DJYZ and Minister for Immigration and Citizenship
[2013] AATA 218
[2013] AATA 218
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0280
Re
DJYZ
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 11 April 2013 Place Melbourne The Tribunal affirms the decision under review.
................................[sgd]......................................
Regina Perton, Member
MIGRATION - cancellation of visa – conviction for sexual offence - character test - exercise of discretion – decision affirmed
Migration Act 1958 ss 499(1), 499(2A), 501(2), 501(6), 501(7)
Direction [No. 55] – Visa Refusal and Cancellation under s 501
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198
Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
REASONS FOR DECISION
Regina Perton, Member
11 April 2013
DJYZ is 30 years old. He visited Australia four times on visitor visas between April 2007 and September 2009 before arriving as a permanent resident on a Class VE Subclass 176 (Skilled – Sponsored) visa on 14 January 2012. On 9 January 2013 a delegate of the Minister for Immigration and Citizenship (the Minister) found that DJYZ did not pass the character test due to his criminal record in Australia and decided to exercise the discretion to cancel his visa. DJYZ seeks review of the decision.
LEGISLATIVE BACKGROUND
Under s 501(2) of the Migration Act 1958 (the Act) the Minister may cancel a visa granted to a person if he reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that the person passes the character test (s 501(2)(b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds in s 501(6)(a)-(d) is met. Section 501(6)(a) of the Act provides:
(a) the person has a substantial criminal record (as defined by subsection (7));
…
Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Under s 499(1) of the Act the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply.
On 25 July 2012 the Minister, exercising powers under s 499(1) of the Act, issued Direction [no.55] - Visa Refusal and Cancellation under s 501 (Direction 55) which came into operation on 1 September 2012. The Direction provides guidance to decision-makers in making decisions to refuse or cancel a visa under s 501 of the Act, including the exercise of the discretion to decide whether a non-citizen should be permitted to enter or remain in Australia in circumstances where that person does not pass the character test.
Paragraph 7 of Direction 55 sets out how to exercise the discretion and paragraph 8 requires decision-makers to take into account the primary and other considerations relevant to the individual case. Paragraph 8(4) of Direction 55 states that primary considerations should generally be given greater weight than the other considerations.
ISSUES
The issues before the Tribunal are:
·Does DJYZ pass the character test? If not:
·How do the primary considerations and other considerations apply to DJYZ?
·Should the discretion to cancel the visa be exercised?
DOES DJYZ PASS THE CHARACTER TEST?
On 4 October 2012 DJYZ was convicted in the County Court of Victoria of use carriage service to procure person under 16 years of age for sexual activity. He pleaded guilty and was sentenced to two years’ imprisonment to be released after serving four months imprisonment upon entering into a recognisance of $1,000 to be of good behaviour for two years. He was also to undertake a sex offenders’ course and to be on the register of sex offenders for eight years.
DJYZ is currently in immigration detention. DJYZ conceded, and the Tribunal finds, that he does not pass the character test.
HOW DO THE PRIMARY AND SECONDARY CONSIDERATIONS APPLY TO DJYZ?
Assessment of primary considerations
The four primary considerations are set out in paragraph 9(1) of Direction 55:
(a) Protection of the Australian community from criminal or other serious conduct;
(b) The strength, duration and nature of the person's ties to Australia;
(c) The best interests of minor children in Australia; and
(d) Whether Australia has international non-refoulement obligations to the person.
(a) Protection of the Australian community from criminal or other serious conduct
Paragraph 9.1(1) of Direction 55 states that, when considering the protection of the Australian community, decision-makers should have regard to the principle that:
... the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 9.1(2) states that decision-makers should also give consideration to:
a) The nature and seriousness of the person's conduct to date; and
b) The risk to the Australian community should the person commit further offences or engage in other serious conduct.
a) The nature and seriousness of DJYZ's conduct
Paragraph 9.1.1(1) of Direction 55 lists a number of factors that must be taken into account in considering the nature and seriousness of the criminal offending or other conduct to date:
(a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously.
DJYZ’s offence relates to a sexual crime and is therefore to be viewed very seriously.
(b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
DJYZ believed he was communicating with a minor over the internet although he was in fact in contact with a police officer. However his actions and the suggestions he made were on the basis of his belief that he was communicating with a 14 year old girl. His crime is therefore considered serious.
