017 the Applicant reported that he had contact with a one-year-old child when his friend, the child’s mother, had visited the Applicant accompanied by the child. The police contacted the Applicant to ascertain further details about the contact. The police also made contact with the child’s mother. The child’s mother confirmed that she and her one‑year-old child had had contact with the Applicant. She also advised that the Applicant had been providing her 17-year-old daughter with driving lessons. She told the police officer that the most recent driving lesson had occurred on 28 August 2017.
46. Police made enquiries and it was found that the Applicant had never reported his contact with the 17-year-old in accordance with his reporting obligations.
47. The Applicant’s failure to report his contact with a 17-year-old resulted in him being convicted of failure to comply with reporting on 18 April 2018. A conviction was recorded and he was fined $300 in relation to this offence.
48. This information was put to the Applicant at the hearing by the Respondent’s solicitor. The Applicant indicated that his failure to report contact with the 17-year-old was a result of his poor English language skills and lack of knowledge of the law. The Applicant indicated that he had misunderstood the meaning of contact. He said that he thought that contact implied some personal relationship with the child. He also said that, as he only had contact with the 17-year-old when he was giving her driving lessons and that she was usually accompanied by her boyfriend, he thought he had no “contact” with her and therefore had no obligation to report.
49. The Tribunal indicated that this explanation was difficult to believe. As was pointed out to the Applicant during the hearing, he had decided to report contact with a one-year-old child with whom he had no personal relationship, however, he didn’t report his contact with the teenage girl in a car. Relevantly, the reporting conditions had been imposed after he had been found guilty of sexual offences against a teenage girl which occurred in a car.
50. The Tribunal does not believe that, in those circumstances, the Applicant thought that he had to report contact with a one-year-old child in the presence of her mother but did not have to report contact with a teenage girl in a car. The more likely explanation for the Applicant’s failure to report contact with the 17-year-old is that he knew very well that if he reported that he had been providing driving lessons to a 17-year-old girl, it would be discovered that he was operating his business unlawfully.
51. The Applicant was required by law to hold a “blue card” in order to operate as a driving instructor. A blue card is authorisation that the holder can work with the children.
52. When the Applicant was charged with the offences of indecent treatment of a child under the age of 16, his blue card was cancelled and thus he no longer had authorisation to work with children, which was a requirement for working as a driving instructor. The police report indicated that the Applicant had told police in 2015 that he had received notice that his blue card had been cancelled.
53. When the police spoke with the Applicant on 12 October 2017 in relation to his contact with the child, the Applicant indicated that he was still operating his driving instructor business and that he was still operating as a driving instructor in that business.
54. On 16 November 2017 police executed a search warrant at the residential address of the Applicant. The Applicant was not at the address as he had departed Australia on 3 November 2017 and returned on 1 February 2018. During the search, the police discovered a substantial amount of evidence which indicated that the Applicant had been carrying on the regulated business of driving instructor while not being the holder of the blue card.
55. The Applicant’s operation of a business as a driving instructor without a blue resulted in him being convicted of carrying on regulated business [between 18/08/2015 and 19/10/2017] on 18 April 2018. A conviction was recorded and he was fined $500 in relation to this offence and the three fraud offences for which he was convicted, which will be discussed below.
56. The information in relation to this offence was put to the Applicant by the Respondent’s solicitor. The Applicant indicated that he had no idea that he was required to hold a blue card in order to continue to operate his business as a driving instructor until he was told of this requirement by police in 2017 or perhaps after his return from overseas in February 2018. The Applicant indicated that he had applied for a blue card while he was undertaking a course to be a childcare worker. He implied that he believed that he required a blue card to work as a childcare worker but not as a driving instructor.
57. While not without doubt, the Tribunal has concluded that the Applicant knew that he was required to hold a blue card in order to operate his business as a driving instructor. That is the likely reason why the Applicant failed to disclose his contact with the 17-year-old whom he was teaching to drive. It is also consistent with the Applicant pleading guilty to three charges of fraudulent conduct whereby on three separate occasions he indicated that he had not been charged or convicted with offences in his applications to renew his driver trainer accreditation. I will now move on to discussion of these fraud offences.
58. The final three offences for which the Applicant was convicted on 18 April 2018 were offences of “fraud - dishonestly gain benefit/advantage.” These three offences all related to the Applicant providing false information to government authorities when applying for renewal of his driver trainer accreditation in September 2015, September 2016 and September 2017.
59. A question in the renewal form enquired:
“Have you, in the last 10 years been convicted of a criminal offence or been charged with any offence and the charge has not been finally disposed? Conviction includes finding of guilt, and the acceptance of a plea of guilty, by a court whether or not a conviction was recorded.”
60. The Applicant answered “no” to this question in each renewal application form which he completed in 2015, 2016 and 2017.
61. The Applicant had been charged with offences for indecent treatment of a child under the age of 16 in August 2015, prior to him completing the renewal applications in September 2015 and September 2016. He was convicted of these offences in June 2017 prior to completing the renewal application in September 2017.
62. The information in relation to these fraud offences was put to the Applicant by the Respondent’s solicitor. The Applicant indicated that these offences were the result of his having poor English language skills and an inadequate knowledge of the law.
63. At first the Applicant indicated that each time he had answered “no” to the relevant question, he thought that the question was asking whether he had been convicted of an offence in circumstances where he said that at the time he had not been convicted of any offence but was only charged with offences.
64. It was pointed out to the Applicant the question clearly asked the Applicant whether he had been charged or convicted of any offences. The Applicant said that he had miss-read the form on multiple occasions but that this had been a mistake and had not been done intentionally.
65. The Tribunal pointed out that on the third occasion when the Applicant sought renewal of his driver trainer accreditation in September 2017, he had in fact been convicted of three offences. The Tribunal indicated that his previous explanation that he thought that the relevant question was whether he had been convicted of offences did not provide an explanation for why he failed to disclose his convictions from June 2017 in his renewal application in September 2017.
