Djafari and Minister for Immigration and Border Protection (Migration)

[2017] AATA 42

Djafari and Minister for Immigration and Border Protection (Migration) [2017] AATA 42 (4 January 2017)

Division	GENERAL DIVISION
File Number	2016/5566
Re	Yan Yan Djafari
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Professor R Deutsch, Deputy President
Date	4 January 2017
Place	Sydney

The decision under review being the decision of the respondent of 13 October 2016 to refuse to grant the applicant a Partner visa under s 501(1), is affirmed.

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

Professor R Deutsch, Deputy President

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – partner visa refusal – failure to pass the character test – whether to exercise s 501(1) discretion to refuse on character grounds – substantial criminal record – primary considerations – protection of the Australian community – expectations of the Australian community – impact on family members – primary considerations outweigh other considerations – whether applicant would re-offend – tribunal not satisfied the grant of the visa would be consistent with expectations of the Australian community – decision affirmed

LEGISLATION

Migration Act 1958 (Cth), s 371(3), s 501(1)

Statutory Declarations Act 1959 (Cth), s11

SECONDARY MATERIALS

Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Professor R Deutsch, Deputy President

4 January 2017

FACTS

Background

1. The applicant was born in late 1966 in Indonesia and came to Australia at the age of 42 arriving on 1 September 2008 as the holder of a Tourist visa which was to expire on 1 December 2008.

2. On 10 December 2008 some 9 days after the expiry of her Tourist visa, the applicant applied for a Protection visa.

3. That application was refused in February 2009.

4. That refusal decision was affirmed by the former Refugee Review Tribunal in May 2009.

5. A subsequent application for Ministerial Intervention was unsuccessful.

6. The applicant held a series of Bridging E visas from the time her first Tourist visa expired.

7. On 5 March 2010, the applicant applied for a Partner (Temporary) visa, Class UK subclass 820.

8. On the same day, the applicant was granted a bridging visa which expired on 25 August 2010.

9. On 1 March 2011, the applicant was found guilty in North Sydney Local Court of the following offences for which she received a sentence of imprisonment for one year on each charge:

   (a)Use false document to obtain financial advantage (8 charges);

   (b)Larceny;

   (c)Possess false document to obtain financial advantage (2 charges); and

   (d)Goods in personal custody suspected of being stolen.

10. The applicant was released from custody on parole on 31 August 2011.

11. Her parole conditions included that, among other things:

    ·she be of good behavior;

    ·she not commit any offence while released on parole;

    ·she gain employment; and

    ·she remain subject to supervision by a probation and parole officer.

12. The visa application made on 5 March 2010 was refused by a delegate of the Minister on 13 January 2012 on the basis that the delegate was not satisfied that the applicant was the de facto partner of her sponsor, Gregory James Webster (“Mr Webster”).

13. On 25 August 2010 the applicant was granted a bridging visa without work restrictions.

14. On 9 January 2014, the former Migration Review Tribunal (“MRT”) remitted the visa application made on 5 March 2010 to the respondent with a direction that the applicant was the de facto partner of Mr Webster.

15. On 2 May 2016, the applicant was issued a Notice of Intention to Consider Refusal (“the Notice”) in relation to the visa.The Notice informed the applicant that consideration was to be given to whether the applicant’s visa application should be refused under s 501(1) of the Act. The Notice informed the applicant of the information indicating that she had a “substantial criminal record” as defined in s 501(7) of the Act, and invited her to provide comment or information on whether:

    (a)she passed the character test, and

    (b)the discretion to refuse the visa should not be exercised.

16. On 23 September 2016, the Minister refused to grant the visa under s 501(1) of the Act, the applicant was notified of this decision on 13 October 2016.

17. On the day of the refusal her bridging visa granted on 25 August 2010 was cancelled.

18. The applicant was subsequently taken into immigration detention.

19. On 18 October 2016, the applicant made an application to this Tribunal for a review of the visa refusal decision.

20. The applicant is presently detained at Villawood Immigration Detention Centre.

    REFUSAL DECISION AND REVIEW APPLICATION

    ISSUES

21. It is not in dispute that the applicant does not pass the character test under s 501 by virtue of her “substantial criminal record.” Her 2011 conviction and imprisonment is sufficient for these purposes.