(c) Where the person is in Australia, that a crime committed while the person was in immigration detention; during an escape from immigration detention; or after the person escaped from immigration detention, but before the person was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
DJYZ’s offence was committed before he was in immigration detention. There is no indication that he has committed a crime while in immigration detention. Therefore this criterion is not relevant.
(d) The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s501(6)(b) or (d), or is not of good character under s501(6)(c) is considered to be serious;
The conduct by DJYZ is considered to be serious.
(e) The sentences imposed by the courts for a crime or crimes;
DJYZ was sentenced to two years in prison and required to serve a four month period in prison before being eligible for parole. He was then required to sign a recognisance and pay $1,000. He has been placed on the sex offenders’ register for eight years.
(f) The frequency of the person's offending and whether there is any trend of increasing seriousness;
The commission of DJYZ’s offence occurred in a period of around two weeks. The Australian and overseas records do not reveal any other breaches of the law apart from the conviction for which he was sentenced in October 2012.
(g) The cumulative effect of repeated offending;
There is no evidence of offences other than the one for which DJYZ was convicted in October 2012.
(h) Whether the person has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
There is no material to suggest that DJYZ provided false or misleading information to the Department.
(i) Whether the person 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 person's migration status (noting that the absence of a warning could not be considered to be in the person's favour);
DJYZ had not received a warning prior to the issue of the Notice of Intention to Consider Cancellation (NOICC) which he received in relation to the matter before the Tribunal. There is no evidence that DJYZ has reoffended after receiving that notice.
(j) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
DJYZ’s offence was committed in Australia. There is no record of any offence in another country.
Conclusion regarding the seriousness of the offences
DJYZ believed he was communicating with a 14 year old girl. While doing so, he made suggestive comments and referred her to pornographic websites. He used a webcam inappropriately. He made arrangements to meet her with what appeared to be an expectation of a sexual encounter. DJYZ turned up at the designated place and time. While DJYZ told the Tribunal that he did not know what would happen at the meeting and that he just wanted to meet her, the content of his communications prior to that proposed meeting suggested otherwise.
Given the content of the Minister’s direction and the evidence before it, the Tribunal concludes that the offence committed by DJYZ is serious.
b) The risk to the Australian community should DJYZ commit further offences or engage in other serious conduct
Paragraph 9.1.2 of Direction 55 states:
(1) In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, 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. 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. In making this assessment, decision-makers must have regard to, cumulatively:
(a) The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct;
The respondent’s solicitor, in his written submission to the Tribunal stated:
41. In determining whether the applicant represents an unacceptable risk of harm to the community, tolerance for any risk of future harm should decrease as the seriousness of the potential harm increases (para 9.1.2(1) of the Direction). The conduct of the applicant in this case, procuring a person he believed to be a 14 year old girl over the internet for the purposes of his own sexual gratification, and the harm that would result from a minor being sexually exploited if the conduct was repeated, is so serious that any risk that it would be repeated is unacceptable (para 9.1.2(1) of the Direction).
Taking into account the nature of his crime, the Tribunal concurs with the respondent and finds that there would be significant harm to individuals or the Australian community should DJYZ engage in further criminal conduct similar to that for which he was convicted.
(b) The likelihood of the person engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the person reoffending; 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).
In his evidence to the Tribunal, DJYZ stated that he is ashamed of his actions and is sure that he would never act in a similar fashion again. He now realises how inappropriate his actions were. He believes that his actions arose through a combination of boredom and stress.
DJYZ said that he had visited Australia on four occasions prior to being accepted for skilled permanent migration. His technical training and skills were accepted as being equivalent to Australian standards for the trade in which he is engaged. He came to Australia before his wife and daughter to organise employment and accommodation for the family. He initially stayed with an uncle who lived in a shared household.
One of DJYZ’s first purchases in Australia was a laptop computer through which he searched for work and a property to rent. He was also in contact with his wife through Skype. In his home country, DJYZ did not have his own computer but used his wife’s computer. He did not have a computer for work in his home country as his job did not require it.
