Dougherty and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 8
•12 January 2021
Dougherty and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 8 (12 January 2021)
Division:GENERAL DIVISION
File Number: 2020/3994
Re:Pattraporn Dougherty
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:12 January 2021
Place:Melbourne
The Tribunal affirms the decision under review.
.............................[sgd]...........................................
Senior Member A. Nikolic AM CSC
MIGRATION – Visa refusal – citizen of Thailand – Prospective Marriage (Temporary) (Class TO) visa – foreign convictions – possession of unregistered pistol and ammunition in a public place – failure to declare foreign criminal offending – failure to pass character test – whether discretion to refuse visa should be exercised – Ministerial Direction No. 79 applied – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Firearms Act 1996 (Vic)Migration Act 1958 (Cth)Migration Regulations 1994 (Cth)
CASES
Ali and Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
FYBR v Minister for Home Affairs [2020] HCA 056
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for Immigration & Border Protection [2018] FCA 1803
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Khazaal v R [2011] NSWCCA 129
Khazaal v R (No. 2) (2013) 304 ALR 345
Maxwell v R [1996] HCA 46; 184 CLR 501
Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135
Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197
Minister for Immigration and Multicultural Affairs v Ali (2000) 62 ALD 673
Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213
Petrovic and Minister for Immigration and Multicultural Affairs [2000] AATA 1135
PQSM v Minister for Home Affairs [2019] FCA 1540
R v Postiglione (1991) 24 NSWLR 585
Re Du Pont v Minister for Immigration and Ethnic Affairs [1983] AATA 180
Re Leha and Minister for Immigration and Indigenous Affairs [2000] AATA 1054
Re Milnar v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771
Secretary to the Department of Justice and Regulation v LLF (a Pseudonym) [2018] VSCA 155
Shmarakova and Minister for Immigration, Multicultural and Indigenous Affairs [2003] AATA 976
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705Weston v R (2015) 48 VR 413; [2015] VSCA 354
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Victoria’s Sentencing Advisory Council on Current Sentencing Practices for Firearms Offences (May 2019)
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
12 January 2021
INTRODUCTION
The Applicant, Ms Pattraporn Dougherty, is the visa sponsor for a Prospective Marriage (Temporary) (Class TO) visa (the visa). She seeks review of a decision to refuse the visa applicant, her fiancé Mr Teerapong Klaithin, a visa under s 501(1) of the Migration Act 1958 (Cth) (the Act).[1]
[1] Exhibit R1, 9-11.
The hearing was held in Melbourne on 1 October 2020 by audio-visual link, with the assistance of an interpreter in the Thai language. The Applicant was represented by Ms Germov of counsel, instructed by MP Migration Law. The Respondent was represented by Mr Downie of Minter Ellison Lawyers.
For the following reasons, the Tribunal affirms the decision under review.
LEGISLATIVE FRAMEWORK
Taken together, s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and s 500(1)(b) of the Act are the sources of the Tribunal’s jurisdiction to review visa refusal decisions.
Section 501(1) of the Act is one of several discrete powers conferred under s 501. It provides for refusal to grant a visa if an applicant does not satisfy the Minister that they pass the character test.
The character test is defined in s 501(6) of the Act. It refers to a range of character matters that the Minister or their delegate may have regard to in deciding whether to refuse, cancel, or revoke the mandatory cancellation of a visa. These include if the person has a substantial criminal record as defined at s 501(7) of the Act.
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record, including if they have been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more: s 501(7)(d).
If an applicant fails the character test, the Tribunal must then determine whether the discretion under section 501(1) of the Act to refuse the visa should be exercised.[2] Guidance in exercising the discretion is found in Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the Direction).
[2] PQSM v Minister for Home Affairs [2019] FCA 1540, [22].
Direction No. 79
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) mandates that the Tribunal must comply with the Direction.[3]
[3] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, at [9] per Collier, Flick and Perry JJ.
The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under sections 501 and 501CA of the Act. Clause 6.1 of the Direction sets out several objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’ Clause 6.1(2) states:
…
(2) …Where the discretion to refuse to grant…a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse…the visa given the specific circumstances of the case.
By way of general guidance, cl 6.2 of the Direction provides:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) …
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse…a non-citizen’s visa under section 501… The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B…of this Direction.
The principles are reproduced below and constitute a framework within which decision-makers apply relevant considerations:
6.3 Principles
(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 as 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.
Clause 7(1)(a) of the Direction provides that in cases relating to visa refusal, decision-makers must take into account the considerations in Part B of the Direction. If an applicant fails the character test, the following primary considerations at cl 11(1) of the Direction must be applied to the specific circumstances of the case:
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.
Clause 12(1) of the Direction requires that other considerations to be taken into account include but are not limited to:
a. International non-refoulement obligations;
b. Impact on family members;
c. Impact on victims; and
d. Impact on Australia’s business interests.
Clause 8(2) of the Direction states that in applying the primary and other considerations, ‘information and evidence from independent and authoritative sources should be given appropriate weight.’
Clause 8(3) of the Direction states that ‘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.’
Clause 8(4) states that ‘Primary considerations should generally be given greater weight than the other considerations.’
Clause 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 at [57] and [78], in relation to a previous equivalent ministerial direction:
[57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
…
[78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
BACKGROUND
The visa applicant, Mr Klaithin, is a citizen of Thailand and currently 36 years of age. He was convicted of two offences in Thailand in July 2011, namely being found in possession of ammunition and taking an unregistered pistol into a public area. Mr Klaithin was sentenced to six months imprisonment on each charge, resulting in a total effective sentence of 12 months imprisonment.[4] He was released from prison under a King’s Pardon on 8 December 2011 after serving five months of his sentence.[5]
[4] Exhibit R1, 20-22.
[5] Ibid, 22; 109 [10].
Soon after being released from prison, Mr Klaithin met and married his first wife.[6] In December 2013 he accompanied her to Australia as a dependant on her Student Visa.[7] Mr Klaithin said he never disclosed his criminal history to his wife,[8] and was not asked about it by the travel agent who completed his visa application. He claimed that his wife completed his Incoming Passenger Card (IPC) on arrival in Australia, which did not disclose his criminal convictions.[9]
[6] Ibid, 109 [11].
[7] Ibid, 26.
[8] Ibid, 82 [2.2].
[9] Ibid, 25.
Mr Klaithin undertook work in several Australian states as a fruit and vegetable picker.[10] He said the relationship with his wife broke down soon after they arrived in Australia and he learned in January 2015 that she had an Australian boyfriend and wanted a divorce.[11] Mr Klaithin said they divorced in Australia on 17 October 2016 under Thai law, with divorce formalities concluded at a Thai consulate.[12] He claimed that he and his wife had no further contact after the divorce,[13] and he continued working in Australia until his visa expired in August 2017.
[10] Ibid, 110 [13].
[11] Ibid, 53.
[12] Exhibit A1, 4 [20].
[13] Exhibit R1, [21].
In January 2016 while working as a fruit picker, Mr Klaithin met Ms Dougherty after renting a room at a property she lived at with her then husband.[14] They soon became friends. The evidence about when Mr Klaithin and Ms Dougherty developed a romantic relationship is unclear. In his June 2020 Personal Circumstances Form (2020 PCF), Mr Klaithin stated that Ms Dougherty’s ex-husband did not like them being so close, causing Mr Klaithin to move out. He claimed that his relationship with Ms Dougherty commenced in March 2016.[15] In his oral evidence, however, Mr Klaithin said he worked interstate between April and December 2016, after which he started living with Ms Dougherty and her children. Mr Klaithin and Ms Dougherty subsequently became engaged on 24 June 2017, which was prior to Ms Dougherty’s divorce,[16] and approximately two months before Mr Klaithin’s visa expired and he returned to Thailand.[17] Mr Klaithin stated that after returning to Thailand, Ms Dougherty visited him for a three-week period in December 2017 with her parents and children.[18] She also visited him by herself in January 2019.