22. The only issue for consideration in this review is whether the Tribunal ought to exercise the discretion available in s 501(1) of the Act to refuse to grant the applicant a visa.

23. The Tribunal’s determination of that issue must be guided by the relevant principles and considerations set out in Direction 65. That Direction requires the Tribunal to consider whether or not the following three primary considerations weigh in favor of the refusal of a visa:

    (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.

    In addition, without limiting what the Tribunal can consider, the Tribunal must have regard to a number of other secondary considerations.

    LAW

    Legislation

24. Section 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that they pass the character test.

25. The character test is defined in s 501(6) of the Act. Relevantly, a person will not pass the character test if he or she has a “substantial criminal record”, the definition of which includes circumstances where a person is sentenced to a term of imprisonment of 12 months or more.

26. The applicant concedes that she does not satisfy the character test.

27. Section 501(1) contains a discretion by virtue of the word “may”. That is, if the applicant does not pass the character test, the decision-maker has a discretionary power to either refuse or grant the visa.

    Ministerial Direction No. 65

28. Decisions under the Act must be made in compliance with any written directions given by the Minister under the Act: section 499 (2A) of the Act.

29. Relevantly, in considering a refusal under s 501, the decision-maker must have regard to Direction No 65, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (“Direction 65”).

30. Direction 65 provides that the decision is to be approached within the framework of the principles in paragraph 6.3 of the Direction (“the Principles”), which 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 vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or 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.

31. Informed by the Principles, the decision-maker must take into account the primary considerations in Part B of Direction 65, in deciding whether to refuse a non-citizen’s visa. The primary considerations are:

    (a)Protection of the Australian community from criminal or other serious conduct;

    (b)The best interest of minor children in Australia; and

    (c)Expectations of the Australian community.

32. In deciding whether to refuse a visa, the decision maker must take into account other considerations insofar as they are relevant. These include but are not limited to:

    (a)International non-refoulement obligations; 

    (b)Impact on family members;

    (c)Impact on victims; and

    (d)Impact on Australian business interests.

33. Accordingly, the determinative issue in this matter is whether the Tribunal ought to exercise the discretion available in s 501(1) of the Act to refuse to grant the applicant a visa.

34. This issue is addressed below by reference to the matters sequentially set out in Part B of Direction 65.

    THE PRIMARY CONSIDERATIONS

    (a)    The Protection of the Australian Community

35. This factor involves a consideration of two matters:

    (i)    the nature and seriousness of the applicant’s conduct to date; and

    (ii)   the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.

    (i)The nature and seriousness of the applicant’s conduct to date

36. The applicant has conceded that the nature of her offences is serious: Applicant’s Submissions, dated 28 November 2016 on p.4.

37. The offences for which the applicant was convicted and sentenced to prison involved dishonesty, fraud and financial deception. The applicant acquired and knowingly used false documents for the purposes of defrauding members of the Australian community and Australian businesses. The offences in question do not involve violence and are not sexual in nature. Nonetheless they are all serious offences under paragraph 11.1.1(1)(a) of Direction 65.

38. In her evidence she sought to deflect some of the blame by referring to a third party who went by the name of Mas or Bang (“Bang”). The applicant indicated that Bang had befriended her and loaned her some $1870 which she had not fully repaid.  Bang then indicated that the applicant could pay off her loan by opening fraudulent bank accounts and that this is what led her into the criminal activity.

39. No evidence was adduced to support the suggestion that Bang actually existed or that he had coerced the applicant in this way.

40. It was not suggested that in the criminal proceedings this was a relevant consideration at any level.

41. It is impossible for this Tribunal to take into account a matter of such dubious authenticity with no evidence other than the applicant’s assertion to support it.

42. The seriousness of the applicant’s conduct is reinforced by the sentence imposed on her. Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy, especially where the offender has no prior criminal history. Accordingly, where the Courts have sentenced an offender to a term of custodial imprisonment, such sentences must be viewed as a reflection of the seriousness of the offence involved. In the present case, the applicant received a custodial sentence of one year in prison with a non-­parole period of six months.

43. Furthermore, it is not clear on how many separate occasions the applicant went to a bank to open accounts in fictitious names but it was on at least 2 separate occasions and quite possibly as many as 5 such occasions. In any event there were 12 separate charges laid against the applicant relating to 4 different categories of offence. 

