Elabadage Fernando (Migration)

[2021] AATA 4133

Elabadage Fernando (Migration) [2021] AATA 4133 (9 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ashan Chathuranga Elabadage Fernando

CASE NUMBER:  2017687

HOME AFFAIRS REFERENCE(S):          BCC2020/2613055

MEMBER:Denis Dragovic

DATE:9 August 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 09 August 2021 at 1:50pm

CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – ground for cancellation – risk to safety of Australian community or individual – charged with criminal offences – child abuse material – consideration of discretion – serious charges with the potential of a substantial long-lasting impact on victims – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116

Migration Regulations 1994 (Cth), r 2.43

CASES
Gong v MIBP [2016] FCCA 561

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 December 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e) on the basis that the applicant was charged with two counts of ‘involving a child in the production of child abuse material’, two counts of ‘possess child abuse material’ and two counts of ‘distributing child abuse material’. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant was first invited to appear on 11 February 2021. A request for a hearing postponement was received based upon a court date set for the 1 April 2021. The request was accepted, and the hearing was postponed. A new date was set for the 19 April 2021. On 13 April 2021 a request was received by the Tribunal for a further postponement based upon the applicant’s representative in his criminal matter requesting an adjournment as explained in an email to the Tribunal:

   We confirm that Mr Michael Cunningham from this office appeared on your behalf in the Ringwood Magistrates' Court on 01 April 2021 for the purposes of a Mention Hearing.

   Mr Cunningham advised the Court that the defence had taken your instructions in relation to the further charges, but was seeking an adjournment of your matter to allow further time to engage in discussion with the prosecution, as the charges had only been recently served.

   Accordingly, your matter was adjourned for Further Mention before the Ringwood Magistrates' Court on 17 May 2021 at 9:30 AM. You must appear at this hearing.

4. The applicant’s case was postponed with no date set. On the 25 May a further letter was received explaining that the matter in the Ringwood Magistrates Court was again postponed until 15 September 2021. At this stage the Tribunal refused further postponing the case and set down a hearing for the 2 July 2021.

5. The applicant was invited to appear before the Tribunal on 2 July 2021 to give evidence and present arguments. The applicant did not appear on this date. An email was received from the applicant’s representative on the day before the day of the hearing informing the Tribunal that at the time the applicant had not confirmed to the representative whether he would be attending or not. The representative added in the same email that if he does not appear that the representative agrees for a decision to be made on the papers or for the hearing to be deferred until after the applicant’s court case is heard.

6. The purpose of the review at the Administrative Appeals Tribunal is not to consider whether the applicant is guilty of a crime but rather whether the statutory grounds for cancellation are met and if so, whether the discretionary elements are sufficient to out weight the reasons for the cancellation. To do this it is not necessary to wait until after a court has assessed the guilt or innocence of an applicant: Gong v MIBP [2016] FCCA 561 at [45]). Noting that the Administrative Appeals Tribunal Act 1975 outlines the Tribunal’s objectives including to be ‘economical, informal and quick’ and that the applicant’s pathway through the courts could be lengthy I decided to proceed to hear the case.

7. The applicant’s presence at a hearing was requested to engage with the evidence. He chose not to attend. As I have not accepted the request for postponement and given that s 362B(1A)(a) allows for circumstances where the applicant does not appear at a hearing by providing the Tribunal the authority to proceed to ‘make a decision on the review without taking any further action to allow or enable the applicant to appear before it,’ I have decided to proceed to make a decision based upon the evidence available.

8. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(e)(i) which reads:

   (e)      the presence of its holder in Australia is or may be, or would or might be, a risk to:

   (i)       the health, safety or good order of the Australian community or a segment of the Australian community; 

10. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

11. A visa may be cancelled under s.116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].

12. Contained in the delegate’s decision, which was provided to the Tribunal by the applicant, was a description of evidence against the applicant given by Victoria Police to the Department. The relevant section in the delegate’s decision states:

    Victoria Police allege at the start of 2020 the visa holder was purporting to be a 16 year old male and was making contact with adolescent females via social media. After a few days the visa holder would request these females send him nude images of themselves. The majority of females would deny these requests however Victoria Police allege they are aware of two females aged 13 and 15 years who complied. It is alleged the visa holder would continue to harass these girls for nude images before escalating his requests to incorporate acts of masturbation. In both instances the girls have then blocked the visa holder’s social media account.