[14] Ibid 50; Exhibit A1, 2 [5]; Exhibit A2, 4 [20].
[15] Exhibit R1,50; 91.
[16] Ibid, 110 [15].
[17] Ibid, 26.
[18] Ibid, 50.
On 6 February 2018 Mr Klaithin applied for the visa based on his relationship with Ms Dougherty, in which he disclosed his criminal history in Thailand for the first time.[19] A letter from immigration officials dated 27 April 2018 invited him to comment on ‘adverse information received,’ namely his failure to declare his criminal convictions in his 2013 Student Visa application.[20] Mr Klaithin responded in a statement dated 22 May 2018.[21]
[19] Ibid, 56.
[20] Attachment to Exhibit A2.
[21] Exhibit R1, 101-107.
On 8 May 2020 the Respondent sent Mr Klaithin a Notice of Intention to Consider Refusal (NOICR) of his visa application, referring to his criminal history in Thailand and failure to disclose it when first entering Australia in 2013.[22] Mr Klaithin responded to the NOICR on 5 June 2020, in which he denied his criminal offending.[23]
[22] Ibid, 27-30.
[23] Ibid, 79-150.
On 30 June 2020 the Respondent refused the visa under s 501(1) of the Act.[24] On 3 July 2020 Ms Dougherty asked the Tribunal to review the refusal decision.[25]
[24] Ibid, 9-11.
[25] Ibid, 3-8.
DOES MR KLAITHIN PASS THE CHARACTER TEST?
By virtue of his criminal convictions in Thailand and pursuant to s 501(6)(a) and s 501(7)(d) of the Act, Mr Klaithin has a substantial criminal record. The Tribunal finds he does not pass the character test.
ISSUE TO BE RESOLVED
The issue to be determined is whether the discretion under s 501(1) of the Act to refuse to grant the visa should be exercised.
EVIDENCE BEFORE THE TRIBUNAL
Documents
The following documents were taken into evidence:
(a)Documents lodged by the Respondent titled ‘Section 501 G Documents’ numbering 206 pages;[26]
(b)A bundle of documents collectively numbering 14 pages, consisting of a statement from Ms Dougherty dated 29 August 2020, attached to which is her Certificate of Citizenship and consent orders issued by the Magistrates’ Court of Victoria on 26 March 2018. The latter specifies equal parental care of the children with her ex-husband and details the distribution of assets to Ms Dougherty after their divorce;[27]
(c)A bundle of documents collectively numbering 65 pages, consisting of a statement from Mr Klaithin dated 30 August 2020, attached to which is a translated document relating to his criminal case in July 2011,[28] various photographs, a translated ‘Letter of Conduct Certification’ from a monk, and a translated letter from Mr Klaithin’s grandmother;
(d)Report of clinical and forensic psychologist Mr Newton dated 27 August 2020;[29] and
(e)A bundle of documents collectively numbering 15 pages, consisting of a statement from migration agent Ms Dao-Chaeng, attached to which are translated extracts from the Thai Firearms, Ammunition, Explosives, Fireworks, and the Equivalent of Firearms Act B.E.2490 (1947), and an English language version of s 91 of the Thai Criminal Code.[30]
[26] Exhibit R1.
[27] Exhibit A1.
[28] Exhibit A2.
[29] Exhibit A3.
[30] Exhibit A4.
Witness Evidence
Ms Dougherty, Mr Klaithin, Mr Newton and Ms Dao-Cheng gave oral evidence at the hearing and were cross-examined.
Evidence of Ms Dougherty
Ms Dougherty adopted her written statement as true and correct.[31] The Tribunal has also considered her Statutory Declarations dated 2 May 2018[32] and 3 June 2020.[33]
[31] Exhibit A1.
[32] Exhibit R1, 146-147.
[33] Ibid, 148-150.
In her oral evidence Ms Dougherty said she came to Australia in August 2002 at the age of 17, after her mother married an Australian man. Ms Dougherty reflected on her early life in Australia and meeting her first husband in 2007. They married in 2008 and had two children who are currently 11 and 9 years of age. Ms Dougherty said she separated from her husband in April 2016 and their divorce was finalised in November 2017. Consent orders made in March 2018 provide for ‘equal shared parental responsibility’ for the couple’s two children.[34] Ms Dougherty said her former husband is compliant with the consent orders, pays child support, loves their children, and undertakes activities with them. They cooperatively agree to vary access arrangements. Ms Dougherty submitted that the children also have a ‘very close relationship with their paternal grandparents.’[35] Ms Dougherty said the children were in good health and agreed there was no change to their schooling or other circumstances after Mr Klaithin returned to Thailand.
[34] Attachment to Exhibit A1.
[35] Exhibit A1, 4 [17].
Ms Dougherty said her relationship with Mr Klaithin was initially a friendship based on their Thai background. She assisted him with things like bills and buying groceries. Although he moved out after about three months of living together, they regularly kept in touch. She subsequently let him know about the separation from her husband, following which their romantic relationship developed. Ms Dougherty said they began living together in December 2016. She said Mr Klaithin got on very well with her children and despite him not being able to speak English, they managed to understand each other. She said Mr Klaithin assisted her with care of the children and helped her deal with the stress of divorce.[36]
[36] Exhibit R1, 149 [11].
Ms Dougherty said that Mr Klaithin told her about his criminal convictions soon after they first met in January 2016.[37] When asked why he would reveal this information to her but not to his first wife, Ms Dougherty said Mr Klaithin told her he was ashamed to do so, and his ex-wife had never asked him about a criminal history. Ms Dougherty said that approximately a month prior to Mr Klaithin’s visa expiring, she went with him to a Department of Immigration office in Melbourne to ascertain his visa status. This was because she did not want him to overstay his visa and thought the end of his marriage may have had visa implications. Ms Dougherty said she did not make an appointment and has no record or recall of who she spoke to. She claimed to have told a Departmental official at the front desk that Mr Klaithin separated from and divorced his wife ‘ages ago,’ but was told after a visa status check that Mr Klaithin could remain in Australia until his visa expired.
[37] Ibid, 148 [3].
After Mr Klaithin returned to Thailand, Ms Dougherty said they kept in touch via the internet and telephone calls, which was difficult given the time difference. She and her family helped to financially supported Mr Klaithin and his family in Thailand.
If Mr Klaithin could return to Australia, Ms Dougherty said they intended to marry, pursue their studies, work, buy a house together, and perhaps have children. If Mr Klaithin was not permitted to return to Australia, she said her ‘heart will break,’ but she would remain here because of better opportunities for her children, to look after her elderly parents, and to pursue work aspirations after completing her vocational training at the end of 2020.
Evidence of Mr Klaithin
Mr Klaithin adopted his statement dated 30 September 2020 as true and correct. After several questions were translated by the interpreter, Ms Germov asked Mr Klaithin to confirm that he and the interpreter could understand each other, which he confirmed. Mr Klaithin’s oral evidence can be summarised as follows:
(f)He was born in a provincial area about 1000 km from Bangkok. He has a younger brother who works in a shop. His father is a farmer who separated from Mr Klaithin’s mother and now has a new family but lives close by. Mr Klaithin’s mother currently works overseas. Mr Klaithin said after completing high school he did a two-year course at a technical college in computing but preferred carpentry and currently works as a carpenter. Mr Klaithin said while growing up he did several years of Army training, including the use of weapons and explosives.[38]
[38] Ibid, 57; 78.
(g)Mr Klaithin was taken through the circumstances of his criminal convictions in Thailand, insisting he was innocent. He said that he and his family borrowed the equivalent of AUD$4000 to hire a lawyer to defend the charges but claimed: ‘the lawyer turned out to be useless. The prosecutors never compared my fingerprints with those on the pistol or made any forensic investigations about that weapon.’[39] Mr Klaithin explained:
[39] Ibid, 109.