66. The Applicant then appeared to change his evidence regarding the 2017 application form. He indicated that in 2015 and 2016 he answered “no” to the question as he believed that the question was only enquiring about convictions, despite the clear wording of the question which also enquired about outstanding charges.
67. The Applicant said that on the last occasion in 2017 he knew that he had been convicted of three offences of indecent treatment of a child under the age of 16. Despite this, he said that he disclosed his convictions to an employee at the Transport Service Centre and asked the employee how he should answer the question. The Applicant indicated that the employee told him that if he was unsure of the answer to the question, he should leave the question blank or answer “yes”. Despite this, the Applicant answered “no” to the question. Again, the Applicant indicated that this was a mistake and involved no dishonesty on his part.
68. The Tribunal rejects this explanation. The question in the renewal form clearly indicated that the Applicant was to disclose all convictions and unresolved charges. In 2015 and 2016 the Applicant clearly knew that he had been charged with criminal offences. In 2017 he clearly knew that he had been convicted of criminal offences. Despite this, the Applicant answered “no” to the relevant question in three successive years from 2015 to 2017.
69. The Tribunal finds that the reason that the Applicant answered the relevant form dishonestly was so that he would be issued with driver trainer accreditation so that he could continue to operate his business as a driving instructor.
70. The Tribunal notes that the Applicant pleaded guilty to each fraud offence. Each fraud offence was brought pursuant to section 408C(1)(d) of the Criminal Code 1899 (QLD) (“the Criminal Code”) which relevantly provides that “A person who dishonestly gains a benefit or advantage, pecuniary or otherwise, for any person, commits the crime of fraud”. The Applicant’s evidence that he did not answer the renewal form dishonestly is contrary to his plea of guilty for his offences of fraud.
71. The Applicant was convicted of each of the three fraud offences on 18 April 2018. Convictions were recorded and he was fined $500 for these offences and his offence of carrying on regulated business.
72. Finally, as a result of these offences for which the Applicant was convicted on 18 April 2018, the Applicant breached the suspended sentence imposed on 9 June 2017. On 20 June 2018 the Applicant was convicted of breaching his suspended sentence and that suspended sentence of 12 months was extended by six months.
73. The Applicant indicated that he was very close with all of his family members in Australia including his parents, his three adult sisters and especially his youngest brother, who he said was 11 or 12 years old.
74. The Applicant indicated that his father receives a pension and his mother receives a government allowance. He said that his parents provide primary care for his younger brother.
75. The Applicant indicated that his youngest sister is 22 years of age and is currently completing tertiary studies in dentistry. He said that his 26-year-old sister is also studying and is a housewife. He said that his 29-year-old sister owns a restaurant and has taken over the Applicant’s driving instructor business.
76. The Applicant indicated that he and his parents would often assist his 29-year-old sister with her restaurant business.
77. The Applicant indicated that his parents were supported by government payments and that he and his siblings would provide minor financial support by helping his parents out with payment of their bills.
78. The Applicant indicated that he would have contact with his younger brother five or six times a week. He said that they would spend time together on most weekends. He said that he has taken his brother on holiday trips. The Applicant indicated that he is almost 20 years older than his brother and his father is over 50 years older than his brother. The Applicant indicated that as such, his younger brother likes to spend time with him as the Applicant can involve himself in activities which his father cannot given his age and poor health.
79. The Applicant indicated that during his trips overseas his younger brother would frequently contact the Applicant asking him when he was to return. The Applicant indicated that his younger brother’s academic performance suffered when the Applicant had left Australia.
80. The Applicant indicated that his father had told him that, if the Applicant had to relocate to Afghanistan that the Applicant’s father would return to live in Afghanistan with the Applicant to help him adjust to life there. The Applicant indicated that his father is currently 66 years of age and suffers from a number of health conditions such as diabetes, epilepsy, bladder problems, high blood pressure and a lapsed skeletal disc. He said that his mother suffers from hypertension, high cholesterol, depression and obsessive-compulsive disorder.
81. The Applicant provided to the Tribunal patient health summaries for each of his parents. Those health summaries indicated that each parent was currently prescribed various medications. The summary for the Applicant’s father indicates his “Active Past History” as “Right testicle mass; Diabetes Mellitis, Type 2; Dyslipidaemia; High Blood pressure; GORD”.
82. The summary for the Applicant’s mother indicates her “Active Past History” as “vitamin D deficiency; depression; obesity…”.
83. The Applicant indicated that it would be extremely difficult for his father if the Applicant and his father were to relocate to Afghanistan. The Applicant indicated that this was especially so as his parents had fled Afghanistan some 45 years ago due to the poor security situation in Afghanistan at the time.
84. The Applicant indicated that if he and his father were to return to Afghanistan, this would have an extreme detrimental effect on his mother, sisters and younger brother.
85. The Applicant gave evidence that he is currently in a relationship with an adult woman. He indicated that they were married in accordance with Islamic ritual in March 2020. The Applicant indicated that his wife had a miscarriage shortly after their wedding in March 2020. The Applicant indicated that they had yet to celebrate their marriage with friends and family owing to prohibitions on larger gatherings brought about by the spread of the COVID-19 virus. The Applicant indicated that the couple hoped to celebrate their marriage with friends and family on his birthday in 2021.
86. The Applicant indicated that his wife had told him that if he had to relocate to Afghanistan, that she would relocate with him. The Applicant indicated that his wife was not a Muslim and was a New Zealand citizen. He indicated that would be extremely difficult for his wife in Afghanistan. He also indicated that his wife’s relocation to Afghanistan would be difficult for her and her family members in Australia due to their separation.