DJYZ said that he was feeling bored and lonely during the day and looked for people to chat with on-line. On 9 February 2012, he came across a website entitled teenchat.com where he received a response to his message from someone who appeared to be a 14 year old girl. DJYZ initially indicated that he was twice her age but then obtained contact details so he could contact ‘her’ through another medium. He proceeded to have a sexually explicit conversation with her during which he displayed part of his anatomy on a webcam. DJYZ also directed her to a pornographic website.
DJYZ had subsequent on-line conversations with the girl in which he asked to meet her, those requests were refused. On 22 February 2012 he had another on-line conversation where he initially suggested that they terminate the relationship because of their age difference. However this time they decided to meet up on 27 February 2012 at an agreed location. DJYZ had in the meantime suggested she visit another sexually explicit website of an exhibitionist nature. Upon arriving at the designated meeting place, DJYZ was arrested by waiting police and charged. He subsequently pleaded guilty and was sentenced on 4 October 2012.
The County Court judge dealing with the matter had before him a report by Dr Kylie Thompson, psychologist, dated 27 September 2012. The report had been commissioned by DJYZ’s counsel. In her Summary and Opinion, Dr Thompson stated amongst other things:
… He reported feeling significant stress and pressure to obtain housing and employment and stress as a result of conflict in his marital relationship. He experienced his situation as lonely and that whilst he had his brother nearby and was living with his uncle, he felt disconnected from them and did not socialise with them. The internet became an opportunity for social contacts to be established and in this context he reported that he encountered who he believed was a 14 year old girl. He denied seeking out this age group despite the website being teenchat.com, and said he was looking for people in Australia and was hoping to form an online friendship with an older (i.e. 18 or 19 year old) person from that chat site. He minimised his sexual initiation of behaviour and emphatically maintained that his sexual communications were only intended to be in an online environment. Despite his graphical sexual messages and instructions, and organising to meet with who he believed was the 14-year-old girl, he denied any intention of meeting for the purpose of sexual contact. He offered no explanation for his request that she attend the meeting without wearing underwear.
…[DJYZ] does hold several attitudes that are of concern in relation to sexual offending against young persons and his defence displayed grooming behaviour. His offence occurred in the context of negative mood states (stress, loneliness, boredom] and marital problems, and he had inadequate stress management and coping skills. He minimised his offending behaviour, most likely in an attempt to present himself more favourably and thereby reduce adverse consequences to himself, as well is to reduce the high levels of shame he feels for his offence. ….[DJYZ] denied being sexually attracted to adolescent girls and to qualify as having sexual deviance a stable pattern of inappropriate sexual arousal is required rather than an isolated event. Nonetheless, due to the nature of this offence, the presence of sexual deviance requires ongoing assessment.
Importantly, there are a number of positive/protective factors with this case. …[DJYZ] does not associated with pro-criminal peers or those that support sexual contact between adults and children, nor has he an antisocial personality or problems with substance abuse. He has a history of being able to apply himself to his studies in employment and has experienced his contact with the law is extremely distressing, which is likely to have powerful deterrent effect on him; he has the cognitive capacity to participate in and benefit from treatment. Overall given the combination of risk and protective factors,…[DJYZ’s] risk of reoffending in the same manner is considered to fall in the Moderate/Low category of risk. Furthermore,…[DJYZ’s] risk of reoffending would likely be lowered by psychological treatment specifically focused on: developing his stress management and coping skills; enhancing his mental health; enhancing his intimate relationship skills; challenging attitudes that supports sexualisation of children/adolescence; challenging his minimisation of his sexual behaviour within the offence. …[DJYZ] is considered a good candidate for rehabilitation.
…
The offence was committed before DJYZ’s wife came to Australia. He did not tell her about the offence until extremely late in the process. She gave evidence to the Tribunal that she was told about her husband’s offending and imminent sentencing in early October 2012, almost seven months after she arrived in Australia and more than three months after a Magistrates Court committal hearing at which her husband pleaded guilty. It was her brother-in-law who told DJYZ’s wife that her husband was in custody (he had been out on bail) and had plead guilty to the offence as well as informing her of its nature.
The County Court Judge’s sentencing comments included the following:
13. Remarkably, you had not told your wife that you had been charged before I remanded you in custody pending sentence. As I remarked in court, it is apparent that you have still not come to terms with the consequences that must flow from your offending. While I appreciate that your reluctance to tell your wife about your offending arises from your embarrassment, and your concerns as to how she may have respond to knowing about your conduct, it also signifies a “head in the sand” response to your predicament.