44. The Minister has acknowledged that the applicant has no other recorded convictions in Australia and does not have a criminal record in Indonesia: G-Documents, pp.54 and 61.

45. However, this does not in any way diminish the seriousness of the offences for which the applicant was imprisoned in 2011.

46. At the hearing a number of further matters arose regarding the applicant’s conduct. The Tribunal notes that none of these further matters have given rise to any charges or convictions.

47. First, the visa records produced by the respondent indicate that the applicant held a number of visas in the period from 16 July 2008 until 25 August 2010 all of which denied her the ability to work in Australia.

48. Notwithstanding such restrictions, from her evidence it became apparent that she had worked both as a cook and as a cleaner in that period, albeit spasmodically, in each case for a modest cash return.

49. The applicant sought to emphasize the spasmodic nature of the work and the modest returns but only grudgingly accepted she was in clear breach of her visa conditions.

50. Secondly, the applicant was granted a visa on 25 August 2010 which remained valid and effective up until 23 September 2016 and which did not have the “no work” restriction that had been a condition of all her previous visas.

51. During that time she worked in a restaurant for 30 hours per week earning $16 per hour which translates into a gross weekly salary of $480.

52. From her own testimony, it seems to be the case that while she did at some stage obtain a Tax File Number, she never lodged a tax return and never paid tax in Australia. From the available evidence it seems that no tax was ever deducted from her fortnightly cash pay packet.

53. She said that she was under the misapprehension that she did not need to pay tax in Australia as she only worked 30 hours per week. Indeed, if she were treated as a resident of Australia, it is possible that she would not have been liable to pay tax on these earnings if her deductions and tax offsets were sufficient but the obligation to lodge a tax return is not thereby waived. If she were treated as a non-resident, the applicable marginal rates would have been even higher and tax is almost certain to have been payable.

54. As it is, it is not possible to ascertain from the available evidence, the extent of any tax evasion involved in this case. Indeed, this issue was not explored by the respondent and it is therefore difficult to reach any definitive conclusions.

55. It is sufficient for these purposes to simply conclude that there is a very strong likelihood that there has been a contravention of Federal taxation laws in Australia.

56. In light of these considerations, the Tribunal concludes that at least part of her employment in Australia has been undertaken in circumstances where there has been a breach of both Australian migration laws and taxation laws.

57. This adds significantly to a negative view of the applicant’s conduct.               

    (ii)Risk to the Australian community

58. Paragraph 11.1.2(1) of Direction 65 provides that in determining whether the non-citizen represents an unacceptable risk, decision makers 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, and that some conduct and the harm that would be caused if it were repeated may be so serious that any likelihood that it may be repeated may be unacceptable.

59. Further, paragraph 11.1.2(2) of Direction 65 makes plain that given Australia’s low tolerance of any criminal or other serious conduct by visa applicants, there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

60. In considering the risk to the Australian community, the Tribunal must have regard to:

    ·the nature of the harm to individuals or the Australian community should the non-citizen engage in further such criminal or other serious conduct, and

    ·the likelihood of recurrence i.e.  the non-citizen engaging in such conduct in the future.

    Nature of the Harm

61. The nature of the harm to victims if the applicant were to reoffend in the future is very serious. The Minister contends that the consequences of similar offences in the future could potentially involve significant psychological damage to members of the Australian community, and significant financial loss to individuals and local businesses.

    Likelihood of recurrence

62. The respondent submits that there is a real and not insignificant risk that the applicant will reoffend.

63. The applicant made an impassioned plea at the conclusion of the hearing in which she indicated to the Tribunal that she promises not to commit any further offences if she were to be granted a further visa and that she would be a law abiding citizen for the rest of her life.

64. The Tribunal is concerned about a number of features in this case which point to the likelihood that the applicant will reoffend if faced with similar circumstances to those that led to her past offences. Further, the evidence indicates that those circumstances may well arise in the future. In this respect, the Tribunal notes the following matters:

    (a)The pre-sentence report dated 1 March 2011 revealed that the applicant appeared to rationalise her actions by linking her actions to the death of her mother and the anguish that was causing her.This would seem to suggest that the applicant had little actual remorse for her fraudulent behavior but would prefer to simply blame her fraudulent behavior on external matters that were beyond her control.