87. The Applicant told the Tribunal that he had visited Afghanistan only once in his life. The Applicant visited his elderly uncle in Afghanistan in late 2017/early 2018 once the Applicant had already settled in Australia. The Applicant indicated that during his short time in Afghanistan two bombs had detonated not far from where he had been located. He indicated that his only relative in Afghanistan was his uncle who was in his 90s and in poor health. He later indicated that his uncle had five children, the Applicant’s cousins, living in Afghanistan. The Applicant indicated that he had a cousin who had been shot dead in Afghanistan in February 2019.
88. The Applicant indicated that he would never reoffend if he were allowed to remain in Australia. He said that he was remorseful for his offences and was sorry for the impact that his offences had on others including his victim, her family and his family.
89. In the Personal Circumstances Form the Applicant completed in response to the NOICC, he stated the following regarding concerns or fears he had of returning to Afghanistan:
“I never live in Afghanistan before, I went one time to visit my uncle and it was very dangerous and two bomb explod at the time I was there. I didn’t know their language well and all was laugh at me and I have no idia about all custom. They killed my cousin because of money. It’s dangerous.
…
I never live there before and it’s really hard to live in a country without family and parents my siblin.” [Errors in original]
90. In the Applicant’s statutory declaration made on 8 June 2020 the Applicant stated:
“Returning to Afghanistan is an impossible proposition for me for the following reasons. My father and two sisters are Australian citizens. My mother and youngest brother are permanent residents and all of us have called Australia home for 7 years.
My family as well as my fiancé need my presence and ongoing support which is irreplaceable in many significant respects. My only paternal uncle in Afghanistan is now in his 90s and is in very poor health. My cousin was shot dead on 27 February 2019 in Mazar-e Sharif.
Moreover, I have never lived in Afghanistan as I was actually born and raised in the city of Ahwaz in Iran. I am not familiar with ways of life in Afghanistan and felt like a complete stranger when I visited Afghanistan in 2017 for the first and the last time.”
The Applicant’s wife
91. The Applicant’s wife had provided a detailed statutory declaration made on 5 June 2020 to the Tribunal and gave oral evidence during the hearing.
92. The Applicant’s wife indicated that she met the Applicant in September 2018 and that they entered into a romantic relationship in September 2019. She indicated that they were married in an Islamic marriage ceremony on 8 March 2020. She indicated that she discovered she was pregnant in February 2020, but that she miscarried shortly after the marriage ceremony.
93. The Applicant’s wife indicated that she would be devastated if the Applicant were required to relocate to Afghanistan. She indicated that although it would be very difficult for her to live in Afghanistan, she had decided that she would relocate there if the Applicant was required to leave Australia. The Applicant’s wife indicated that neither of them would have family support in Afghanistan. She indicated that Afghanistan is a dangerous place being a “war ridden country” where multiple terrorist groups such as “ISIS and the Taliban” operated. She indicated that the culture and predominant religion in Afghanistan were very different from Australia. She indicated that she would have to wear a hijab, become more conservative, convert to Islam and would not have the same amount of freedom in Afghanistan as she enjoys in Australia.
94. The Applicant’s wife also indicated that her family members in Australia would be greatly affected if she had to relocate to Afghanistan. She indicated that one of her older sisters had emotional and medical problems including epileptic episodes. She indicated that this sister depended on her for emotional and physical assistance. She indicated that another sister had cerebral palsy.
95. The Applicant’s wife indicated that all of her “emotional ties” were in Australia which had been her home for the past 12 years.
96. The Applicant’s wife indicated that she was certain that the Applicant would never reoffend and that he had shown great remorse for his offences. She said that the Applicant had told her about his offences including his offences of indecent treatment of a child under the age of 16. The Applicant’s wife expressed that she and the Applicant are in a loving relationship and have a healthy intimate relationship.
Letters of support
97. In addition to the statement by his wife, the Applicant provided the Tribunal and the Department with over 20 letters in support of the Applicant written by family members, friends and acquaintances. All of those statements attested to the Applicant’s good character. Most of the statements indicated that their authors were aware of the Applicant’s criminal history. Included in the letters before the Tribunal were letters from each of the Applicant’s parents and from two of his three sisters.
PRIMARY CONSIDERATION A: Protection of the australian community from criminal or other serious conduct
98. The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 9.1(2) of the Direction provides that decision-makers should 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.
The Nature and Seriousness of the Applicant’s Conduct to Date
99. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 9.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors including:
a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c) The principle that crimes committed against vulnerable members of the community (such as 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;
d) 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;
e) The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
f) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
g) The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
h) The cumulative effect of repeated offending;
i) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
j) 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 noncitizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour);
k) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
100. The Applicant’s offences can be broadly separated into two types of offending. The first type of offending were his three offences of indecent treatment of a child under the age of 16. I will refer to these offences as the indecent treatment offences. The second type of offending involved offences arising from the Applicant’s continued operation of his driving instructor business as described above. I will refer to these offences as the incidental offences.
101. It is apt to describe the indecent treatment offences as sexual crimes. The Direction indicates that such crimes are to be viewed very seriously.
102. While the indecent treatment offences were not violent in nature, they were committed against a vulnerable 14-year-old child. The Direction indicates that crimes committed against vulnerable members of the community are serious.
103. The Applicant’s offences were not related to immigration detention and he was not found to fail the character test on the basis of section 501(6)(c) of the Act.
104. For each of the Applicant’s three indecent treatment offences, he was sentenced to 7 months imprisonment to be suspended for 12 months. The Applicant was not required to serve any actual period of imprisonment. It is important to note that the maximum penalty for indecent treatment of a child under the age of 16 is 14 years imprisonment.
105. For all of the Applicant’s other offending, that is his incidental offending, the Applicant was fined a total of $800 and his suspended sentence was extended for a period of six months.
106. In relation to frequency of the offending, all three of the Applicant’s indecent treatment offences occurred on the same occasion. The Applicant’s incidental offences occurred between 2015 and 2018 and are far less serious than his indecent treatment offences. It cannot be said that there is any trend of increasing seriousness in the Applicant’s offending.
