Engelina and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2024] AATA 965

Engelina and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 965 (27 March 2024)

Division:GENERAL DIVISION

File Number(s):      2024/0160

Re:Selfiana Engelina

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:  27 March 2024

Place:Sydney

The decision under review is set aside and remitted to the respondent for reconsideration with a direction that the discretion in subsection 501(1) of the Migration Act 1958 (Cth) to refuse to grant the visa is not to be exercised.

..........................[SGD]..............................................

Senior Member A Poljak

Catchwords

MIGRATION – Cancellation of Skilled (Provisional) (Class VC) visa under subsection 501(2) – where applicant does not pass the character test – applicant has substantial criminal record – whether the discretion under section 501(1) should be exercised – consideration of Ministerial Direction No. 99 – decision under review is set aside

Legislation

Migration Act 1958 (Cth)

Secondary Materials

Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member A Poljak

27 March 2024

1. Ms Selfiana Engelina, the applicant, is a citizen of Indonesia. The applicant first arrived in Australia on 18 January 2011. On 12 November 2012, the applicant returned and lived in Indonesia. She returned to Australia on 14 July 2014 and married her husband, a citizen of Indonesia on 16 February 2015. On 10 January 2017, the applicant applied for a Skilled (Provisional) (Class VC) visa (the visa).

2. On 20 June 2016, the applicant commits the offences of deal with money it being reasonable to suspect that such money was proceeds of crime and at the time of dealing the amount of the money was less than $100,000 contrary to s400.9(1A) of the Criminal Code (Cth)(Law Part Code 71333). On 29 September 2017, the applicant is convicted in the Dowling Centre District Court of Cth-dealing with property reasonably suspected of being proceeds of crime and is sentenced to 12 months imprisonment released forthwith on entering recognisance $500 and entering into a 2-year good behaviour bond.

3. On 24 March 2020, the applicant was notified by the Department of Home Affairs that it was intending to consider refusal of her application for the visa under subsection 501(1) of the Migration Act 1958 (Cth) (the Act) on the basis that it reasonably suspected the applicant did not pass the character test because of her "substantial criminal record". The applicant was invited to comment.

4. In 2021, the applicant and her husband had a minor child who is presently three years of age (Child A). Child A is listed as a dependant to the visa.

5. On 8 December 2023, a delegate of the Minister exercised their discretion to refuse to grant the applicant the visa under subsection 501(1) of the Act (visa refusal). This is the decision under review in these proceedings (decision under review).

   Issue

6. The applicant does not pass the character test by virtue of her sentence of imprisonment for the offending conduct: subsections 501(6)(a) and 501(7)(c) of the Act. The determinative issue for determination is whether to exercise the discretion in subsection 501(1) of the Act to refuse to grant the visa, which requires consideration of the primary and relevant other considerations prescribed by Direction 99.

   Relevant Legislative Provisions

7. Under subsection 501(1) of the Act, the delegate of a Minister administering the Act may refuse to grant a person’s visa if the delegate of the Minister reasonably suspects that the person does not pass the character test, and the person does not satisfy the delegate of the Minister that the person passes the character test. Subsection 501(6) defines the character test.

8. Relevantly, a person does not pass the character test if the person has a “substantial criminal record” as defined by subsection 501(7). Paragraph 501(7)(c) provides that for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

9. In considering whether to exercise the discretion in subsection 501(1) of the Act, the Tribunal is required by subsection 499(2A) of the Act to have regard to the Minister’s Direction, Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99).

10. The preamble to Direction 99 provides a framework for the guidance of decision-makers. Paragraph 5.1 of Direction 99 comprises a statement of objectives. Paragraph 5.2 sets out 'principles' that should inform the decision-makers exercise of discretion:

    (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) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    (5) With respect to decisions to refuse, cancel and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

    (6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

11. Where the discretion to refuse to grant a visa on character grounds is available, then, informed by the principles in paragraph 5.2 of Direction 99, the decision-maker must take into account the primary considerations in paragraph 8 of Direction 99, in deciding whether to refuse to grant a non-citizen's visa.

12. Paragraph 8 of Direction 99 identifies the five 'Primary considerations', which the Tribunal must consider. They are (paragraph 8(1)-8(5)):

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

    (b)whether the conduct engaged in constituted family violence;

    (c)the strength, nature and duration of ties to Australia;

    (d)the best interests of minor children in Australia; and

    (e)expectations of the Australian community.

    (f)Paragraph 9 identifies other considerations which must be taken into account. Those other considerations listed are non-exhaustive, and are as follows (paragraph 9(1)):

    (i)legal consequences of the decision;

    (ii)extent of impediments if removed;

    (iii)impact on victims; and

    (iv)impact on Australian business interests.