    (b)The pre-sentence report makes a number of comments regarding the applicant but does not reflect at all on the likelihood of recidivism in this case.

    (c)A draft report by Mr Watson-Munro, a forensic psychologist, dated 8 August 2016 remained in draft form at the hearing. Apparently, this circumstance arose because of the failure by the applicant to pay for the psychologists services. In such circumstances there is a strong likelihood that permission has not been given for the report to be used in any manner in these proceedings. Nonetheless, the draft report forms part of the applicant’s submissions and I have read the report in full. Nowhere in that report is there an assessment of the likelihood of the applicant repeating all or any of the offences for which she has already been convicted.

    (d)As at December 2013, the applicant was still reliant on her de facto partner for money. The evidence indicates that the applicant does not earn very much money from her employment: Applicant’s Statutory Declarations of 2 December 2013 and 4 September 2015.

    Mr Watson-Munro stated in his draft report that the applicant “fell into criminal error during escalating financial pressures, which were compounded by demands to repay various debts: Report of Tim Watson Munro dated 8 August 2016, page 5.

    Thus, there seem to be factors at play here which suggest that the applicant may find herself under financial pressure in the future resulting in a real and not insignificant risk that she will reoffend. This is particularly so if her financial situation was to deteriorate again or if family circumstances arise which require a need for money which she cannot readily obtain from her de facto partner.

1. Applying the guidance in paragraphs 11.1.2(1) and (2) of Direction 65, and given the nature of the offences, the Minister contends that the risk of the applicant reoffending is unacceptable. This consideration weighs heavily in favor of refusal.

   (b) Best Interests of Minor Children

2. This criterion has no direct application as there are no minor children in Australia.

3. However, the Tribunal does note that the applicant has a 17 year old daughter living in Indonesia and that fact is a matter which I can have regard to in making this decision. At the hearing the respondent referred to this matter but indicated that it was not pressing the point.

4. The Tribunal is not relying on the fact that the applicant’s minor daughter lives in Indonesia in reaching this decision.

   (c) The Expectations of the Australian Community

5. This primary consideration heavily weighs in favour of refusal. Direction 65 indicates at paragraph 11.3(1) that visa refusal 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 be granted a visa. It further notes that decision makers should have due regard to the government’s views in this respect.

6. Principle 2 confirms the expectation of the Australian community that a person who commits serious crimes should have their visa application refused.

7. Principle 6 indicates that Australia has a low tolerance in respect of any criminal or other serious conduct by the applicant, being a visa applicant, such that there should be no expectation that the applicant be allowed to remain permanently in Australia.

8. Given the nature of the applicant’s offences, and the fact that she used fraudulent documents to engage in financially deceptive behaviour, the Australian community would expect that the applicant should not hold a visa.

   Other Considerations

   Non-refoulement obligations

9. The applicant has had a previous application for a protection visa denied: G-Documents, Attachment L, p.90 at [9].

10. Accordingly, the Tribunal places no weight on the non-­refoulement consideration.

    Impact on family members

11. The Minister acknowledges that the applicant has been in Australia for a little over eight years and appears to have been in a relationship with her de facto partner for almost all of that time.

12. The Minister further acknowledges that the MRT found on 9 January 2014 that the relationship between the applicant and her de facto partner was genuine and that the applicant satisfied the relevant criteria for the grant of the visa.

13. The applicant’s de facto partner, Mr Webster, has stated that he would be “sad” and “feel very lonely” and “weak” if the applicant was removed from Australia.

14. Mr Webster gave less than convincing evidence at the hearing in which he indicated his love for the applicant and how difficult it would be for him without her.

15. Mr Webster was cross-examined extensively in regard to a letter which he had written to the Department in which he sought to withdraw his sponsorship of the applicant and a subsequent telephone conversation with a member of the Department confirming that position.

16. He subsequently sought to deny ever making such a statement either in the letter or in the phone conversation.

17. In particular, by his own admissions at the hearing he confirmed that:

    (a)He had lied under oath in giving evidence about this issue before the MRT, see G Documents p.95 at [42] – [43]; and

    (b)He had lied about this issue in the sworn Statutory Declaration that he made on 27 October 2012 and again in a further sworn Statutory Declaration that he made on 4 December 2013, see G documents p.75 at [108] – [109].