‘I wasn’t the person who broke the law I was set up by my close friend. On 5 February 2010, I was accused by a persecutor that I possessed a gun, and the court judged and ordered 1 year in prison. In fact, the gun wasn’t mine. I refused in the initial stages but the court didn’t believe me….I had many witnesses to confirm that I was innocent…However, the court judged I was guilty…I decided not to fight more in the court because I didn’t have money to hire a good lawyer and I didn’t want to spend hours and hours travelling from home to court. I felt hopeless, depressed, and discouraged for what my friend has done to me so I decided to plead guilty.’[40]
(Errors in original)[40] Ibid, 102.
(h)When asked why he did not appeal, Mr Klaithin said he could not afford further legal costs and the judge’s decision made him ‘feel bad about the justice system,’ so he ‘decided to go to jail and not argue.’ He said he was released after five months due to excellent behaviour, after the prison controller nominated him for a King’s Pardon;
(i)Mr Klaithin was asked about the claim in his statement that his prison record affected his whole life and ‘made it hard for [him] to get work. He agreed there were ‘so many times’ that this issue affected him, including his employment and was at least partly responsible for a girlfriend breaking up with him after his release from prison.
(j)In relation to the failure to disclose his Thai criminal history during travel to Australia in late 2013, Mr Klaithin explained that a travel agent and his former wife were responsible for completing the required forms:
‘…the agent filled all application forms for me and the agent has never asked me any questions about myself. I trusted and believed in the agent to organise my VISA because all documents and application forms were in English and my English wasn’t good at all…On the day I travelled to Australia, my ex-wife…was the one who filled the form for me because I couldn’t read and write much in English. I didn’t know what information that she filled in for me and I did not check the form because I trusted her…I didn’t have an intention to conceal my criminal history…I have official evidence to prove that I was acquitted;’[41]
(k)When asked if routinely signed documents without understanding what they contained, Mr Klaithin said he did so if he trusted the person, and this included his current statement, which Ms Dougherty had advised him to sign. When asked why he had not told his wife about his criminal offending, Mr Klaithin said he did not wish to ‘disturb her mental state’ and there was ‘no point to share the negative part.’ When put to Mr Klaithin that if he told his ex-wife about his criminal history, she may not have included him as a dependant on her Student Visa, he responded: ‘it’s possible.’ When put to Mr Klaithin that he intentionally concealed this information because it was in his interest to do so, he responded: ‘I wasn’t thinking of that;’
(l)Mr Klaithin said he and his wife initially lived in Sydney after arriving in Australia. He initially undertook work as a cleaner, was paid ‘cash in hand,’ and did not disclose this income. He agreed that this employment was not declared in his Partner Visa application, stating: ‘Maybe it wasn’t significant enough to report;’
(m)Mr Klaithin stated that a friend suggested he consider fruit and vegetable picking, which was better paid. He claimed that prolonged separation from his wife while doing this work caused them to separate soon after arriving in Australia and to subsequently divorce. Mr Klaithin agreed that he remained in Australia and worked for over three years after the relationship with his visa sponsor ended and did not inform immigration authorities;
(n)When asked why he felt he could remain in Australia as a dependant on his ex-wife’s Student Visa after their separation, Mr Klaithin said she did not cancel his attachment to her visa, so he continued working. He had not worried about his visa status because he did not know how to read or write English, and his ex-wife had taken care of visa issues in the past. He claimed to be unaware of what his visa status was, and no one advised him he could not stay. Mr Klaithin agreed that at the time ‘all he cared about was making money,’ and to be with Ms Dougherty. He explained his motivation was to build up a ‘lump sum’ to live on after returning to Thailand;
(o)Mr Klaithin said when he started living with Ms Dougherty in December 2016, he soon met her parents who accepted him. He also got on ‘quite well’ with her children, although he felt ‘unease at not being able to speak English.’ He said that he spoke to the children in Thai and they responded in English. He contributed to some bills while living with Ms Dougherty for an eight-month period from December 2016 until August 2017. Contrary to Ms Dougherty’s claim that Mr Klaithin did not provide any financial contribution, Mr Klaithin’s evidence was that he left her $4000 in cash prior to departure for Thailand for his visa matters but had no evidence of this contribution. He said Ms Dougherty and her family had financially supported him in Thailand.
(p)Mr Klaithin said Ms Dougherty wanted him to ‘do the proper thing’ and return to Thailand when his visa expired, after which they would apply for a Partner Visa. After returning to Thailand he kept in touch with her through social media and telephone calls. She visited him once with her children and parents in late 2017 and then alone in January 2019. If allowed to remain in Australia he would try and learn English, get a job as a carpenter or handyman, and save for a home with Ms Dougherty. If not permitted to return to Australia, he would ‘re-think and set a new plan,’ but would continue his relationship with Ms Dougherty through social media, telephone calls and visits, and ‘find another way to achieve our goal.’
[41] Ibid, 101.
Evidence of Ms Dao-Cheng
Ms Dao-Cheng adopted her statement dated 30 August 2020,[42] which is in similar terms to earlier correspondence dated 4 June 2020.[43] The latter stated:
[42] Exhibit A4.
[43] Exhibit R1, 159-161.
‘I refer to our most recent correspondence and your instructions to provide comments on the seriousness of offences committed under the Firearms, Ammunition, Explosives and the Equivalent of Firearms Act 1947 and the ranges of penalties for the offences. To assist with the provision of advice, I have been provided with the documents attached to the Notice of Intention to Consider Refusal under s501 of the Migration Act 1958 (“NOICR”).
I am a registered Thai lawyer with a current practising certificate which is enclosed herewith and I am licenced to advise on Thai laws. I also hold a licence to practice migration in Australia.
…
To be convicted of a criminal offence in Thailand, the Court must be satisfied that there is sufficient evidence against the accused and the plaintiff can prove such offence beyond reasonable doubt pursuant to Section 227 of the Criminal Procedure Code 1934.
Offences under Sections 7 of the Firearms Act are similar to strict liability offences in that there is no requirement of intention or knowledge. Once, the accused is found to be in a possession of a firearm or ammunition which is licenced to another person, the elements of the crime are met. Similarly, Section 8 bis paragraph 2 operates in the same way.
The penalties for contravening Section 7 of the Firearms Act are found under Section 72 paragraph 3 which imposes a minimum term of six months imprisonment to a maximum term of 5 years and a fine of 1,000 BAHT to 10,000 BAHT.
Section 72 bis paragraph 2 imposes the same penalties for contravening Section 8 bis paragraph 2 of the Firearms Act.
As Mr Klaithin committed several offences, the Court imposed penalty for each offence to be served consecutively pursuant to Section 91 of the Criminal Code. With a conviction of only six months imprisonment for each offence, it can be seen that the Court did not consider the conduct of the accused to be of serious nature. A minimum of six months jail term is the lowest term possible under these provisions. There is no concept of good behaviour bond or diversion in criminal trial.
Due to rising gun violence and gun related crimes in Thailand, the Firearms Act was amended in 1976 to impose harsher sanctions to punish the wrongdoers and deter others from committing similar acts. Whilst its original purpose was well intended, the outcomes might not strike the balance that the Act aims to achieve and a case like this demonstrates this shortcoming.
In the final paragraph of her statement dated 30 August 2020, Ms Dao-Cheng opined that ‘Mr Klaithin’s case demonstrates the legislation’s failure to strike an appropriate balance between deterrence and punishment proportionate to the offence.’
In her oral evidence, Ms Dao-Chaeng said she practiced law for a year in Thailand before coming to Australia, but her only exposure to criminal matters was as a clerk at her father’s practice. She explained the different levels of the court system in Thailand, stating that for a person to be convicted, the required standard of proof was ‘beyond reasonable doubt,’ and the onus was on the prosecution. She said Mr Klaithin’s offences were akin to strict liability offences.