    After being blocked it is alleged the visa holder has again made contact with the girls on social media accounts created bearing their names and nude images. The visa holder is alleged to have threatened the girls to add him on snap chat otherwise he would on send these images to all the victims friends. It is alleged the visa holder would screen capture victims on-line friends as part of his threats. In both instances the girls have complied with the visa holder’s requests and in both instances he has sent on these images despite their compliance.

    Victoria Police executed a search warrant at the visa holder’s residence on 4 November 2020 where they seized a number of electronic devices including his mobile phone.

    It is claimed the visa holder denied the allegations during his record of interview until he was presented with overwhelming evidence where he made full admissions to ‘blackmailing’ these young girls.

13. The delegate’s record shows the applicant as having been charged with 2 x counts of ‘involving a child in the production of child abuse material’, 2 x counts of possess child abuse material and 2 x distributing child abuse material. The applicant’s case has not, as of the date of this decision, been finalised in court.

14. In considering whether the applicant is or may be a risk to the health, safety or good order of the Australian community or a segment of the Australian community I note the guidance offered by Smith J in Gong v MIBP [2016]:

    What has occurred in the past can have a logical bearing on what might happen in the future. Thus, the fact that a person has engaged in certain conduct might affect the probability that he or she will engage in that conduct again in the future. Similarly, where the statute asks whether there “may be a risk”, the possibility that something occurred in the past may have some logical bearing on the answer to that question.

15. The charges laid by the police against the applicant open the possibility (as his guilt has not been proven) that the alleged actions could give rise to similar actions by the applicant in the future which would carry repercussions to others. What the likelihood of these future actions are and the repercussions to others is, in part, informed by research.

16. Academic literature has examined recidivism among chil exploitation material (CEM) offenders:

    Rates of reoffending following the detection of a CEM possession offence vary according to the type of offence examined and the length of follow-up. For example, Seto and Eke (2005) found that over an average follow-up period of 2.5 years, 3.9 percent of CEM offenders committed another CEM offence and 1.3 percent committed a contact sexual offence. Faust et al. (2015) found that 1.6 percent of CEM offenders were arrested for a further CEM offence within an average follow-up period of 4.8 years. Over the same time span, 3.0 percent were arrested for a contact sexual offence. Seto and Eke (2015) found that seven percent of those who solely committed CEM offences committed a further CEM offence—that is, they were charged or convicted—within five years. Three percent were charged with or convicted of a contact sexual offence within that time span. Over a six-year follow-up, Endrass et al. (2009) found that 2.6 percent of CEM offenders committed a further CEM offence and none committed a contact child sexual offence.

    Taken together, these findings show that over follow-up periods that vary from 2.5 years to six years, the proportion of CEM only offenders who commit a further CEM offence ranges from 1.6 to seven percent. Further, the meta-analysis by Seto, Hanson and Babchishin (2011) found that, over a follow up period of between 1.5 and six years, 3.4 percent of online offenders committed a further CEM offence and 2.0 percent committed a contact sexual offence. There is some evidence to suggest that rates of reoffending by CEM only offenders are generally lower than those of contact sexual offenders (Eke, Seto & Williams 2011; Seto & Eke 2015, 2005).[1]

    [1] Brown R & Bricknell S 2018. What is the profile of child exploitation material offenders?. Trends & issues in crime and criminal justice no. 564. Canberra: Australian Institute of Criminology. >

    This research suggests that up to seven percent of CEM offenders were caught re-offending by committing CEM offences and up to 3 percent were charged with a contact sexual offense.