14. In my view, although you express appropriate shame and regret for your offending your level of insight is limited. During an interview with Dr Thomson you stated that adult sexual contact with children and adolescents was wrong. However, in the course of a self-reporting questionnaire you agree to the proposition that, “Some people sexually assaulted children because they really thought the child would enjoy how it felt”. Dr Thomson considers that your risk of reoffending in the same manner falls in the moderate/low category of risk. I consider that you would benefit from participation in sex offender programs and accordingly, I ordered that you be assessed as to your eligibility whilst remanded in custody and pending sentence.
15. The preliminary assessment was conducted on 3 October 2012 and you were assessed as falling within the moderate-low risk category of sexual reoffending and is suitable for treatment programs conducted by Corrections Victoria.
16. The Crown submitted that an immediate term of imprisonment, coupled with an order requiring treatment as a condition of your release upon recognisance was appropriate. In my view, that submission was well founded and was not the subject of any contrary contention. I consider that your moral culpability is high and that your contact does demonstrate your willingness to exploit and corrupt a 14 year old schoolgirl who told you that she was sexually inexperienced. You were more than twice the age of the girl whom you believed you were communicating with. Both general and, to a lesser extent specific deterrence have application to the sentence to be imposed upon you
17. I have been provided with a number of cases which details sentence is imposed for similar offending. It is not necessary to repeat the principles that are elaborated in those cases and to which I have been referred, save to emphasise that the legislation is intended to protect children from people, such as yourself, who seeks sexual gratification at the expense of a minor.
…
Following the sentencing, Dr Maxine Cleghorn, Forensic Psychologist, provided a Risk Summary report dated 25 October 2012 for the Sex Offenders Program run by Corrections Victoria. Amongst other things, she described the outcome of an assessment undertaken by DJYZ, based on the Static 99 sex offenders actuarially based risk assessment tool. The test had been administered on 3 October 2012 prior to DJYZ’s sentencing. The test assessed DJYZ as falling into the Moderate-Low risk category of sexual recidivism. She commented that DJYZ’s score was the result of information that the conviction was for a non-contact sexual offence with an unrelated victim who was a stranger. She went on :
… Individuals with these characteristics, on average, sexually re-offend at 12% over five years, at 14% over ten years and 19% over 15 years. The rate for any violent recidivism (including sexual) for individuals with these characteristics is, on average, 22% over five years, at 27% over ten years and 34% over 15 years.
DJYZ did not participate in a sex offender’s program because Corrections Victoria was unable to arrange for his attendance during his period of incarceration. It had been planned that DJYZ attend such a program after his release from prison but he has not been able to do so due to being detained in immigration detention. DJYZ said that he was happy to participate in such a program, indeed would welcome doing so.
DJYZ has a strong history of employment in his home country. He was offered two jobs within a short period of his arrival in Australia and accepted the second offer. He worked for that company from shortly after being charged and released in late February 2012 until early October 2012. He told the Tribunal that the company had been willing for him to work for them again after his release from prison. His skills are in demand in Australia.
In oral evidence DJYZ was asked how he feels about his offending. DJYZ said that he still feels very ashamed of what he did. He said that he appreciated the support he has from his family and takes life more seriously than he had previously. He stated that his family has suffered a lot because of his actions. DJYZ said he had not appreciated how risky and inappropriate his behaviour was at the time of his offence but he now realizes how wrong it was. He stated that he believes that there is no risk of him reoffending. His wife made the same comment.
Qualified professionals working within the criminal justice system have assessed DJYZ as a Moderate-Low risk of recidivism, taking into account objective testing as well as protective factors he possesses. Some answers provided by DJYZ in testing had created a ‘cause for concern’. DJYZ said that he had not realised that the questions were not about him and had tailored his responses to questions accordingly.
Mr Eddy Kleynhans, psychologist, provided a report to the Tribunal dated 25 March 2013 and gave oral evidence. He described the impact of the offence on DJYZ and his family following a personal interview at the detention centre with DJYZ and telephone interview with DJYZ's wife. Mr Kleynhans expressed the view that DJYZ was lonely and suffering from depression at the time of the offence. He stated that there were good prospects of reducing the risk of recidivism on DJYZ’s part if he had appropriate psychological treatment and undertook the sex offenders’ course offered by Corrections Victoria. He said that other factors in favour of DJYZ’s rehabilitation were his family support, his history of being in steady employment and his level of education. Under cross-examination, Mr Kleynhans conceded that he was not aware of any literature stating that someone with a job was less likely to be a sex offender.
In Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81 Davies J held that even if the risk of recidivism is not high, it will strongly support deportation (or visa cancellation) when recidivism, if it does occur, may cause great harm. In Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198 the Full Court of the Federal Court held that a real risk of recidivism is one that is not far-fetched or fanciful, and can include a low or minimal risk.
The Minister’s solicitor, Mr Brown, submitted that, in this case, given the nature of the crime, no risk was acceptable. He pointed to paragraph 6.3(3) of the Direction in which it states:
(3) In some circumstances, criminal offending 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.
On the basis of all the material before the Tribunal, the Tribunal finds that there is a risk that DJYZ will reoffend notwithstanding that he now clearly understands the seriousness of his offending and the consequences for himself and his family. Given the seriousness of the offence and the risk of recidivism, even it is moderate to low, the Tribunal concludes that the first primary consideration weighs strongly in favour of cancellation of the visa.
(b) The strength, duration and nature of the person's ties to Australia;
Paragraph 9.2.1 of Direction 55 states that the decision-maker must have regard to the following:
a) How long the person has resided in Australia, including whether the person arrived as a young child, noting that:
i. Less weight should be given where the person began offending soon after arriving in Australia; and
ii. More weight should be given to time the person has spent contributing positively to the Australian community.
DJYZ had been a permanent resident of Australia for less than a month when he committed the offence. He visited Australia four times between 2007 and 2009. DJYZ presented a number of references from members of a church which he and his wife have attended since settling in Australia. He also pointed to the employment skills he and his wife have brought to Australia.
Given the short time he was in Australia before offending, DJYZ has had little time to contribute to the Australian community.
Consideration of the first aspect of the second primary factor weighs heavily in favour of cancellation of the visa.
(b) The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
DJYZ has two brothers. His elder brother is an Australian citizen who sponsored DJYZ’s migration to Australia. His younger brother is in Australia as a student with temporary residence. DJYZ’s uncle, his late mother’s brother, is a temporary resident who has applied for, and is awaiting, permanent residence.
DJYZ’s wife and daughter are now Australian permanent residents having arrived in Australia in March 2012. The Tribunal was informed that her husband’s visa cancellation does not impact on his wife’s or his daughter’s permanent residence status. His wife told the Tribunal that if her husband is required to return to his home country, she and their daughter will remain in Australia.
DJYZ was working in Australia for several months before imprisonment for his offence. He has joined a church community in Australia where a number of members are aware of his offence and remain supportive of him.
The Tribunal takes into account that DJYZ has had a connection with Australia for more than five years with his brother being an Australian citizen and with DJYZ having visited on four occasions prior to DJYZ obtaining permanent residence. DJYZ’s wife and daughter are permanent residents although they have only been such for a year. DJYZ therefore has links with Australian citizens and permanent residents.
This second part of the primary consideration weighs slightly against cancellation of the visa. As indicated earlier, the consideration of the first part of the second primary factor weighs heavily in favour of cancellation while the second part of that factor weighs slightly against cancellation. Overall, the Tribunal finds that the second primary factor weighs in favour of cancellation.
(c) The best interests of minor children in Australia
DJYZ has one daughter aged almost three years. His daughter arrived in Australia with his wife after the commission of the offence.
She is young and has had limited exposure to others outside her parents, her maternal uncle and the children and workers at the crèche she attends. Her parents gave evidence that she now speaks mainly in English, given that is the language spoken at her crèche. Her parents both speak English but it is not their first language.
DJYZ and his wife both gave evidence of the close bond between father and daughter. Prior to his incarceration, it was DJYZ who undertook much of the primary care of the child. Now that he is in immigration detention, his wife and child regularly visit. The Tribunal heard evidence of his daughter’s distress at leaving her father behind when she visits.
DJYZ’s wife told the Tribunal that she intends on remaining in Australia with their daughter even if her husband is required to leave. She believes that the opportunities available to DJYZ’s daughter in Australia are far superior to those in their home country. She stated that whilst education and health services are available to all there, they are not to the same standard as that of Australia.