    Considerations

    Protection of the Australian community from criminal or other serious conduct

13. The Tribunal must have regard as a primary consideration to the protection of the Australian community from criminal or other serious conduct. In this respect, paragraph 8.1(1) of Direction 99 states as follows:

    When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

14. Paragraph 8.1(2) of Direction 99 provides that 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.

    Nature and seriousness of the applicant's conduct

15. The applicant’s offending conduct involves a conviction for Cth-dealing with property reasonably suspected of being proceeds of crime. The applicant entered a plea of guilty for the offence and was sentenced to a term of imprisonment for 12 months, released forthwith on entering recognisance $500 and entering into a 2-year good behaviour bond. There are no sentencing remarks available nor an agreed fact sheet, as such the facts accepted by the Court on conviction and sentencing are unknown. However, I do accept that the applicant’s offence plainly involved the applicant dealing with property reasonably suspected of being proceeds of crime.

16. In circumstances where the applicant received a 12-month term of imprisonment for her criminal offending, her offending should be considered serious offending.

17. Should the applicant re-offend in the same manner as her prior criminal offence, this may cause financial harm to the Australian community.

    Risk of Reoffending

18. For the following reasons, I am of the view that the applicant has a low risk of reoffending.

19. The applicant’s criminal offending was an isolated event which occurred in 2016. She has no other criminal convictions.

20. At hearing, the applicant expressed sincere remorse for her involvement in the offence and did not attempt to minimise her involvement.  In her written statement she said she carries a deep sense of shame for the criminal conviction that has disrupted my pursuit of my dreams in Australia. She claims to have embarked on a journey of self-improvement and accountability since her offending conduct and described how she now exercises more caution and asks questions before making decisions to ensure that her conduct is lawful.

21. The applicant advised at hearing that she did attend three to four sessions with a psychologist in 2023. There is no evidence before the Tribunal about these sessions however the applicant advised that she saw a psychologist to discuss numerous issues, including her offending conduct.

22. The respondent contends that as there is no evidence to demonstrate that the applicant has engaged with any rehabilitative programs or courses, or psychological support, to address her offending behaviour, it cannot be accepted that her risk of offending is low or negligible. This may very well be the case in circumstances where a persons offending conduct involved, for example, violence, drugs, or alcohol. However, in this instance, the offence of which the applicant was convicted is unusual in the sense that the property in her possession was “reasonably suspected” of being proceeds of crime. It appears that the applicant failed to exercise proper caution when dealing with the property, and it cannot be taken any higher as facts found by the sentencing Judge are not before the Tribunal. It is unclear what form of rehabilitation course the applicant could or should have engaged in given the nature of her offending conduct.

23. I also note that on 11 January 2018, corrective services approved the termination of the applicant’s supervision and requirement to report to corrective services despite still being subjected to her good behaviour bond until 28 September 2019. The applicant claims that this decision was made after a series of productive meetings and a thorough assessment, the corrective officer concluded that my low risk of reoffence.

24. Overall, this primary consideration weighs in favour of the discretion being exercised to refuse to grant the applicant the visa. Although not strongly.

    Family Violence

25. There is no evidence to indicate that this consideration applies. Accordingly, this consideration is neutral.

    Strength, nature and duration of ties to Australia

26. Paragraph 8.3 first directs attention to the impact of the decision on the applicant's family members and provides:

    (1) Decision-makers must consider any impact of the decision on the non-citizen's 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.

    (2) In considering a non-citizen's ties to Australia, decision-makers should give more weight to a non-citizen's ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

27. Paragraph 8.3(4) of Direction 99 requires that, in assessing this consideration, decision-makers must have regard to:

    (g)the length of tie the non-citizen has resided in the Australian community, noting that:

    (v)considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and

    (vi)more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and

    (vii)less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.

28. The applicant has lived in Australia for approximately 11 years, having arrived for the first time on 18 January 2011 at the age of 22. She returned to live in Indonesia from 12 November 2012 - 14 July 2014. Her first offence was committed in Australia on 20 June 2016, being 5 and a half years after the applicant first arrived in Australia and less than two years after she had returned to Australia to live.

29. The applicant has studied, worked, and attended Church while living in Australia. She began an Advanced Diploma of Accounting in 2011, which she completed in 2012. In 2014, the applicant advanced to a Bachelor of Business (Accounting).  She progressed extremely well in her academic studies.  An economics lecturer, Dr Yeon Kim has given a reference dated 15 September 2017, in which he recalls the applicant as a sincere, hardworking, and friendly person who kept good relationships with her classmates.