107. In relation to the cumulative effect of repeated offending in this case, the indecent treatment offending has not been repeated. What has been repeated is that the Applicant has continued to operate a business which required him to hold a blue card in order to operate in circumstances where he has not held a blue card since 2015. The Applicant has also failed to report contact with the child under the age of 18 who he was teaching to drive. In addition, the Applicant dishonestly failed to disclose his charges and convictions in applications for renewal of his driver trainer accreditation.
108. While these offences only attracted a small monetary fine, the Tribunal considers that there is an element of seriousness to this offending. The Tribunal has found that the Applicant deliberately provided false answers in his applications for his driver trainer accreditation and deliberately failed to disclose that he had contact with a child under the age of 18 while teaching her to drive. The Tribunal has also found that it is likely that the Applicant knew that he was not permitted to operate as a driving instructor since 2015 when his blue card was cancelled.
109. These offences are concerning because the Tribunal considers that they evidence a disregard for the law in circumstances where that disregard benefited the Applicant. It appears that all of this offending occurred as the Applicant wished to continue to operate his business as a driving instructor and therefore disregarded laws which may have prevented him from continuing to operate such a business.
110. More importantly, the Applicant’s offending is concerning as the Applicant appeared to be trying to circumvent the very laws which were in place, in part, to protect children from the types of offences that the Applicant had committed. Presumably, the reason why a blue card was required to operate as a driving instructor, is that many people who utilise the services of a driving instructor are under the age of 18 years. Presumably, the reason why the renewal application for driver trainer accreditation contained questions about an Applicant’s convictions and outstanding charges was so that the relevant decision-maker could determine whether a person with convictions or outstanding charges of a certain nature is suitable to hold driver trainer accreditation and teach people to drive. Presumably, the reason that the Applicant was made subject to certain reporting conditions after he had been convicted for the indecent treatment charges, including that he report any contact with children under the age of 18, was so that the authorities would be aware of such contact so that the Applicant would be less likely to reoffend against children in the future.
111. The incidental offending contains an element of seriousness because if the Applicant is prepared to disregard laws which, if followed, may lessen the risk of the Applicant reoffending against children, it might be said that those safeguards are absent thereby increasing the chance that the Applicant will reoffend against children.
112. It does not appear that the Applicant has provided false information to the Department such as to increase the assessment of seriousness of his offending.
113. The Applicant has not been previously warned of the consequences of further offending.
114. All the Applicant’s offences occurred in Australia.
115. In relation to the indecent treatment crimes which the Applicant committed in 2015, the sentencing judge, in her remarks on 9 June 2017, stated the following in relation to the impact on the victim:
“I understand and do accept that she has suffered distress since all of this has happened. And she, herself, talks about the terrible impact of the Court proceedings upon her as well. And I do accept that as a young girl, she has had to go through a very difficult and upsetting number of years as a result of what has occurred As I say, though, some of that is not attributable to what you did consensually with her that evening. I also accept that some of the adverse impact is attributable to the complainant’s age at the time and her emotional maturity.”
116. Section 210(5) of the Criminal Code provides:
“If the offence is alleged to have been committed in respect of a child of or above the age of 12 years, it is a defence to prove that the accused person believed, on reasonable grounds, that the child was of or above the age of 16 years.”
117. The sentencing judge accepted the Applicant’s plea that the defence and section 210(5) did not apply as there were no reasonable grounds for the Applicant’s belief that the victim was above the age of 16 years. Her Honour stated:
“I next move on to the basis of your plea that you state you had an honest belief that she was about [redacted]; however, you accept that it was unreasonable. This appears to be based on what [indistinct] told police and that she, the complainant had told a number of your friends that she was [redacted]. I also note at the time that these offences occurred, you had known the family for some time. You had known the mother, the sister and the complainant, and you had had a lot to do with them. And so I am very sceptical that you would not have had an idea at the very least that she was under [redacted] years of age. And I certainly understand why it is conceded by you that it was clearly unreasonable that you would have had a belief that she was over [redacted] years of age. But at the end of the day, that is not the factor that determines the type of sentence that I intend to impose upon you.”
118. The Tribunal considers that the Applicant’s conduct resulting in his convictions for the indecent treatment offences was serious. As mentioned above, the Direction indicates that sexual crimes are viewed very seriously and that crimes committed against vulnerable members of the community are serious.
119. However, it must be understood that there are very different levels of seriousness of conduct in these types of matters. In determining the seriousness of the conduct in the current matter the Tribunal has relied heavily on the findings and remarks of the sentencing judge. The sentencing judge found that the Applicant’s conduct with the victim was consensual, that they were in a romantic relationship and that the victim had lied about her age.
120. The Tribunal has placed substantial weight on the sentence imposed by the court in this case in determining the seriousness of the conduct. Whereas the maximum penalty for these types of offences was 14 years imprisonment, the Applicant was sentenced to 7 months imprisonment for each offence to be fully suspended for 12 months, meaning he was not required to spend any time in prison serving the sentence of imprisonment. The sentence imposed by the sentencing judge tends to indicate that the conduct, while serious, was at the lower end of the spectrum of seriousness for these kinds of cases.
121. That is not to say that the Applicant’s conduct was not serious. The Tribunal has taken into account that the victim has suffered distress in the way described by the sentencing judge above. The Tribunal accepts the finding of the sentencing judge that it was unreasonable for the Applicant to believe that the victim was over the age of 16. The Tribunal’s shares the sentencing judge’s scepticism of the Applicant’s claim that he would not have had any idea that the victim was under 16 years of age. The Applicant was 26 years old when the offending occurred. By his own admission, he knew that the victim was a teenager at the time (although he says he believed that the victim was 17 years old and able to legally consent to sexual conduct). In those circumstances, where the Applicant was an adult man in a relationship with a teenage girl, it was particularly important that the Applicant ascertain that the girl was able to legally consent to sexual conduct before engaging in that conduct with her.