18. That he had lied is readily apparent as it is now clear that he had previously signed a letter indicating that he was withdrawing his sponsorship of the applicant which was written in his own hand.

19. Section 371(3) of the Migration Act 1958 provides as follows:

    “A person appearing before the Tribunal to give evidence must not intentionally give evidence that is false or misleading in a material particular.”

20. Section 11 of the Statutory Declarations Act 1959 provides:

    “A person must not intentionally make a false statement in a statutory declaration.”

21. Clearly, Mr Webster, by his own admissions, has contravened both these sections - the first on one occasion and the second on two occasions.

22. Mr Webster clearly became agitated at the hearing after repeated questions about his prior statements and suggested to counsel for the respondent that he “move on” and “grow up.”

23. However, notwithstanding Mr Webster’s suggestions,  in the face of such clear untruths  made under oath, not once but on three separate occasions, it is difficult to see what reliance one can place on his evidence given under oath at the Tribunal on this occasion.

24. Overall, I found Mr Webster to be a difficult witness who was largely disinterested in answering the questions that were put to him and I heavily discount the relevance of his testimony in the circumstances.  

25. In any event, even if I were to take into account Mr Webster’s evidence, I conclude that, even though this factor would favor the applicant, this factor does not outweigh the considerations favoring visa refusal. In this respect, I note the following:

    (a)The evidence indicates Mr Webster cared for himself before he met the applicant, and there is no evidence that he would not be able to look after himself in the future if the applicant were to be removed from Australia.

    (b)On his own evidence to the MRT, Mr Webster would be able to continue to meet his financial obligations in Australia if the applicant were to be removed from Australia: G-Documents, Attachment L, p.99 at [70].

    (c)Mr Webster could choose to relocate to Indonesia and even though that course would undoubtedly pose some difficulties for him, it is a course that is open to the couple should they wish to maintain their relationship. Indeed, in at least one Statutory Declaration sworn by Mr Webster a suggestion to consider such an option was raised as a possibility by Mr Webster and the fact that his own daughter is now aged 25 and living independently would make the possibility even more attractive: Statutory Declaration of Gregory Webster dated 17 December 2013 at [16] and [17]. 

    Impact on Australian business interests

26. There is no specific evidence on this issue. In particular, there is no evidence that the applicant’s removal from Australia would have any impact on Australia business interests.

    CONCLUSIONS

27. The Tribunal concludes that all the primary factors favor refusal of the grant of the relevant visa.

28. More specifically:

    (a)the applicant’s conduct to date has involved a number of serious criminal offences;

    (b)there is no objective evidence to suggest that the applicant will not offend again;

    (c)if she does so re-offend the harm to the Australian community is likely to be substantial in terms of psychological damage and financial loss;

    (d)there are no minor children in Australia that would be detrimentally affected by the applicant’s removal from Australia;

    (e)the Australian community would have reasonable expectations that a person who has committed a number of such offences would not be granted a visa.

29. The Tribunal also concludes that of the designated “other considerations” only the impact on family members is relevant. As indicated above, the only family member of relevance here is the applicant’s de facto partner, Mr Webster and his evidence is heavily discounted for the reasons mentioned above. In addition, even if the Tribunal were to accept his evidence and conclude that the impact on family members was in favor of the grant of the visa, this consideration would be heavily outweighed by all the primary considerations which in any event carry greater weight than the other considerations: Direction 65 paragraph 8(4).  

30. For the above reasons, the Tribunal concludes that the Minister’s decision to refuse the applicant a visa is the correct and preferable decision.

    DECISION

31. The decision of the respondent of 13 October 2016 to refuse to grant the applicant a Partner visa under s 501(1) is affirmed.

I certify that the preceding 95 (ninety-five) paragraphs are a true copy of the reasons for the decision herein of Professor R Deutsch, Deputy President

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

Associate

Dated: 4 January 2017

Dates of hearing:	19 and 20 December 2016
Applicant:	In person
Solicitors for the Respondent:	Mr K Eskerie, Sparke Helmore Lawyers