Fabb and Minister for Immgiration and Border Protection (Migration)
[2016] AATA 894
•11 November 2016
Fabb and Minister for Immgiration and Border Protection (Migration) [2016] AATA 894 (11 November 2016)
Division
GENERAL DIVISION
File Number
2016/0820
Re
Michael Fabb
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member J Sosso
Date 11 November 2016 Place Brisbane The decision under review is set aside The discretion under section 501(1) of the Migration Act 1958 to refuse to grant Mr Fabb a Visitor (Class FA) Visa should not be exercised.
..........................[Sgd]..............................................
Senior Member J Sosso
CATCHWORDS
MIGRATION – refusal to grant a non-citizen’s visa on character grounds – applicant does not pass the character test – the protection of the Australian community from criminal or other serious conduct – expectations of Australian community –reasons why the original decision should be set aside
LEGISLATION
Migration Act 1958 ss 499, 501
CASES
Brown v Minister for Immigration and Citizenship [2009] FCA 1098; 112 ALD 67
Djalic v Minister for Immigration and Multicultural Affairs (2004) 139 FCR 488
Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238; 90 FCR 583
Sharma and Minister for Immigration and Border Protection (Migration) [2016] AATA 537
Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67
SECONDARY MATERIALS
Direction No.65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of visa under s 501CA
REASONS FOR DECISION
Senior Member J Sosso
11 November 2016
INTRODUCTION
This is an application for a review, pursuant to section 500(1)(b) of the Migration Act 1958 (the Act), of a decision of a delegate of the Minister for Immigration and Border Protection (the Respondent) dated 25 November 2015 to refuse to grant Mr Michael Fabb (the Applicant) a Visitor (Class FA) visa pursuant to section 501(1) of the Act (Exhibit 1 G5 p.76).
BACKGROUND
The Applicant is an 80 year old citizen of the United Kingdom.
On 25 March 2015 the Applicant lodged an application for a short stay visa (Exhibit 1 G3 p.5). The application was made on the basis that the Applicant proposed to stay in Australia for two weeks from 5-22 April 2015. In the section headed “Character declarations”, to the question: “Has any applicant ever been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?” the Applicant answered “No” (Exhibit 1 G3 p.12).
On 14 September 2005 the Applicant was convicted in the Woolwich Crown Court of abuse of trust, sexual activity with a child pursuant to the Sexual Offences Act 2003 (UK). The Applicant was sentenced to a three year conditional discharge, three year sexual offender notice and ordered to pay costs of 500 pounds (Exhibit 1 G6 p.82).
The offence related to the Applicant’s 9 year old step-granddaughter. The particulars of the offence were that the Applicant intentionally touched the child and the touching was sexual. The touching was a kiss.
The Applicant pleaded not guilty, but was convicted by a jury.
In the Statement of Reasons for Refusal of a Visa, the delegate found that the Respondent did not pass the character test by virtue of section 501(6)(e) of the Act. In exercising the discretion whether to refuse the Applicant’s visa application consideration was given to the Applicant’s criminal conduct, risk to the Australian community, best interests of minor children, expectations of the Australian community and the impact on family members in Australia. The conclusion reached by the delegate was as follows (Exhibit 1 G5 pp. 77-78):
“19. I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Migration Act and (2) all other evidence available to me, including evidence provided by, or on behalf of Mr FABB.
20. I am mindful of the principle that Australia has a low tolerance of criminal conduct by visa applicants, reflecting that there should be no expectation that they can remain in Australia.
21. Mr FABB has been convicted of a serious crime and he should accordingly expect to forfeit the privilege of entering Australia.
22. In reaching my decision, I concluded that Mr FABB represents a risk of harm to the Australian community which, though low, is still unacceptable and that the protection of the Australian community outweighed any countervailing considerations above, which are largely limited to possible disappointment by family here.
23. Having given full consideration to all of these matters, I decided to exercise my discretion to refuse to grant Mr FABB’s application for a Visitor (Class FA) visa under s501(1) of the Migration Act.”
The Applicant was one of seven children born into a poor but happy family. He had no difficulties at home or school and after finishing college commenced employment with British Rail (Exhibit 4 paras 1.2 – 2.3). He established his own business when he was 27 as a fastenings distributor, later establishing another business manufacturing special bolting products for the oil and gas industry (Exhibit 4 para 2.3). The Applicant, despite business booms and busts, continues to work even into his late years. From the age of 68 he ran his own business as a mortgage broker, and continued to trade until 2012 when he was 76 years of age. He is currently engaged in the business of buying and selling second hand cars. (Exhibit 4 para 2.6).