122. The Applicant’s incidental offences, while far less serious than his indecent treatment offences, are still concerning in the way described above.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
123. Paragraph 9.1.2(1) of the Direction provides that a decision-maker should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Paragraph 9.1.2(1) of the Direction provides that some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
124. In considering the risk to the Australian community presented by an Applicant, the Tribunal must have regard to the two sub-considerations listed in paragraph 9.1.2(2) of the Direction cumulatively. They are:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct.
125. The Tribunal finds that, if the Applicant were to re-engage in criminal conduct similar to his indecent treatment offences, that is, if he were to engage in sexual conduct with girls under the age of 16, it is likely that the nature of the harm to victims would be that they would suffer from psychological and possibly physical injury.
126. If the Applicant were to re-engage in the incidental type offences, it is likely that that would result in a breach of the law and undermine systems put in place to protect children from sexual offences.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
127. There was no expert evidence before the Tribunal regarding the likelihood that the Applicant would reoffend.
128. As mentioned above, the Tribunal remains concerned about the incidental offending which occurred after the Applicant’s indecent treatment offences. He continued to operate as a driving instructor notwithstanding that he was not permitted to do so as he did not hold a blue card. He failed to report contact with a 17-year-old girl he was teaching to drive in breach of his reporting obligations. He dishonestly answered questions in renewal forms for driver trainer accreditation in 2015, 2016 and 2017 so as to not disclose convictions and/or outstanding criminal charges.
129. The Tribunal considers that this conduct is relevant to the risk of reoffending as the Applicant has disregarded and attempted to circumvent laws and rules aimed, in part, at protecting children from those who have been convicted of abusing them. The Tribunal is concerned that if the Applicant continues to disregard laws aimed at protecting children, continues to have unreported contact with children and continues to work in close proximity with them, that this may increase the chance that the Applicant may commit further crimes similar to his indecent treatment offences. It is also concerning that, at the hearing before the Tribunal, the Applicant continued to downplay these offences by denying any dishonest conduct on his part.
130. It is also true, as the Respondent contends, that the Applicant has not undertaken any rehabilitative courses in relation to his offending. However, the Tribunal notes that it is not immediately apparent what type of courses, if any, are available to ensure that adults do not have sexual relations with people who they believe are of the legal age of consent.
131. Balanced against these concerns, there is much evidence before the Tribunal which tends to suggest that it is unlikely that the Applicant will reoffend including by committing further indecent treatment type offences.
132. There is no evidence to suggest that the Applicant has a sexual attraction to girls under the age of 16. As the sentencing judge found, the Applicant believed, although unreasonably, that the victim was 17 years of age. The Applicant and the victim were in some form of romantic relationship. The Applicant’s evidence, which the Tribunal accepts, was that the Applicant and the victim planned to be married. It was in that context that the sexual conduct occurred.
133. There is no evidence which suggests that the Applicant has had, or attempted to have, sexual contact with a person under the age of 16, either before, or since, the offending.
134. The Applicant is now married to an adult woman. The Applicant’s wife expressed that she and the Applicant are in a loving relationship and have a healthy intimate relationship.
135. The Applicant has excellent prospects of employment and has strong family and community support. The Tribunal has taken into account the numerous letters of support for the Applicant provided by his friends, family and acquaintances.
136. Considering all of the evidence permissibly before the Tribunal in relation to this consideration, the Tribunal finds that the risk of the Applicant reoffending, especially of reoffending similarly to his indecent treatment offences, is low.
Conclusion: Primary Consideration A
137. The Tribunal has found that the Applicant’s indecent treatment offending conduct was serious and the nature of the conduct was that the Applicant had consensual sexual contact with a 14-year-old girl with whom he was in a relationship, and whom he unreasonably believed was 17-years-old.
138. The Tribunal has found that the Applicant’s subsequent offences, the incidental offences are, of themselves, far less serious.
139. The Tribunal has found that, if the Applicant were to re-engage in criminal conduct similar to his indecent treatment offences, it is likely that the nature of the harm to victims would be that they would suffer from psychological and possibly physical injury.
140. The Tribunal has found that, if the Applicant were to re-engage in criminal conduct similar to his incidental offences, it is likely that that would result in a breach of the law and undermine systems put in place to protect children from sexual offences.
141. The Tribunal has found that there is a low risk of the Applicant committing any further offences.
142. After giving thoughtful and thorough consideration to this primary consideration, the Tribunal concludes that the primary consideration of the protection of the Australian community weighs in favour of the cancellation of the Applicant’s visa. However, as the Tribunal finds that there is only a low risk of reoffending, the Tribunal does not find that this consideration weighs significantly in favour of cancellation.
143. The Tribunal considers that, because of the low risk of offending that the Applicant presents, only slight weight should be given in favour of cancellation of the Applicant’s visa to the primary consideration of the protection of the Australian community.
Primary Consideration B: The best interests of minor children in Australia
144. Paragraph 9.2(1) of the Direction compels a decision-maker to make a determination about whether visa cancellation is, or is not, in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 9.2(2) and 9.2(3) respectively contain further stipulations. The former provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether to cancel the visa is being made. The latter provides that, if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
145. Paragraph 9.2(4) of the Direction provides a list of factors which must be considered under this consideration where relevant. These are:
a)“The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.”
146. The Applicant does not have any children of his own.
147. The Applicant has a 12-year-old brother in Australia.
148. The Tribunal accepts that the Applicant has a particularly close relationship with his 12‑year-old brother. The Tribunal accepts that the Applicant and his brother see each other five or six times during the week and that they spend time together on most weekends. The Tribunal accepts that the Applicant has taken his brother on holidays. The Tribunal accepts that their relationship is particularly close given that the Applicant is the 12-year-old’s only brother. In addition, the Tribunal accepts that because the 12-year-old’s father is 66 years of age and unwell, the Applicant fulfils the role of a younger more active role model in his brother’s life.