During cross-examination Ms Dao-Chaeng agreed she had not seen any of the documents relevant to Mr Klaithin’s convictions such as sentencing remarks. She also agreed that her comments about the Thai legislature’s failure to strike an appropriate balance between deterrence and punishment with respect to weapons law was a personal and not an expert opinion.
Evidence of Mr Newton
Clinical and forensic psychologist Mr Patrick Newton adopted his report dated 26 August 2020 as true and accurate.[44] Mr Newton said he conducted two consultations with Mr Klaithin in August 2020 by video link to Thailand. Each was planned to be an hour and a half in duration, and he was assisted on both occasions by the same interpreter in the Thai language.
[44] Exhibit A3.
The first consultation was ‘quite difficult,’ with about half an hour lost due to communications issues. The second consultation four days later was uneventful. Mr Newton said his assessment was not based on any formal testing, because of English language difficulties and the cognitive tests could not be administered by video.
Mr Newton concluded that Mr Klaithin posed a ‘low risk’ of recidivism, which was the lowest available rating. Mr Newton did not consider there were any strategies necessary to contain or ameliorate Mr Klaithin’s risk of recidivism.
During cross-examination, Mr Newton agreed that his usual practice when providing reports was to administer ‘extensive testing,’ which was ‘typically an important part of findings.’ He agreed that he was reliant on Mr Klaithin’s self-reported claims and had no experience in assessing the recidivism risk of those convicted of criminal offences in Thailand. When asked his opinion about whether Mr Klaithin had been forthcoming or concealed information, Mr Newton said his impression was that Mr Klaithin was ‘moderately self-disclosing.’
Character references
The Tribunal has considered a supportive reference from Ms Dougherty’s stepfather, dated 22 May 2018,[45] but he was not called as a witness.
[45] Exhibit R1, 151.
The Tribunal has considered a translated ‘certificate of conduct’ that Mr Klaithin requested from a Buddhist monk in the area where he lives in Thailand.[46] The author was not called as a witness. The document refers to Mr Klaithin’s involvement with the temple since 19 May 2018 and other community contributions. No reference is made to Mr Klaithin’s criminal convictions. The author stated that Mr Klaithin has ‘morality and ethics,’ is ‘well-behaved for the sake of himself and society,’ and is ‘not a person with bad behaviour…and no impairment in good morals in any way.’
[46] Ibid 152-54.
The Tribunal has considered a translated statement from Mr Klaithin’s grandmother dated 2 June 2020, stating she has provided ‘support and maintenance’ to Mr Klaithin since the age of five.[47] The author was not called as a witness. The author claimed that Mr Klaithin has ‘never misbehaved, never been delinquent, and never put his grandparents in trouble.’ No reference is made to Mr Klaithin’s criminal convictions.
PRIMARY CONSIDERATIONS
[47] Ibid, 155-157.
Protection of the Australian community from criminal or other serious conduct
Clause 11.1(1) of the Direction states:
When considering 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. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also 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.
Clause 11.1.1 of the Direction sets out factors to be considered in determining the nature and seriousness of a non-citizen’s offending or other serious 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 seriously.
b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled)…are serious;
c) 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; 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;
d) 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 serious;
e) The sentence imposed by the courts for a crime or crimes;
f) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
g) The cumulative effect of repeated offending;
h) Whether the non-citizen has provided false or misleading information to the [D]epartment, including by not disclosing prior criminal offending;
i) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Tribunal consideration: The nature and seriousness of the conduct
Both Ms Dougherty and Mr Klaithin made submissions about inadequacies in the Thai legal system. Mr Klaithin variously attributed his convictions to being set up by a close friend, ineffective legal representation, forensic and prosecutorial failures, and the absence of a CCTV camera that may have exonerated him. There are no sentencing remarks available, but the Tribunal has considered a translated document provided by Mr Klaithin from the Phayao Provincial Court, detailing the outcome of his trial.[48] The document states that Mr Klaithin was convicted of unauthorised possession of a loaded 45 calibre pistol at a public event. The pistol was found in a backpack owned by Mr Klaithin, which contained his student identification card and a mobile phone, ‘approximately 1-2 minutes’ after Mr Klaithin gave the backpack to a friend.[49] Mr Klaithin’s oral evidence was that he loaned the backpack to the friend to enable drinks to be carried back to the group.
[48] Attachment to Exhibit A2.
[49] Ibid, ‘Criminal Case’ (Translation) [6].
Ms Germov made submissions about the dissimilar nature of sentencing options in Thailand and Australia, focussed on the Firearms Act 1996 (Vic), and the opportunity to impose a range of non-custodial penalties instead of imprisonment. It was contended that the removal of such discretion from Thai law had served to impose ‘a harsher punishment for the same offences than would be received by a person with [Mr Klaithin’s] background in Victoria.’ Reference was also made to the approach taken in Victoria for like offending, with reliance placed on the report by Victoria’s Sentencing Advisory Council on Current Sentencing Practices for Firearms Offences (May 2019), which the Tribunal has considered;[50]
[50] Exhibit R1, 162-173.
Mr Downie submitted that the nature and seriousness of Mr Klaithin’s offending favoured visa refusal because:
(a)unauthorised possession of a firearm and ammunition in a public place is serious offending within the meaning of the Direction;
(b)the sentence imposed on Mr Klaithin was a cumulative period of 12 months imprisonment and is probative of the seriousness of his offending. Ms Dao-Cheng’s evidence, in the absence of sentencing remarks was speculative at best;
(c)Mr Klaithin has provided false and misleading information to the Department by not disclosing his criminal offending both in his 2013 Student Visa application (as a dependent applicant) and on an IPC on first arrival to Australia. Mr Klaithin’s claim that he was unaware of the need to disclose this information or the serious consequences non-disclosure could carry is not to the point and, in any event, ought to be treated with caution in light of his own evidence about the difficulties he faced in finding employment because of his criminal history. Mr Klaithin clearly understood that his criminal history was relevant, important, and of interest in a formal setting;
(d)Mr Klaithin’s evidence that he withheld his criminal history from his ex-wife and the migration agent who prepared his Student Visa application is further evidence of his preparedness to conceal the truth to secure a benefit and of a reckless indifference or willful blindness to the possibility of important information being withheld, which is indicative of a disrespect for important Australian institutions: subclause 6.3(1) of the Direction; and
(e)evidence that has been given about the likely penalties that might have attached to similar offending had it occurred in Australia is speculative and distracts rather than assists the Tribunal, as nothing within that evidence suggests the visa applicant's conduct, had it occurred in Australia, would not have constituted a criminal act: cl 11.1.1(j) of the Direction.
The Tribunal notes that Australian courts have dealt with the question of foreign convictions, including in Khazaal v R [2011] NSWCCA 129 (Khazaal). Khazaal was an appeal against a conviction and sentence, which proposed at [152]-[154] that a finding of good character should be made because the appellant had no criminal record in Australia. The Crown tendered evidence of the appellant’s criminal history in Lebanon, showing he was convicted of certain offences, including possession of explosives. At [158]-[159], McClellan CJ outlined and applied principles for Australian courts engaging with foreign convictions, which was endorsed by the majority in Khazaal v R (No. 2) (2013) 304 ALR 345. Although Khazaal was in the context of a criminal trial, the Tribunal considers the reasoning apposite to the present matter. The Court held it may have regard to foreign convictions ‘…even where the system under which they were imposed does not conform with the common law criminal justice system….’ The Court stated:
‘The question is whether the procedures leading to those convictions…evoke the outrage of this court. The evidence relied on by the appellant does not support an affirmative response to that question. As her Honour observed (at [40]):
[40] …To the extent that the prisoner seeks to call into question the fairness of the trial process in Lebanon, the same complaint in R v Postiglione (1991) 24 NSWLR 585 was met with the following:
The essence of complaint is that, in distinction from the common law trial method, the appellant was convicted without the opportunity of confronting and cross examining persons who incriminated him. Such an opportunity is fundamental to our system of trial but it does not follow that another system which involves proof of guilt by different procedures in investigation, evidence gathering and analysis must include the same step. The argument misapprehends that a course which is essential to the achievement of justice in one particular system must necessarily be an ingredient in another.