17. Scholarship indicates that, ‘not all children exposed to similar experiences of abuse and neglect are affected in the same way. For some children and young people, the effects of child abuse and neglect may be chronic and debilitating; others may experience less adverse outcomes.’[2] Other research describes child pornography as ongoing abuse leading to ongoing vulnerability of survivors and could in some situations be long lasting.[3]

    [2] Australian Institute of Family Studies, ‘Effects of child abuse and neglect for children and adolescents’, CFCA Resource Sheet, 2014 Ateret Gewirtz-Meydana, Wendy Walsha, Janis Wolaka, David Finkelhor, ‘The complex experience of child pornography survivors’ in Child Abuse and Neglect, Issue 80, 2018

18. The research was provided to the applicant by way of written correspondence and an invitation to comment. No response was received.

19. While noting that the applicant has been charged but not found guilty and based upon the rate of recidivism among perpetrators of similar types of offences as those the applicant is alleged to have undertaken, I find that the applicant’s presence in Australia may lead to the applicant in the future committing acts of the kind he is accused of having perpetrated. This may expose a segment of the Australian community to risk.

20. For this reason, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(i) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

21. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the departmental policy ‘General visa cancellation powers’.

22. The applicant did not provide a response to the NOICC nor did he make any submissions through his representative to the Tribunal. He also chose not to attend the hearing. As such there is limited available information that engages with the discretionary elements.

    the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

23. The applicant’s visa application history available to the Tribunal through the delegate’s decision record indicates that the applicant’s visa application was a dependent visa accompanying his spouse who had lodged a Student visa on 23 September 2020.

24. At the time of the delegate’s decision it would have been reasonable to assume that the purpose of the applicant’s stay in Australia was to remain in the community with his wife while the Australian government finalises her student visa application. But information available to the Tribunal shows that the applicant’s student visa application was withdrawn on the 17 June 2021 while his wife’s visa was granted on the 18 May 2021. This led the Tribunal to write to the applicant seeking clarification.

25. On 15 July 2021 a s 359A letter was sent to the applicant with the following adverse information:

    Information available to the Tribunal shows that your student visa application was withdrawn on 17 June 2021 following the grant of your wife’s visa on 18 May 2021. This suggests your wife no longer supports your visa application to stay in Australia. Please confirm if our understanding is correct.

26. In response, a letter from the applicant’s wife was received after the prescribed period for which a response was required. Despite the submission being outside of the timeframe I have accepted it. The relevant passage in the letter is:

    It was a hard decision to make and I had to take this decision according to the advice of department of immigration who were going to refuse both visa applications if he was not withdrawn. However, I’m happy to support Ashan Fernando to stay in Australia financially and emotionally. We do not have an ongoing relationship due to the circumstances and I have already applied for legal separation from Ashan Fernando which has nothing to do with his charges and the current situation.

27. Based upon this information, the original purpose that the applicant had to remain in Australia is no longer present, he is no longer the husband of the visa applicant and they are no longer in an ongoing relationship. Based upon the evidence before me the only reason for the applicant to remain with respect to his wife who is the primary visa applicant is that, according her statement, ‘he is the only person I have to support me for my education financially.’

28. Recognising that education is expensive in Australia but noting that this is the only reason for the applicant to remain, I give limited weight against cancelling the applicant’s bridging visa.

    the extent of compliance with visa conditions

29. There is no information before me that the applicant has not complied with his visa conditions. This being a bare minimum expectation of all visa holders I place little weight against cancelling the applicant’s visa.

    degree of hardship that may be caused (financial, psychological, emotional or other hardship)

30. I accept that cancellation of the applicant’s visa will place the applicant on a pathway of first being detained and then deported and as such separated from his spouse. However, according to the letter submitted by the applicant’s spouse, they are no longer in an ongoing relationship and she has begun proceedings to separate. As such the degree of hardship that would otherwise arise from separation is lowered.

31. I accept that by being detained the applicant will be separated from friends in the community for which I place limited weight without any further information being made available as to the nature of the friendships.

32. No other information was provided regarding the applicant’s circumstances and how cancellation of his visa would impact him.