149. The Tribunal accepts that the Applicant’s brother missed the Applicant dearly on the two occasions when the Applicant travelled overseas. The Tribunal is willing to accept that the Applicant’s brother would contact the Applicant regularly by telephone when the Applicant was overseas. The Tribunal is willing to accept that the Applicant’s brother’s academic performance suffered somewhat when the Applicant was overseas because his brother missed the Applicant. The Tribunal accepts that the Applicant’s brother loves the Applicant very much and would want him to remain in Australia.
150. The Tribunal accepts that the Applicant’s brother would be significantly adversely affected if the Applicant had to relocate to Afghanistan. The Tribunal accepts the Applicant’s claim that if he were to relocate to Afghanistan that his father would relocate with the Applicant in order to assist him in adapting to life in Afghanistan. The Tribunal accepts that this would mean that the Applicant’s brother would be without the Applicant and his father. The Tribunal accepts that this would affect the child emotionally and financially, as his father along with his mother fulfil parental roles in relation to the child.
151. The Tribunal accepts that, if the Applicant were allowed to remain in Australia, he would continue to have a close relationship with his brother. The Tribunal does not consider that this would be a parental role, as that role is filled by the Applicant’s parents, the parents of the 12-year-old. However, that role would be a close relationship between brothers. Whether the Applicant will play any positive role in the future in Australia will depend on whether the Applicant continues to offend. If the Applicant was to remain in Australia and was to reoffend this may cause trauma for the Applicant’s brother as a result of possible incarceration and probable removal from Australia. However, the Tribunal has found that the Applicant is unlikely to reoffend.
152. The impact of the Applicant’s prior conduct on his brother is difficult to determine. The Applicant’s prior conduct has resulted in much distress for the family with resulting anxiety over whether the Applicant will be able to remain in Australia.
153. It appears that if the Applicant were required to relocate to Afghanistan that he would be able to have telephone contact with his brother. This is because the Applicant indicated that when he had visited Afghanistan previously, his brother was able to maintain contact with him by telephone. In any event, contact by telephone or other electronic means is no substitute for the relationship that the Applicant’s brother could enjoy with the Applicant if he were to remain in Australia.
154. There is no evidence that the Applicant has abused his brother or neglected him in any way.
155. There is no evidence that the Applicant’s brother has suffered from physical or emotional trauma as a result of the Applicant’s conduct.
156. The Tribunal considers that it is in the best interests of the Applicant’s brother for the Tribunal to set aside the decision to cancel the Applicant’s visa so that the Applicant can remain in Australia and continue to have a close relationship with his brother.
Conclusion: Primary Consideration B
157. The Tribunal finds that the best interests of the Applicant’s brother weigh significantly in favour of setting aside the cancellation decision.
158. The Tribunal attributes significant weight to the primary consideration of the best interests of minor children in Australia in favour of setting aside the decision to cancel the Applicant’s visa.
Primary Consideration C: The expectations of the Australian Community
159. Paragraph 9.3(1) of the Direction states:
“The Australian community expects non-citizens to obey Australia’s laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.”
How are those expectations determined?
160. The decisions of Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500 establish that:
·the concept of community expectations is not a matter to be measured as though it is a provable fact. It is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is an assessment of community values made on behalf of that community;
·it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations; and
·the Government’s views in relation to community expectations are to be found in the Direction itself. It is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community, as it has in the Direction, and for the Tribunal to act on that statement.
161. These principles were confirmed by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction, including the principles in subparagraph 6.3(5) and (7) of the Direction, can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
162. An application for special leave to appeal to the High Court from the decision of the Full Court was dismissed on 24 April 2020.
163. In the present case, the Applicant failed to meet the expectation of the Australian community to abide by the law: see subparagraph 9.3(1) of the Direction. This expectation was breached when the Applicant committed criminal offences between 2015 and 2018.
164. The Tribunal has considered and taken into account the principles in paragraph 6.3 of the Direction including:
·the principle that the Australian community expects that the Australian government should cancel the visas of non-citizens if they commit serious crimes in Australia (see subparagraph 6.3(2) of the Direction); and
·that a non-citizen who has committed a serious crime should generally expect to be denied the privilege of staying in Australia (see subparagraph 6.3(3) of the Direction).
165. The Tribunal has considered that Australia may afford a higher level of tolerance to criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life or from a very young age (see subparagraph 6.3(5) of the Direction). In the present case, the Applicant arrived in Australia in 2013 as a 24-year-old adult. He began offending in 2015. The Applicant has not lived in Australia for most of his life or from a very young age. In those circumstances, the Tribunal considers that the Applicant should not be afforded a higher level of tolerance.
166. However, the evidence before the Tribunal suggests that the Applicant has made a positive contribution to the Australian community during his time in Australia (see subparagraph 6.3(7) of the Direction). He has studied in Australia, been employed and operated a business during the periods of time he was allowed to work. The many letters of support provided by the Applicant show that he has made significant bonds with members of the community during his time here.
Conclusion: Primary Consideration C
167. The Tribunal has found that the Applicant has breached the expectations of the Australian community outlined in the Direction in relation to committing criminal offences.
168. The Tribunal places moderate weight on this consideration in favour of cancellation of the Applicant’s visa.
Other Considerations
169. There are five “other considerations” disclosed in the Direction under paragraph 10(1):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
(a) Non-Refoulement Obligations
170. The Applicant has not made any clearly articulated claim to the effect that the cancellation of his visa may result in the breach of Australia’s non-refoulement obligations.