[159]…I agree with the sentencing judge that the appellant’s submission goes no further than an unsubstantiated assertion that he was denied procedural fairness.
(Emphasis added).
The Tribunal also notes the decision of Deputy President Block in Shmarakova and Minister for Immigration, Multicultural and Indigenous Affairs [2003] AATA 976 (Shmarakova). Consistent with the reasoning in Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197, Deputy President Block Tribunal held it was not entitled to ‘question the validity of an order by a competent court of a friendly jurisdiction’.[51]
[51] Shmarakova, [20]; [179].
In Petrovic and Minister for Immigration and Multicultural Affairs [2000] AATA 1135 at [10], Deputy President Breen held that because the conviction and sentence in that matter formed the basis of the power to refuse to grant the visa, it was not open to the Tribunal to impugn the conviction. In discussing the nature and seriousness of the offence, Deputy President Breen reasoned:
‘What the Tribunal is left with is a description of an event which occurred 24 years ago and was considered serious enough under Yugoslavian law to warrant a conviction and a lengthy criminal conviction. That the same event may not have been treated so harshly in Australia is something the Tribunal may have regard to…but the fact of the conviction remains and cannot be disregarded in any way. To take this approach is not to go behind the conviction but, rather, to assess how seriously the Australian community would regard this particular instance of criminal activity in all of the circumstances. The mere fact that a conviction issues out of a foreign court does not of itself give cause for this Tribunal to question it. There would have to be clear evidence of a substantial miscarriage of justice, which is political in nature, before that issue would arise.’
In HZCP v Minister for Immigration & Border Protection [2018] FCA 1803, an applicant appealed from a decision of the Tribunal, contending it had erred by acting on the premise it could not receive evidence inconsistent with or contradicting evidence relied on by the District Court of Western Australia in arriving at the applicant’s conviction. While distinguishable from the present matter in that the subject offending occurred in Australia, Justice Bromberg summarised the principles described by Beach, McLeish and Niall JJA in Secretary to the Department of Justice and Regulation v LLF (a Pseudonym) [2018] VSCA 155 at [78]-[79] of his reasons:
‘… the applicable principles are these:
(1) Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.’
It is settled law in Australia that a plea of guilty means a person admits to, and accepts, all the elements of the offence. For example:
‘An accused is entitled to plead guilty to an offence with which he is charged and, if he does so, the plea will constitute an admission of all the essential elements of the offence. Of course, if the trial judge forms the view that the evidence does not support the charge or that for any other reason the charge is not supportable, he should advise the accused to withdraw his plea and plead not guilty. But he cannot compel an accused to do so and if the accused refuses, the plea must be considered final, subject only to the discretion of the judge to grant leave to change the plea to one of not guilty at any time before the matter is disposed of by sentence or otherwise. (Footnote: R v Inglis [1917] VLR 671)’[52]
(Emphasis added.)
[52] Maxwell v R [1996] HCA 46; 184 CLR 501, at [19].
Australian courts have accepted there may be limited cases where a plea of guilt may be impugned. Redlich JA said in Weston v R (2015) 48 VR 413; [2015] VSCA 354, at [109]:
‘To impugn the integrity of the plea, whether before or after conviction, the applicant must show an ‘issuable question of guilt’ and the existence of some circumstance which affects the integrity of the plea so that it would be a miscarriage of justice to hold the applicant to his plea. Some of the more common examples cited that may justify the conclusion that the applicant should not be held to his plea are that the applicant may not have appreciated the nature of the plea which he had entered, there may be no evidence upon which he could have been convicted, he may not have intended to admit he was guilty, or his plea may have been induced by fraud or other impropriety or that it was not offered with a consciousness of guilt.’
Tribunal findings: The nature and seriousness of the conduct
There is a heavy onus on a person seeking to challenge the facts upon which a conviction is based. Mr Klaithin concedes he pleaded guilty to and was found guilty of an offence under Thai law, which resulted in a sentence of 12 months imprisonment. He may present matters contextually relevant to the offending,[53] but the Tribunal cannot contradict convictions that are the foundation for the exercise of power in this matter.[54]
[53] Re Du Pont v Minister for Immigration and Ethnic Affairs [1983] AATA 180.
[54] Ali and Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 (Branson, Lindgren and Emmett JJ). See also: Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575; Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135; Re Milnar v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771; Minister for Immigration and Multicultural Affairs v Ali (2000) 62 ALD 673 at [41] to [45].
Mr Klaithin was legally represented and pleaded guilty. The available evidence does not disclose circumstances that might evoke the outrage of the Tribunal or the exceptions noted in Weston. There is no permissible basis to impugn Mr Klaithin’s convictions.
The aspects of cl 11.1.1(1) of the Direction relevant in this matter are:
(f)11.1.1(1)(a): Mr Klaithin was convicted of serious offences within the meaning of the Direction. The Tribunal does not accept Ms Dao-Cheng’s evidence that the imposition of ‘only six months imprisonment’ for each offence supports a conclusion that the Thai ‘Court did not consider the conduct of the accused to be of a serious nature.’[55] That contention is made without reference to the Court’s sentencing remarks and is speculative at best. This is particularly so in the context of evidence that the Firearms Act in Thailand ‘was amended in 1976 to impose harsher sanctions to punish the wrongdoers and deter others from committing similar acts.’[56] The Australian Sentencing Advisory Council Report on Firearms Offences and Current Sentencing Practices is also probative to the seriousness of Mr Klaithin’s offences;[57]
(g)11.1.1(1)(f): Mr Klaithin received two six-month sentences of imprisonment in Thailand, which the Tribunal accepts are at the bottom end of the imprisonment range for these offences. Dispositions involving incarceration, however, are at the top end of any court’s sentencing hierarchy;
(h)11.1.1(1)(i): Mr Klaithin’s explanations for failing to disclose his Thai criminal convictions on his 2013 visa application and IPC do not alleviate his personal responsibility for documents lodged in his name. The evidence discloses he was aware of the adverse consequences of his convictions, including prospects of work and impact on relationships.[58] His desire to live in Australia was intended to secure a ‘beautiful future’ with ‘better work,’ which his life in Thailand did not give him because of his ‘past.’[59] The Tribunal does not accept Mr Klaithin’s claim that he ‘didn’t have any intention to conceal [his] criminal history.’ On his own evidence he did conceal it from his ex-wife for the entirety of their relationship. This was information in his personal knowledge that he failed to reveal, and which resulted in relevant information being excluded from consideration by those responsible for determining his application to enter and remain in Australia. This gives rise to the possibility at least that Mr Klaithin’s initial attempt to enter Australia may have been rejected in December 2013. It is noteworthy that Mr Klaithin did not disclose his criminal history to Australian authorities for the entire duration of his four-year stay, first disclosing it in a visa application submitted from Thailand in February 2018. The separation and divorce from his visa sponsor soon after arriving in Australia is considered to have imposed on Mr Klaithin an obligation to inform the Department of a material change of circumstances. During his oral evidence, Mr Klaithin also conceded that he failed to disclose work he undertook soon after arriving in Australia, for which he received cash payments and did not declare as income. He also did not disclose this work in his Partner Visa application. Mr Klaithin’s failures to disclose relevant information to immigration authorities is at odds with maintaining the integrity of Australia’s immigration program; and
(i)11.1.1(1)(j): The offences Mr Klaithin was convicted of in Thailand are classified as offences in Australia.[60] Each case turns on its own facts and in the absence of any agreed facts or sentencing remarks, it is not possible to do more than highlight the existence of comparator offences. The Tribunal respectfully considers Ms Dao-Cheng’s comments about the extent to which the legislation Mr Klaithin was convicted under strikes an appropriate balance between punishment and deterrence is a personal rather than expert opinion.[61]
[55] Exhibit R1, 159-160.