30. In 2015, the applicant began working with Infotech Professional Pty Ltd, an education provider for International Students.  She remained with them until July 2022.  She was recruited to the position of Marketing Officer and became a valuable employee, helping grow the business and reaching out to international students in four languages.

31. In 2017, the applicant completed her Professional Year Course and qualified as an accountant. In August 2022, she was recruited by Fuss Education Pty Ltd to her current position of Marketing manager. 

32. Plainly the applicant has succeeded in her education and professional life in Australia. She has impressed members of the Australian community as being bright and diligent. She has developed a positive professional reputation and connections.

33. The applicant has created a life and family for herself here in Australia. The applicant's husband and Child A currently reside in Australia. However, the evidence suggests that the applicant's husband and Child A are not Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. Rather, they are listed as dependants to the visa. Accordingly, the Tribunal is not required to consider these ties in respect of this consideration. Notwithstanding, I note that the impact on the applicant's husband and Child A if the decision under review is affirmed is that they, along with the applicant, will not be granted the visa and would therefore be required to return to Indonesia.

34. This primary consideration favours against exercising the discretion to refuse to grant the visa.

    The best interests of minor children in Australia affected by the decision

35. Paragraph 8.4(1) of Direction 99 requires the Tribunal to decide whether the cancellation is, or is not, in the best interests of minor children in Australia affected by the decision.

36. The applicant and her husband share a three-year-old daughter, Child A, who resides with them in Australia. Child A is listed as a dependant to the applicant's application for the visa. If the decision under review is affirmed and the applicant is returned to Indonesia, her husband and Child A will also be returned to Indonesia. As such, a decision to affirm the decision under review would not result in separation between Child A and either of her parents. In any event, I think it is imperative to consider the impact on Child A, should the applicant’s visa be refused.

37. The applicant practises a Christian faith as does Child A. Her husband was raised in an Islamic faith and is recorded as Muslim in the identity register in Indonesia. The applicant and her husband married in Australia in 2015. Her husband has converted from Muslim to the Catholic faith, having been baptised in March 2016. The applicant and her husband had a Catholic (religious) marriage ceremony in 2019 and continue to be practicing Catholics.

38. The applicant submits that it is in Child A’s best interests for the decision under review to be set aside as Child A will suffer discrimination in Indonesia because her parents' marriage is interfaith, and interfaith marriages are not recognised in Indonesia. As a consequence, Child A would be termed 'illegitimate' and would receive less legal protection and rights. The applicant also submits that Child A would be medically disadvantaged in Indonesia, because Indonesia does not have vaccines that are comparable to those available in Australia.

39. At hearing, the applicant explained that to register her marriage in Indonesia, they would first have to apply to change the identity register for her husband from Muslim to Catholic. To do this, the applicant said it would be very difficult due to the bureaucratic process. Additionally, she explained that the applicant’s mother-in-law no longer talks to her husband since they advised her of his conversion to Christianity. In order to change the identity register, the applicant’s husband is required to provide a number of original documents, including a letter from the head of the village. All of these documents would be very difficult to obtain as the applicant said her mother-in-law has the required documents in her possession and would be the one, as head of the family, to ask for the letter from the head of village. As the applicant’s mother-in-law is unsupportive of the applicant’s marriage and no longer talks to her or her husband, she said that it would be very difficult to obtain the documents needed. The same process of obtaining documents would be the same for registering the applicant’s marriage.

1. The applicant also said at hearing that even if they could obtain and provide all the required documents to change the identity register and to register their marriage, there is no certainty that the change of registration would be accepted. It is likely that they would need to go to Court to have her husband’s status changed.

2. The applicant further explained that not being able to register their marriage in Indonesia would directly affect Child A. She would have difficulties with school plus social stigma. The applicant said that interfaith marriage was also a barrier to participate in the Catholic community and her daughter may also be excluded.

3. Mr Herry Herry, an Indonesian native and Australian citizen, provided a character witness for the applicant and gave evidence orally at hearing. Relevantly to this primary consideration Mr Herry described that religion is a big problem in the Indonesian culture. He said that from his experience, it is very, very, very hard to convert from Muslim to other religion; does not accept someone to convert from Muslim; it would affect you a lot; and they are going to hate you. Mr Herry said that if the applicant and her husband were to return to Indonesia, everyone knows they are of different religions. They will face bullying and rumours. He said it may be possible to register a change in the identity register in Indonesia, but it would not be easy as the family will not agree.