(b) Strength, nature and duration of ties
171. Paragraph 10.2 of the Direction provides:
(1)Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non‑citizen arrived as a young child, noting that:
i.less weight should be given where the noncitizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of cancellation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
172. The Applicant first arrived in Australia in 2013 when he was 24 years of age. He has lived in Australia ever since. The Applicant’s indecent treatment offences were his first offences and these occurred about two years after he arrived in Australia. He went on to commit his incidental offences between 2015 and 2018, but these offences were far less serious than his indecent treatment offences. As mentioned above, for most of the time that the Applicant has been in Australia he has been contributing positively to the Australian community.
173. The Tribunal finds that cancellation in this case will have a substantial and ongoing negative affect on the Applicant’s immediate family in Australia, that is, his wife, his parents and his siblings. The Applicant’s father and sisters are Australian citizens and his mother and brother are Australian permanent residents. The Applicant’s wife holds a Class TY Subclass 444 Special Category visa and has a right to remain indefinitely in Australia.
174. The Tribunal considers that the cancellation of the Applicant’s visa would have a significant negative effect on the Applicant’s wife. The Tribunal finds that the effect of cancellation for the Applicant’s wife would be that she would relocate to Afghanistan. The Applicant’s wife has never lived in Afghanistan and would be leaving behind a close-knit family in Australia. The Applicant’s wife’s mother and three of her siblings live in Australia. The Applicant’s wife would be deprived of the support of her family, and her family members in turn would be deprived of the presence and support of the Applicant’s wife. This is especially significant in circumstances where two of the Applicant’s wife’s sisters have significant medical conditions and the Applicant’s wife provides them assistance in living with their conditions.
175. The Tribunal accepts the evidence of the Applicant’s wife that she would find it very difficult to live in Afghanistan. The Tribunal accepts the Applicant’s wife’s evidence that Afghanistan is a very dangerous place being a “war ridden country” where multiple terrorist groups such as “ISIS and the Taliban” operate. The Tribunal accepts the Applicant’s wife’s evidence that culturally, Afghanistan is very different from Australia and that it is likely that she would have to convert to Islam, wear a hijab, become more conservative and would not have the same amount of freedom in Afghanistan as she enjoys in Australia.
176. The Tribunal finds that affirmation of the cancellation decision would have a significant negative effect on the Applicant’s parents and siblings in Australia. The effect on the Applicant’s brother has been considered above as a primary consideration. The Tribunal considers that the Applicant’s father, who would return to Afghanistan to assist the Applicant, would be severely negatively affected. He is a 66-year-old man who suffers from a number of medical conditions. It is not clear whether the Applicant’s father would receive adequate medical care in Afghanistan. As was noted in the Applicant’s contentions, the Applicant’s parents fled Afghanistan as refugees before the Applicant was born. The Applicant’s father would be separated from his wife and other children, including his 12-year-old son.
177. Similarly, affirmation of the cancellation decision would result in the Applicant’s mother and his siblings being separated, not only from the Applicant, but from the Applicant’s father. The Tribunal accepts that this would have a severe negative impact, both emotionally and financially, on the family.
178. Overall, the Tribunal finds that the Applicant has strong ties to Australia. The Tribunal finds that this consideration weighs against cancellation of the Applicant’s visa. The Tribunal places significant weight on this consideration in the Applicant’s favour.
(c) Impact on Australian business interests
179. Neither party has argued that this consideration is relevant in the current matter. In these circumstances the Tribunal places no weight on this consideration.
(d) Impact on victims
180. Paragraph 10.4(1) of the direction provides:
“Impact of a decision not to cancel a visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for visa cancellation has been afforded procedural fairness.”
181. There is no direct evidence of the impact of a decision not to cancel on members of the Australian community including victims of the Applicant’s offences and their family members. The Tribunal considers that the prudent course in the absence of direct evidence of the impact of a non-cancellation decision is to place no weight on this consideration.
182. In these circumstances, the Tribunal places no weight on this consideration.
(e) Extent of impediments if removed
183. Paragraph 10.5 of the Direction provides:
(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)The non-citizen's age and health;
b)Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
184. Neither party put any independent country information in relation to Afghanistan before the Tribunal.
185. The Applicant is 31 years of age and is of good health. As the Applicant was raised in Iran and has never resided in Afghanistan, the Tribunal accepts that there would exist for the Applicant significant language and cultural barriers to him relocating to Afghanistan. The Applicant’s evidence, which the Tribunal accepts, is that the Applicant speaks Farsi whereas the predominant Persian language in Afghanistan is Dari. The Tribunal accepts that these are different dialects of the Persian language.
186. The Tribunal accepts that the Applicant has a 90 year old uncle and five cousins who live in Afghanistan. It is not clear what, if any, support the Applicant’s family members in Afghanistan may be able to provide the Applicant. In the same way, it is not clear what, if any, social, medical or economic support would be available to the Applicant in Afghanistan.
187. The Tribunal considers that the Applicant and his wife would be greatly comforted by the presence of the Applicant’s father in Afghanistan. However, given the Applicant’s father’s age and frail health, it is unclear what level of assistance, in practical terms, the Applicant’s father would be able to provide the Applicant. Indeed, it may well be that the need for the Applicant to care for his ageing father may be a further impediment to him establishing himself in Afghanistan.
188. The Applicant has always been gainfully employed in Australia and before that in Iran. It appears that he is a resourceful and hard-working man. This augurs well for his employment prospects in Afghanistan.
189. The Tribunal finds that the Applicant will face great difficulty in re-establishing himself in Afghanistan. He has never lived there and is unfamiliar with the language and culture.
190. The Tribunal accepts that the Applicant would be very upset if he were permanently removed from Australia. The Tribunal accepts that the Applicant will be greatly affected not only by having to establish himself in Afghanistan for the first time, but he would also be greatly concerned for the well-being of his wife and elderly father. The Tribunal also accepts that the Applicant would greatly miss his mother and siblings in Australia and would be concerned for their well-being, having to live without the Applicant and his father. The Tribunal also accepts that Applicant would suffer distress for being responsible for his wife and father having to uproot their lives in Australia to live in Afghanistan.