[56] Ibid, 160.
[57] Ibid, 171-172.
[58] Exhibit A2, 3 [16]; Exhibit R1, 102.
[59] Exhibit R1, 96.
[60] Firearms Act (1996) (Vic), s 7; s 7B.
[61] Exhibit R1, 172.
It is to Mr Klaithin’s credit that he has no criminal history in Australia. There is also no evidence of any further offending since he returned to Thailand. On balance, however, his Thai criminal history and failure to disclose it in official documents prior to and during his four-year stay in Australia is considered serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 11.1.2 of the Direction states:
(1)In considering whether the non-citizen 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 likelihood that it may be repeated may be unacceptable.
(2)In addition, decision-makers should have regard to the principle that 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.
(3)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
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 from independent and authoritative sources on the likelihood of the non-citizen re- offending; and
ii. evidence of any 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); and
iii. the duration of the intended stay in Australia.
(4)Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short stay visa.
In Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213 (cited with approval by Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [43]), the following passage, at [111], related to what constitutes an unacceptable risk:
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
(footnotes omitted)
Mr Klaithin intends to move to Australia, marry Ms Dougherty and live here permanently. He stated in his 2020 PCF that he does not constitute a risk of reoffending and pointed to his ‘clean record’ while living in Australia. The Tribunal has considered Mr Klaithin’s reference to being given ‘rehabilitation’ prior to release from prison in Thailand,[62] although this is unspecified. His oral evidence was that he undertook vocational training in carpentry while imprisoned, and now works as a carpenter.
[62] Attachment to Exhibit A2.
Ms Germov submitted that the Tribunal should accept Mr Newton’s ‘educated clinical judgement’ that Mr Klaithin represented a ‘low’ risk of recidivism and did not have the ‘characteristics of most recidivist offenders.’ She said Mr Klaithin had led a productive life since leaving prison and did not constitute an unacceptable risk of reoffending. Ms Germov stated that the reference in the Direction to the community’s low tolerance of any criminal or serious conduct by visa applicants ‘is not the same as no tolerance.’ It was emphasised there was no actual violence associated with Mr Klaithin’s offences and he received the lowest available sentence of imprisonment. Other contentions made by Ms Germov in relation to risk were:
(a)Weight should be placed on the evidence of Ms Natacha Dao-Chaeng about the mandatory sentence of imprisonment arising from Mr Klaithin’s ‘strict liability offences’ and that he was a ‘model prisoner’ to receive a King’s Pardon;
(b)The Australian community would conclude that Mr Klaithin ‘had provided a reasonable explanation for failing to disclose his criminal conviction in the student visa application and on his incoming passenger card.’ This arose from his inability to speak, read or write English and because he was the secondary applicant on a visa application ‘handled by his first wife and the agent engaged to assist.’ Mr Klaithin purportedly did not tell his first wife about his convictions and imprisonment, because ‘he wanted to put a painful and shameful experience behind him;’
(c)The references in evidence showed Mr Klaithin was ‘hard-working, honest…willing to help people for no reward…[and]…a fundamentally good person;’ and
(d)Comprehensive written submissions were made about how risk should be interpreted in relation to s 501(6)(d)(i) of the Act, which encompasses situations where a visa applicant has no convictions whatsoever.
Mr Downie submitted that:
(a)Consistent with the threshold of risk established by the express wording of cl 11.1.1(2) of the Direction, there is a low tolerance for any serious or criminal conduct by visa applicants, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia;
(b)While it is not evident that Mr Klaithin has engaged in any subsequent criminal conduct, he has demonstrated the capacity to do so in the past and the independent and authoritative evidence before the Tribunal suggests there remains a real risk, albeit a low one, of him engaging in further offending;
(c)Little weight should be placed on the expert evidence of Mr Newton and Ms Dao-Chaeng, because:
(i)Mr Newton had conducted consultations totalling approximately two hours by video and had not undertaken the psychological testing he usually did, which was typically an important part of his overall assessment. Moreover, Mr Newton had no experience reviewing persons imprisoned in Thailand, had no access to Mr Klaithin’s medical records, had based his assessment largely on Mr Klaithin’s self-reported claims, and considered Mr Klaithin had only moderately disclosed matters detrimental to him; and
(ii)Ms Dao-Chaeng had no experience as a Thai lawyer in the criminal system and had not seen sentencing remarks or similar material relevant to the specific circumstances of Mr Klaithin’s convictions.
Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal finds:
(a)Mr Klaithin’s intention in applying for the visa is to marry Ms Dougherty and subsequently apply to remain in Australia permanently;
(b)The submissions in the Applicant’s Statement of Facts, Intentions and Contentions (ASFIC) about interpreting risk in relation to s 501(6)(d)(i) of the Act are of limited relevance, because Mr Klaithin failed the character test under a different section of the Act (s 501(7)(d));
(c)The Tribunal does not accept that Mr Klaithin is innocent of offences he pleaded guilty to almost nine years ago, or that the findings of guilt can be attributed to judicial error, or inadequate legal representation, or being set up by a friend. The Tribunal also does not accept that Mr Klaithin has ‘official evidence to prove [he] was acquitted.’[63] Mr Klaithin was legally represented and convicted of these criminal offences after pleading guilty;
(d)Mr Klaithin’s criminal offending relates to a single incident in 2011, with no other know convictions during his stay in Australia or following his return to Thailand. There is no evidence to the contrary that he was other than a compliant prisoner and received early release. It is accepted he has led a hard-working life in Thailand since, making valued contributions to the life of his family and community;
(e)The nature of harm should Mr Klaithin again carry a loaded firearm into a public place is potentially serious. The Tribunal accepts Mr Klaithin is familiar with weapons and explosives, having undertaken almost four years of military training in the past. In terms of harm caused by the omission of his criminal history and other information from official documents, this has the potential to undermine the ability of immigration officials to properly consider applications to enter and remain in Australia;
(f)Mr Klaithin has an offer of stable accommodation and support from Ms Dougherty and her parents, which constitute protective factors if he did return to Australia;
(g)Mr Newton did not undertake any of the ‘extensive testing’ he typically does, and which he said could significantly influence his overall assessment. Mr Newton also agreed he had no expertise in assessing persons convicted of criminal offences in Thailand and was reliant on Mr Klaithin’s self-reporting, which was only ‘moderately self-disclosing.’ In such circumstances, little weight is placed on Mr Newton’s report;
(h)Mr Klaithin’s reference to having a ‘clean record’ while living in Australia must be seen in the context of his overall conduct. The Tribunal is concerned by several issues. Mr Klaithin’s attitude to official documents lodged in his name bordered on indifference, and he repeatedly attributed failure to submit information as the responsibility of others. This includes his ex-wife, who he failed to disclose his criminal history to, and who, therefore, did not have the information needed to correctly complete his IPC;
(i)The Tribunal is unpersuaded by Mr Klaithin’s explanation about the deficiencies in documents submitted to immigration authorities. Any language issues do not obviate his personal responsibility as a visa holder. The Tribunal considers Mr Klaithin was aware of the potentially adverse consequences of disclosing his criminal record, which is a more likely explanation for why he concealed it from his ex-wife. He conceded in oral evidence she may not have included him as a dependant on her Student Visa if he had disclosed his criminal past. Moreover, he continued to live and work in Australia for over three years after the relationship with his wife / visa sponsor ended, without informing immigration authorities of a material change in his circumstances. Additionally, Mr Klaithin stated in his oral evidence that some of the work he did in Australia was on a cash basis and the income undeclared; and
(j)Mr Klaithin’s willingness to conceal his criminal past from his former spouse, omission of relevant information in official documents under his signature, indifferent attitude to his visa status after the relationship with his visa sponsor ended, and undeclared income for some work in Australia, gives rise to continuing concerns about the extent to which he will be honest when he perceives an advantage for himself, or does not otherwise consider it in his interests to do so.