DJYZ’s wife expressed concern about difficulties the family unit would face in their home country as people could be aware of the nature of her husband’s offending. The Tribunal heard that the couple had already faced difficulties in their home country before coming to Australia because of their different cultural and religious backgrounds. Her husband also borrowed money to finance their resettlement in Australia. Both DJYZ and she believe it would be difficult for him to find employment there given the circumstances of his return. As a young baby, DJYZ's daughter was cared for by her widowed maternal grandmother in their home country. However, others in DJYZ's wife's family are antagonistic towards DJYZ because of their culturally distinct backgrounds. Furthermore, the relationship between DJYZ and his father has deteriorated due to his father having re-partnered not long after DJYZ’s mother’s death in around 2008.
If DJYZ is required to leave Australia permanently, he would only be able to see his daughter in person if she is brought to their home country or elsewhere by his wife. His communication with her would have to be by electronic means only. He would not be able to participate in her day to day life or care for her as he was doing prior to his incarceration. DJYZ’s wife is currently working full-time to pay for accommodation and living expenses for herself and her daughter. She is required to leave her daughter at a crèche while she works. Her job requires her to sometimes work long hours and this causes difficulties for herself and her daughter. Her brother in law and his wife can only provide limited assistance. DJYZ and his wife are not in the financial position to regularly travel to their home country for their daughter to be with her father if his visa is cancelled.
It is clearly in DJYZ’s daughter’s best interest to have her father remain in the same country as her. The Tribunal finds that this primary consideration weighs strongly against cancellation of the visa.
(d) Whether Australia has international non-refoulement obligations to the person.
Paragraph 9.4(1) of Direction 55 states:
In cases where claims which may give rise to international non-refoulement obligations [relating to returning persons who may face risks of a type set out in various international treaties] are raised by the person or are clear from the facts of the case, they must be given consideration if the person is in Australia.
DJYZ told the Tribunal of possible discrimination he might face if he is required to return to his home country. He was concerned about his ability to find work and to repay an outstanding loan he took out in his home country to finance his resettlement in Australia.
However, DJYZ did not make any claims which require assessment in relation to Australia's international non-refoulement obligations, nor are any claims apparent from the material available to the Tribunal. Consequently the Tribunal finds that this primary consideration weighs neither for nor against cancellation of the visa.
Assessment of other considerations
Paragraph 10(1) of Direction 55 provides a list of non-exhaustive other considerations that must be taken into account where relevant:
(a) Effect of cancellation of the person's visa on the person's immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;
DJYZ’s brother is an Australian citizen. He and DJYZ appear close and he has been a major support to DJYZ since his offence. He also sponsored DJYZ’s migration to Australia. He sat through the hearing. But for stringent requirements in the Act in relation to presentation of documentary evidence at least two working days before the hearing, he would have given evidence in support of his brother.
DJYZ’s wife, now a permanent resident, intends to remain in Australia with their daughter even if her husband is required to leave Australia. As indicated earlier in these Reasons for Decision, there will be a major impact on his daughter if her father’s visa is cancelled. The permanent separation of husband and wife, if DJYZ’s wife remains steadfast in her expressed desire to remain in Australia, is likely to end their marriage. The Tribunal has heard evidence of some shakiness in the relationship from time to time but nonetheless, his wife has remained supportive of DJYZ despite the difficult circumstances and the challenges she faces because of his offence. Raising their daughter without DJYZ’s presence will impact heavily on his wife.
The Tribunal concludes that cancellation of DJYZ’s visa would have an adverse effect on his daughter and wife as well as on his older brother.
(b) Impact on Australian business interests
DJYZ has recognised skills that appear to be in relatively short supply in Australia. DJYZ was quickly able to obtain employment after his arrival in Australia as a permanent resident and worked for the one company between February 2012 and his incarceration. For reasons outside his control, DJYZ has not worked since October 2012. DJYZ was an employee without a financial interest in the business for which he worked.
(c) Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person's criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;
There was no actual victim in this matter. However, DJYZ thought he was communicating with a 14 year old girl and had she been an actual person, the impact would have been profound. Were he to reoffend, the consequences would be serious. The Tribunal is not in a position to comment on the impact on any particular member of the community.