191. The Tribunal has also taken into account under this consideration concerns that the Applicant has expressed relating to the state of security in Afghanistan. The Applicant indicated that Afghanistan was a dangerous place. He indicated that when he visited Afghanistan for the first time recently, that two bombs exploded near where he was located. He also indicated that his cousin was shot dead in February 2019. While neither of the parties put any independent country information about Afghanistan before the Tribunal, the Tribunal accepts the Applicant’s evidence and finds that the security situation in Afghanistan is far worse than that in Australia. This is consistent with the evidence of the Applicant, each of his parents and his wife.
192. Tribunal finds that the Applicant (and his wife and father) would be at a far greater risk of being harmed or killed in Afghanistan than in Australia, owing to the poor state of security in Afghanistan at present.
193. The Tribunal finds that this consideration weighs against cancellation of the Applicant’s visa. The Tribunal attributes significant weight to this consideration in the Applicant’s favour.
Conclusion: Should the discretion to cancel the Applicant’s visa be exercised?
194. The Tribunal has found that the primary consideration of the protection of the Australian community weighs slightly in favour of visa cancellation. The Tribunal has found that the Applicant’s indecent assault offences were serious, that there could be harm to the Australian community or to members of the community if they were repeated and that there is a low risk that the Applicant will reoffend.
195. Similarly, the Tribunal has found that the primary consideration of the expectations of the Australian community weighs moderately in favour of visa cancellation. The Tribunal has found that the primary consideration of the best interests of minor children, in this case, the Applicant’s 12-year-old brother weighs significantly against visa cancellation. The Tribunal has found that the consideration of the strength, nature and duration of ties of the Applicant to Australia weighs significantly against visa cancellation. Finally, the Tribunal has found that the consideration of the extent of impediments if removed weighs significantly against cancellation of the Applicant’s visa.
196. After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 6.3 of the Direction, I have decided that the primary consideration of the best interests of minor children in addition to the ‘other’ considerations of the Applicant’s ties to Australia and the extent of impediments for the Applicant in re-establishing himself in Afghanistan, outweigh the weight in favour of cancellation attributed to each of the primary considerations of the protection of the Australian community and expectations of the Australian community.
197. The Tribunal has found that the Applicant does not pass the character test but has decided that the discretion to cancel the Applicant’s visa should not be exercised.
198. Therefore, the Tribunal finds that the Minister’s delegate’s decision, to cancel the Applicant’s visa, should be set aside and that a decision in substitution be made that the Applicant’s visa should not be cancelled. The Tribunal considers that this is the preferable decision in this case.
DECISION
199. The Tribunal sets aside the decision under review and makes a decision in substitution that the Applicant’s visa not be cancelled.
I certify that the preceding one hundred and ninety-nine [199] paragraphs are a true copy of the reasons for the decision herein of Member Tigiilagi Eteuati
..............................[SGD].........................................
Associate
Dated: 28 July 2020
Date of hearing:
3 July 2020
Representative for the Applicant:
Farnam Razzaghipour
Farnam Immigration and Language Services
Solicitor for the Respondent:
Jake Kyranis
Sparke Helmore Lawyers
EXHIBIT REGISTER
File No: 2020/2179
Between: DHHH (Applicant)
And:MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS (Respondent)
Heard on: Friday, 3 July 2020
At: Brisbane, Hearing Room 6.07Before: Member T Eteuati
Associate: Abby T84th Day: 28 July 2020
EXHIBIT
DESCRIPTION OF EVIDENCE
DATE OF DOCUMENT
DATE RECEIVED
G1
Section 501 G-Documents (paged 1 to 117)
-
21 May 20
R1
Respondent’s Tender Bundle (pages 1 to 23)
-
19 June 20
A1
Statutory Declaration: Family friend (pages 1 to 5)
4 June 20
9 June 20
A2
Statutory Declaration: Acquaintance (pages 1 to 4)
4 June 20
9 June 20
A3
Statutory Declaration: Friend (pages 1 to 5)
3 June 20
9 June 20
A4
Statutory Declaration: Applicant’s sister (pages 1 to 5)
-
9 June 20
A5
Statutory Declaration: Applicant’s sister (pages 1 to 5)
8 June 20
9 June 20
A6
Statutory Declaration: Applicant’s father (pages 1 to 4)
8 June 20
9 June 20
A7
Statutory Declaration: Applicant (pages 1 to 9)
8 June 20
9 June 20
A8
Statutory Declaration: Tafe acquaintance (pages 1 to 5)
3 June 20
9 June 20
A9
Statutory Declaration: Applicant’s wife (pages 1 to 8)
5 June 20
9 June 20
A10
Statutory Declaration: Acquaintance (pages 1 to 5)
2 June 20
9 June 20
A11
Statutory Declaration: Family friend (pages 1 to 5)
4 June 20
9 June 20
A12
Statutory Declaration: Tafe acquaintance (pages 1 to 4)
3 June 20
9 June 20
A13
Statutory Declaration: Friend (pages 1 to 5)
4 June 20
9 June 20
A14
Statutory Declaration: Work acquaintance (pages 1 to 4)
4 June 20
9 June 20
A15
Statutory Declaration: Applicant’s mother (pages 1 to 5)
8 June 20
9 June 20
A16
Statutory Declaration: Tafe acquaintance (pages 1 to 5)
4 June 20
9 June 20
A17
Statutory Declaration: Friend (pages 1 to 5)
4 June 20
9 June 20
A18
Statutory Declaration: Acquaintance (pages 1 to 4)
5 June 20
9 June 20
A19
Statutory Declaration: Ex-neighbour (pages 1 to 4)
5 June 20
9 June 20
A20
Patient Health Summary of Applicant’s father
-
9 June 20
A21
Patient Health Summary of Applicant’s mother
-
9 June 20
0
7
0