4. The respondent relies on DFAT country information which states that:

   "Under Indonesian Law No.1 of 1974 concerning marriage (the 'Marriage Law'), both parties must hold the same religion, if not, one party must convert to the other religion…"

5. However, the remainder of the paragraph reads, Anecdotal evidence suggests that the process of converting to Islam is not a lengthy one. To start the process, speak with the Imam at the local mosque. Read in its entirety, the paragraph plainly supports conversion to Muslim, as it is the predominant religion in Indonesia.  

6. The applicant has provided a number of articles about interfaith marriages in Indonesia and discrimination of children born in interfaith marriages. While the sources and reliability of these articles are unclear, they do corroborate the evidence of the applicant and Mr Herry.

7. In addition to these concerns raised as a result of the applicant and her husband’s interfaith marriage, Child A may also face difficulty in Indonesia due to language barriers. At hearing, the applicant said that Child A has been identified as having speech delay and attends monthly speech pathology sessions. The applicant explained that due to Child A’s speech delay she was advised to only speak English with her and as such, Child A can only speak English. While basic English may be manageable in Indonesia, Child A would likely face some difficulties at school and socially, until she learns the local language. It is also entirely unclear whether speech pathology would be available for Child A in Indonesia.

8. As for vaccinations, the applicant contends that the usual vaccine schedule available in Australia to Child A would not be available in Indonesia. Child A requires her next round of vaccines at the age of four. To obtain these vaccines, the applicant said they would need to travel to obtain the vaccines, and they would be at their cost.

9. Overall, this primary consideration favours against exercising the discretion to refuse to grant the visa.

   The expectations of the Australian community

10. Paragraph 8.5 provides:

    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

    …

    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.

11. The applicant’s criminal offending plainly does not meet the expectations of the Australian community that as a non-citizen she will obey the laws of this country. I am satisfied that the Australian community would expect that the applicant should not hold a visa. This primary consideration weighs in favour of the discretion being exercised to refuse to grant the applicant the visa.

12. This primary consideration weighs in favour of the discretion being exercised to refuse to grant the applicant the visa.

    Other Considerations

13. Other considerations are set out in Direction 99, at paragraph 9(1). The considerations that are relevant in this case are the extent of impediments if removed.

    Extent of impediments if removed from Australia

14. Direction 99 provides, at paragraph 9.2, that:

    (1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    a) the non-citizen’s age and health;

    b) whether there are substantial language or cultural barriers; and

    c) any social, medical and/or economic support available to them in that country.

15. The applicant is a citizen of Indonesia, as is her husband and Child A. The applicant spent her formative years in Indonesia and there are no language barriers for her return. There is no medical evidence to demonstrate that the applicant suffers from any physical or mental health conditions.

16. The applicant has family in Indonesia, being her father, three brothers and their families. She said at hearing that her family now accept her husband and Child A. The applicant’s father speaks limited English and currently resides in the applicant’s house in Indonesia. 

17. As for the applicants work history, the applicant completed her junior and high school education in Indonesia and some tertiary education. The applicant has held some employment in Indonesia including work as a trading officer, personal assistant, and marketing manager. The applicant has continued her education and professional career in Australia.  At hearing, the applicant said that should she return to Indonesia, she may have trouble finding employment given her age and qualifications and described how she found it very difficult to find employment when she returned in 2012. It was only with the assistance of a friend, that she was offered work. The applicant said that as her marriage is not registered, she may not be able to access government services.

18. As already set out in these reasons, the applicant and her family will likely be impeded if they are returned to Indonesia by substantial cultural barriers because of the applicant's interfaith marriage. Additionally, the applicant explained that she may also face racism as the community is divided in “Indo-Indo” and “Chinese-Indo”. The applicant said that through her life experiences In Indonesia, as a Chinese-Indo, she faces racism.  

19. I consider that this factor weighs against the discretion being exercised to refuse to grant the applicant the visa.

    Decision

20. The primary considerations of the protection of the Australian community and, the expectations of the Australian community weigh in favour of exercising the discretion under subsection 501(1) to refuse to grant the applicant’s visa. I am not persuaded, that these outweigh the considerations of the best interests of minor children in Australia, the applicant’s strength, nature, and duration of ties to Australia and, the extent of impediments.

21. The decision under review is set aside and remitted to the respondent for reconsideration with a direction that the discretion in subsection 501(1) of the Migration Act 1958 (Cth) to refuse to grant the visa is not to be exercised.

61.     I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

.........................[SGD]...............................................

Associate

Dated: 27 March 2024

Date(s) of hearing:	13 March 2024
Counsel for the Applicant:	Mr P Berg, 2 Selborne Chambers
Solicitors for the Respondent:	Ms E Letcher-Boldt, Clayton Utz