33. With regards to the hardship cancellation would impose on the applicant’s wife, as noted, she is separating from the applicant. While they remain a married couple on paper, based upon the available information, for all intents and purposes it is clear that they are no longer a family. Nevertheless, I acknowledge the hardship the applicant’s wife will face as a result of not having the additional financial support that her husband may provide if his visa is not cancelled.

34. There is no evidence before the Tribunal to suggest that other individuals will encounter hardship as a result of the applicant’s visa being cancelled.

35. When considered overall, noting the conclusions above I place minimal weight against cancelling the applicant’s visa.

    circumstances in which ground of cancellation arose.

36. The applicant has not provided any information regarding the circumstances that led to him being charged with child sexual abuse. I note that he has been recorded as admitting guilt but in subsequent correspondence it is inferred that he would fight the charges. The circumstances of his actions are unknown and as such I place no weight on this element.

    past and present behaviour of the visa holder towards the department

37. There is no information before me that the applicant has not complied with his visa conditions. This being a bare minimum expectation of all visa holders I place little weight against cancelling the applicant’s visa.

    whether there would be consequential cancellations under s.140

38. There is no evidence before the Tribunal that there would be any consequential cancellation and as such, I place no weight on this element.

    whether there are mandatory legal consequences

39. As a result of the visa being cancelled the applicant would become an unlawful non-citizen and be liable for detention and removal.

40. Prior to removal the applicant may appeal any decision to cancel his visa at the Federal Circuit Court of Australia, which would lead to him remaining in detention in Australia until his case is finalised. The process by which a decision on whether the applicant remains in detention or is granted ‘community detention’ is outlined in the Department’s procedural manual, PAM 3. There are guidelines for recommendations to the Minister for non-citizens to be considered under s 197AB as eligible for a Residence Determination.[4] Among the list of circumstances under which cases should ‘generally not be referred’ to the Minister for consideration includes: ‘where a person has been charged with an offence but is awaiting the outcome of the charges or is under active investigation by an agency responsible for law enforcement in Australia.’ The guidance also provides a list of public interest criteria which the Minister will take into account of which some apply to the applicant. Overall, based on the Department’s PAM 3 I find that the applicant would be detained and not granted community detention and as such give some weight against cancelling the visa.

    [4] PAM3: Act - Compliance and Case Resolution - Case resolution - Minister’s powers - Minister’s residence determination power

1. A further mandatory legal consequence of cancellation is that the applicant is prevented from making valid visa applications (s 48). This will lead to the applicant not being able to make any lawful visa applications or be issued any further visas other than those prescribed or alternatively the Minister intervenes to lift the bar. Of the prescribed substantive visas, none offer a pathway for which the applicant is eligible other than a protection visa.

2. The cancellation of the applicant’s visa will lead to him being unable to meet PIC4013 which is a public interest criterion that applies to some visas and includes a bar preventing application for three years from the date of cancellation.

3. Although the applicant is subject to a bar preventing further applications and is limited to certain visas this is not an onerous burden as there is no indication that the applicant has pursued a pathway to obtain any other visa. I note, though, that the applicant would be barred from applying for most visas for a period of three years and that were he to appeal a cancellation he would remain in detention. Collectively I place some weight against cancelling the visa for these reasons.

   whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

4. The applicant has not made any claims that would suggest that by cancelling his visa it would place Australia in breach of its non-refoulement obligations. If the applicant holds reasons to fear return to his country, he can apply for a protection visa. As such I place no weight on this element.

5. There is no evidence to suggest that the applicant has children.

   any other relevant matters

6. The applicant has been charged with child sexual offences. These are serious charges with the potential of a substantial long-lasting impact on victims as the independent information presented earlier in this decision shows. The charges arose from the material gathered by the police and the applicant’s admission. While the courts are yet to determine the applicant’s guilt, I place substantial weight in favour of cancelling the applicant’s visa on the basis that there are charges of a serious nature and the nature of the crime presents a very high risk to a segment of society.

7. Considering the circumstances as a whole, including the charges laid by the police of a serious nature and turning my mind to the weightings given above, I conclude that the visa should be cancelled

   DECISION

8. The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

   Denis Dragovic
   Senior Member