(d) The extent of any impediments that the person 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:
(i)The person's age and health;
(ii)Whether there are substantial language or cultural barriers; and
(iii)Any social, medical and/or economic support available to them in that country.
DJYZ is relatively young with a trade qualifications and relevant experience. He was working in his home country for several years and in Australia for several months. He migrated to Australia in his late twenties having spent almost all his life in his home country. He speaks the languages and understands the culture of his home country.
DJYZ’s father and some other relatives are in his home country although he told the Tribunal he is estranged from his father due to his father’s choice of partner. He said that he is not close to members of his late mother’s family nor to others in his father’s family who remain in the home country.
DJYZ expressed his concern about servicing an outstanding loan he took out before coming to Australia. The income he can earn in Australia is significantly higher than that paid for the equivalent work in his home country. He said that he and his wife had sold up everything when migrating on the understanding that they would remain in Australia permanently. DJYZ stated that he does not know if he will be able to get a job if required to return to his home country as the opportunities are limited.
DJYZ also stated that there had been a newspaper article about his offence published in his home country following his conviction. The Tribunal was presented with an electronic printout of a newspaper article in its original language with which the Tribunal has some familiarity. DJYZ advised the Tribunal that the article named him although the Tribunal did not see his name mentioned in the article either in the printed version or on searching the internet. However his name has been mentioned in the Australian press. The overseas article, whether it included his name or not, does describe his age, the nature of his work, the nature of the offence and that it took place in Australia. It is possible some people will remember the article and identify DJYZ as the person involved.
DJYZ is reported as having suffered from depression following his mother’s death in 2008 and in 2012 after he was charged with his offences. It is quite possible that having to leave Australia and his daughter will impact on his mental health. The Tribunal had evidence before it that his home country has a universal health system so he is able to access medical treatment there.
On balance, the Tribunal finds that while DJYZ would face some impediments in re-establishing himself in his home country and he finds the prospect unwelcome, he should nonetheless be able to do so within a reasonable period.
Conclusion regarding other considerations
DJYZ will face some difficulties upon returning to his home country, primarily due to his wife deciding that she and their daughter will not return with him to their shared home country. There is also the outstanding loan and the need to find accommodation and employment. However, it is only just over a year since DJYZ left his home country to migrate to Australia so the task of re-establishing himself, whilst unwelcome, appears achievable.
The Tribunal concludes that the other considerations weigh against cancellation of the visa.
SHOULD THE DISCRETION TO CANCEL THE VISA BE EXERCISED?
The Tribunal has concluded that the first primary consideration concerning protection of the Australian community weighs strongly in favour of cancellation. The second primary consideration concerning DJYZ’s ties to Australia also weighs in favour of cancellation. The third primary consideration weighs strongly against cancellation. The fourth primary consideration does not have any practical application.
The Tribunal has concluded that the other (not primary) considerations weigh against cancellation, and the Tribunal takes into account that, generally, other considerations should be given less weight than that given to primary considerations.
This case requires the weighing up of a number of factors in favour of and against the respondent exercising its discretion to cancel DJYZ’s visa. The Direction makes it clear that an offence such as that committed by DJYZ is one that would normally warrant cancellation of a visa and that any risk of recidivism is unacceptable when such an offence is involved. On the other hand, cancellation of the visa is likely to have a profound impact on DJYZ’s daughter given her mother’s indication that she will not return to their home country even if her husband is forced to do so. DJYZ’s wife believes the opportunities and lifestyle for her daughter and herself here are preferable to their original home country, even if her daughter does not grow up with her father.
The Tribunal views the seriousness of the offence committed and its timing so soon after DJYZ’s arrival as well as some risk of recidivism as outweighing the other considerations. After considering the primary considerations and the other considerations the Tribunal finds that the factors in favour of cancellation outweigh the factors against so the discretion not to cancel the visa should not be exercised.
DECISION
The Tribunal affirms the decision under review.
84. I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for the decision of Regina Perton, Member.
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Assistant
Dated 11 April 2013
Date of hearing 3 & 4 April 2013 Agent for the Applicant Mr F Fazzito Solicitor for the Respondent Mr D Brown Solicitors for the Respondent Australian Government Solicitor
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