[63] Exhibit R1, 101 (final sentence); 102 (first sentence of second paragraph).
Although Mr Klaithin’s criminal conduct is objectively serious, it occurred nine years ago. His failure to disclose criminal offending in his 2013 visa application and IPC occurred seven years ago. There is no evidence he has been other than law-abiding since returning to Thailand three years ago. The Tribunal considers on the totality of the evidence that Mr Klaithin’s risk of reoffending is low, but when considered in conjunction with his other conduct, finds it is nevertheless a real rather than a minimal or trivial risk. On balance, although the primary consideration ‘Protection of the Australian community from criminal or other serious conduct’ weighs in favour of visa refusal, it does so only slightly.
Tribunal consideration: Best interests of minor children in Australia
Paragraph 11.2 of the Direction requires that the Tribunal must determine whether visa refusal is, or is not, in the best interests of children. That consideration applies only if the child is, or would be, under the age of 18 years at the time the decision to refuse to grant the visa is made. In considering the best interests of the child, paragraph 11.2(4) provides:
In considering the best interests of the child, the following factors must be considered where relevant:
a) The nature and the 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 the 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.
Mr Klaithin stated that his relationship with Ms Dougherty’s children is ‘very close’ and he loves them like his ‘own sons.’[64] He believes he ‘can be the father for them.’[65] He referred in his 2020 PCF to ‘doing everything a real father would do’[66] while living with Ms Dougherty during an eight-month period between December 2016 and August 2017. He also referred to the children visiting him in Thailand in late 2017 and to speaking with them on the telephone since.
[64] Ibid, 103
[65] Ibid.
[66] Ibid, 95.
Ms Dougherty’s evidence is that Mr Klaithin was most attentive to the needs of her children while they were living together and has formed a bond with them. Both Ms Dougherty and Mr Klaithin say that in the event of an adverse decision in this matter, neither Ms Dougherty nor her children would relocate to Thailand. That is because the children’s best opportunity is in Australia, and their father would not allow them to migrate to Thailand. In her oral evidence Ms Dougherty said she and her ex-husband share parental responsibility and he loves the children very much. She confirmed he is compliant with consent orders, pays child support, and they have a cooperative approach in varying access arrangements. She also referred to a very close relationship the children have with their paternal grandparents. Ms Dougherty said the children are in good health, did not receive any financial contribution from Mr Klaithin, and agreed there had been no change in their circumstances after Mr Klaithin returned to Thailand. She referred to the children missing Mr Klaithin, providing an example where her younger child could not understand why he could only talk to Mr Klaithin on the phone, which Ms Dougherty explained was because of COVID-19 restrictions.
Mr Downie submitted that Mr Klaithin’s relationship with the children is non-parental and relatively short in duration. Except for a single visit to Thailand by the children in 2017 Mr Klaithin’s contact with them has been by telephone. Mr Downie contended that an adverse outcome in this application does not serve to deny the children access to education, healthcare or any other relevant interest, pointing to the consent orders dated 26 March 2018, which provide for the applicant and her ex-husband to equally share parental responsibility. Moreover, there is no evidence that Mr Klaithin has any financial or practical responsibility for either child and the evidence is they will remain in Australia with their mother, with continuing access to their biological father and grandparents, with whom they have a strong and established bond. Mr Downie submitted that because the best interests of the minor children will be served irrespective of the outcome of this case, this consideration should carry neutral weight.
Tribunal findings: Best interests of minor children in Australia
Mr Klaithin has developed some relationship with Ms Dougherty’s children prior to his departure from Australia in August 2017. The Tribunal also accepts Ms Dougherty and the children visited him in Thailand for a three-week period in late 2017 and have since maintained contact by telephone. It is noteworthy, however, that since Mr Klaithin commenced a relationship with the applicant in March 2016, he has lived outside of Australia for over three years of that four-and-a-half-year period, resulting in a long period of absence and limited meaningful contact with the children.
The Tribunal does not accept that Mr Klaithin has played a meaningful parental role in the lives of the children, who have biological parents in Australia that consensually share that responsibility. The Tribunal acknowledges, however, that Mr Klaithin and the applicant want to resume their relationship, in which he aspires to play a more prominent future role in the children’s lives. On the evidence currently before the Tribunal, however, that role will continue to be predominantly undertaken by the children’s biological parents.
The views of the minor children are not known, and their interests cannot be differentiated on the available evidence. There is no expert corroboration of any adverse effects on the children resulting from Mr Klaithin’s absence from their lives. The evidence discloses that the children’s key relationships are in Australia, including with their biological father and grandparents. There is no persuasive evidence that their relatively brief visit to Thailand in 2017 resulted in a more substantial relationship with Mr Klaithin.
The Tribunal has considered a Medical Certificate in evidence stating that Ms Dougherty was assessed by her general practitioner as suffering anxiety and depression rendering her as unfit for work or study from 15 November 2018 to 15 February 2019.[67] There is no evidence to corroborate the reason she suffered those conditions or whether it affected her ability to care for her children. There is also no evidence that care of the children is in any way deficient as a result of Mr Klaithin’s absence from their lives, or that they are in any way reliant on Mr Klaithin’s practical or financial support.
[67] Ibid, 158.
The Tribunal does not accept that the best interests of the minor children are meaningfully affected by a decision in this matter, except insofar as it may affect their mother, thereby having an associated effect on their interests. Although the Tribunal finds on balance that visa refusal is not in the children’s best interests, this primary consideration only weighs slightly in the Applicant’s favour.
Tribunal consideration: Expectations of the Australian community
Paragraph 11.3(1) of the Direction states:
The Australian community expects non-citizens to obey Australian 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 refuse the visa application of such a person. 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. Decision-makers should have due regard to the Government’s views in this respect.
In FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR), the Full Court of the Australian Federal Court dealt with the construction and application cl 11.3(1) (Expectations of the Australian community). Although FYBR referred to the previous Direction 65, the clause is in identical wording as cl 11.3 of the current Direction. The majority in FYBR held that this primary consideration is a ‘deeming’ provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[68] As Stewart J held at [104], ‘it is not the decision-maker who makes an assessment of community values on behalf of the community’.[69] His Honour summarised the community’s expectations at [101] and [103]:
101. Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.
…
103. …In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely...
[68] FYBR at [66] per Charlesworth J; and [91] per Stewart J.
[69] FYBR at [104] per Stewart J.
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but that ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine.’[70] The Direction helps inform the weight a decision-maker attributes to this primary consideration. For example, cl 6.3(3) of the Direction states that non-citizens who commit serious crimes, including ‘of a violent…nature, and particularly against women or children…should generally’ expect to forfeit the privilege of staying in Australia. The reasoning in FYBR also reinforces the flexibility in cl 8(4) that requires the government’s assessment of community expectations to be ‘generally…given greater weight than the other considerations,’ which ‘contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors…’[71]
[70] FYBR at [75]-[76] per Charlesworth J.
[71] FYBR at [76] per Charlesworth J.
The Tribunal notes the High Court has recently handed down a decision in respect of an application for special leave to appeal against FYBR.[72] In refusing the application, the High Court held at [301]-[303], that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’
[72] FYBR v Minister for Home Affairs [2020] HCA 056.
Ms Germov submitted that the Tribunal should not only have regard for the ‘expectation of the Australian community that if you do the crime, you do the time,’ but also the ‘fundamental principle of Australian society that people be given a fair go.’ It was further submitted that the Tribunal ‘should approach the expectations of the community in a way that is fair and humane and from the point of view of reasonable members of the Australian community who hold middle of the road views concerning migration issues and who do not hold extreme views one way or the other.’
Citing Re Leha and Minister for Immigration and Indigenous Affairs [2000] AATA 1054, Ms Germov submitted there was ‘a general expectation in the community that the Act would be administered fairly and humanely.’ Ms Germov said that Mr Klaithin has led a productive and hardworking life both in Australia and in Thailand, as evidenced by photographs in evidence displaying samples of his work. She submitted that everyone makes mistakes and ‘sometimes good people make bad choices,’ but ‘few people would find it reasonable to refuse the visa in the present case.’
Citing FYBR, Mr Downie submitted it is not for the Tribunal to make an assessment of community values on behalf of the Australian community but to give effect to the 'norm' stipulated in cl 11.3 of the Direction, which will, of its nature, weigh in favour of refusal, at least in most cases. He emphasised cl 6.3 of the Direction as establishing the Australian community’s low tolerance of any criminal or other serious conduct by people who have been participating in and contributing to the community for a short period of time, and for criminal or other serious conduct by visa applicants, reflecting there should be no expectation that such people should be allowed to come to or remain permanently in Australia. Given that the applicant had committed serious criminal offences in Thailand and his ‘past indifference toward the provision of false information,’ this was indicative of a disrespect for important Australian institutions.
Tribunal findings: Expectations of the Australian community
The deemed community expectation in this matter weighs against the application. Having regard for the totality of Mr Klaithin’s offending and other conduct, the Tribunal finds this consideration weighs moderately against granting the visa.
OTHER CONSIDERATIONS
Neither party submitted that International non-refoulement obligations, Impact on victims, or Impact on Australian business interests were relevant in this matter.[73] The evidence does not disclose these considerations are enlivened, and the Tribunal finds they should be afforded neutral weight. The only relevant other consideration is ‘Impact on family members,’ which is discussed below.
[73] Exhibit R1, 80 [1].
Tribunal consideration: Impact on family members
Paragraph 12.2(1) of the Direction requires consideration of the:
Impact of visa refusal on immediate family members in Australia where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
All of Mr Klaithin’s direct family members live in Thailand, except for his mother who currently lives and works overseas.[74] The only statement from his direct family members is from his grandmother, which the Tribunal has considered. Mr Klaithin considers his family members in Australia to be Ms Dougherty, her parents and children.
[74] Ibid, 96.
Ms Dougherty said she cannot return to Thailand to live with Mr Klaithin while her children are minors, because their education and life prospects are better in Australia, and her ex-husband would not allow them to leave on a long-term basis. She is also undertaking vocational studies and hopes to find work in that field once her studies are concluded at the end of 2020. Ms Dougherty stated that although she maintains her relationship with Mr Klaithin by telephone and internet, this is a poor alternative to his physical presence. She claims to be unable to afford regular visits to see Mr Klaithin in Thailand.
Mr Downie submitted that Ms Dougherty and her children have maintained residence in Australia since Mr Klaithin returned to Thailand in August 2017 and have continued to support themselves without his assistance since. He contended this is the ‘status quo’ that will remain irrespective of the outcome of this case:
‘while it is accepted a decision to refuse the visa will carry an emotional toll on the applicant and her children, the Minister submits that there is no evidence to support a finding that such a decision will have a significant impact upon their work, education or ability to subsist. For this reason, the Minister submits that this consideration ought not weigh against visa refusal to an extent that would overcome the primary considerations that favour refusal.’
Tribunal findings: Impact on family members
The Tribunal accepts that Ms Dougherty and Mr Klaithin commenced a relationship in early 2016 and moved in together in or about December 2016. They were engaged in June 2017, two months prior to the expiration of Mr Klaithin’s visa and his return to Thailand in August 2017. The Tribunal accepts that Ms Dougherty visited Mr Klaithin in Thailand in late 2017 with her children and parents, and in January 2019 by herself. The couple have since conducted their relationship through frequent telephone and video calls. Ms Dougherty and her family have also contributed financially to Mr Klaithin in Thailand and in pursuit of his aspiration to return to Australia.
The Tribunal accepts that an adverse decision in this matter will result in continuing separation between Ms Dougherty and Mr Klaithin, which will cause significant emotional impact on Ms Dougherty in particular. Both Ms Dougherty and Mr Klaithin said their relationship would continue and Mr Klaithin said he would reassess how to best to achieve their plans for a life together. Ms Dougherty’s parents are also likely be disappointed and emotionally affected, although there is no persuasive evidence of any practical hardship.
The Tribunal accepts it may be difficult for Ms Dougherty to visit Mr Klaithin frequently, but there is no evidence about her financial circumstances beyond the Court orders dated March 2018, which provide for the transfer of assets from her ex-husband after their divorce. Moreover, the evidence shows that Ms Dougherty and her family have supported Mr Klaithin financially. Mr Klaithin refers to Ms Dougherty in his written evidence as ‘wealthy,’ and that she ‘pays off everything’ for him because he does not have any money.[75] The two visits Ms Dougherty has undertaken to Thailand since late 2017 suggest some future visitation remains possible.
[75] Ibid, 102 (final paragraph).
On balance, the Tribunal finds that ‘Impact on family members,’ particularly on Ms Dougherty, weighs moderately in favour of granting the visa.
Other Considerations
No additional considerations were advanced, nor has the Tribunal identified any additional ‘other considerations’ relevant to the specific circumstances of this application, as provided for at cl 12(1) of the Direction.
CONCLUSION
Mr Klaithin does not pass the character test. In determining how the discretion in s 501(1) of the Act should be exercised, the primary and other considerations at Part B of the Direction were applied to the specific circumstances of his case. The Tribunal concludes there is no reason to depart from the guidance in the Direction that primary considerations should generally be given more weight than other considerations.
Of the considerations weighing in favour of visa refusal, Mr Klaithin represents a low but real risk of reoffending. The Australian community has a low tolerance of visa applicants who commit crimes, who fail to disclose relevant information to immigration authorities, and who have participated in and contributed to the Australian community for a relatively short period of time. Having regard for the totality of Mr Klaithin’s offending and other conduct, the community would expect his visa application to be refused.
Of the countervailing considerations weighing in favour of granting the visa, Mr Klaithin has some relationship with Ms Dougherty’s two children, but it is non-parental in nature and characterised by a long period of absence and limited meaningful contact since he returned to Thailand in 2017. Moreover, the children have biological parents who equally share their care and other caregivers such as their grandparents. The Tribunal acknowledges, however, that an adverse decision in this matter is likely to cause Ms Dougherty significant emotional distress and crystallise difficult personal choices for the couple about the future direction of their relationship.
Having weighed the relevant considerations individually and cumulatively, the Tribunal finds that the discretion to refuse Mr Klaithin’s visa should be exercised. That is because the primary consideration ‘Protection of the Australian community’ weighs slightly in favour of refusal and ‘Expectations of the Australian community’ weighs moderately in favour of refusal. These outweigh the other primary consideration ‘Best interests of minor children,’ which weighs slightly in favour of granting the visa, and Impact on family members, which weighs moderately in favour of granting the visa.
DECISION
It follows that the Tribunal affirms the decision under review.
I certify that the preceding 101 (one hundred and one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC
………………………………….
AssociateDated: 12 January 2021
Date of hearing: 1 and 2 October 2020 Counsel for the Applicant: Ms Roz Germov Solicitors for the Applicant: MP Migration Law Advocate for the Respondent: Mr Adrian Downie Solicitors for the Respondent: Minter Ellison Lawyers
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