The Applicant’s first marriage lasted 25 years, and three sons were born. His sons are now 52, 50 and 48 years of age respectively (Exhibit 4 para 3.2). Two of the sons live in the United Kingdom and the third in Brisbane. Five grandchildren live in the United Kingdom and two in Brisbane.
The Applicant lived with his second wife, the grandmother of the child the subject of the criminal charge, for twelve years. They separated in 2014, but remain on good terms. (Exhibit 4 para 3.4).
The Applicant currently lives in a rented house and is debt free (Exhibit 4 para 2.6).
The Applicant had no criminal history prior to 2005 and has recorded no criminal convictions since 2005. The Applicant does not smoke tobacco and has no history of alcohol dependence or use of any illicit substances (Exhibit 4 para 5.1).
The Applicant visited Australia for two weeks in April 2008 to attend his middle son’s wedding in Brisbane (Exhibit 4 para 3.8).
The Applicant disclosed in his Incoming passenger card, at that time, that he had a criminal conviction (Exhibit 1 G6 p. 79). He was cleared to enter Australia, and the DIBP Inspectors Report (Exhibit 1 G6 p.81) states as follows:
“PAX STATED HAD A CONVICTION AND PROVIDED A UK ‘POLICE CERTIFICATE FOR IMMIGRATION PURPOSES’ DATED 20/3/08 WITH THE FOLLOWING CONVICTION RECORDED AGAINST PAX:
140905 SEXUAL ACTIVITY WITH FEMALE UNDER 13 AND SENTENCED TO CONDITIONAL DISCHARGE 3 YEARS PLUS COSTS.
ICSE SYSTEMS SHOWS PAX DECLARED CONVICTION ON VISA APPL’N.
CONVICITONS DO NOT BREACH VISA CONDITION 8258 (THE HOLDER MUST NOT HAVE ONE OR MORE CRIMINAL CONVICTIONS, FOR WHICH THE SENTENCE OR SENTENCES ARE FOR A TOTAL OF 12 MONTHS DURATION OR MORE…) AND THEY ARE NOT CONSIDERED TO BE OF A SERIOUS NATURE THAT WARRANT CONSIDERATION UNDER S501 CHARACTER PROVISIONS / VISA CANX UNDER S116(1)(E)
IN VIEW OF ABOVE FINDING PAX IMMIGRATION CLEARED.”
The Tribunal was presented with a psychiatric report prepared by Dr Thirumalai, a consultant forensic psychiatrist. Dr Thirumalai stated that the Applicant presented with no history of any serious physiological or psychiatric conditions (Exhibit 4 paras 6.1 – 6.4). He had no history of being a victim of child sexual abuse, had no evidence of suicidal ideation, no relationship problems, no employment problems and no history of violent or sexual offending. Dr Thirumalai stated (Exhibit 4 para 8.11):
“There is no clear history of supervision failures. He complied with his conditions imposed and signed on the sex offenders register until 2008.”
Dr Thirumalai thoroughly examined the Applicant in relation to the risk of sexual reoffending and concluded (Exhibit 4 para 8.21): “I would estimate his risk of reoffending to similar nature to be low in the future.”
Dr Thirumalai concluded his report with the following comments, which are set out in full below (Exhibit 4 paras 9.1 - 10.6):
“9.0 PSYCHIATRIC EXAMINATION
9.1Mr Fabb presented as a well kempt polite thinly built and who looked much younger for his age. He was not evasive during the interview. I was able to establish reasonable rapport and eye contact. There was no evidence of any abnormal movements. There was no evidence of any self-neglect.
9.2Mr Fabb described his mood as ‘alright’. He denied having any suicidal thoughts. He reported a stable sleep pattern. His appetite and weight were reasonable. On assessing his speech, it was coherent and well directed.
9.3On assessing his thought processes, there was no evidence of disorder of form of thought. His grammar and syntax were intact. There was no evidence of any ongoing psychotic phenomena. He denied having any obsessive compulsions/cognitions.
9.4Cognitively, Mr Fabb was oriented to time place and person. His short-term and long-term memory appeared to be intact.
10.0 OPINION AND RECOMMENDATIONS
10.1 Mr Fabb is fit for travel to Australia.
10.2 Mr Fabb does not suffer from mental disorders.
10.3Mr Fab is generally fit and well. He is in the process of coming off the medications including Bisoprolol and Warfarin. He uses the support of hearing aids. He was able to travel on his own to the appointment with me.
10.4 Mr Fabb does not suffer from any mental health disorders/illness.
10.5Based on the risk assessment mentioned above, in my opinion Mr Fabb presents as a low risk of further reoffending in the future.”
LEGISLATION
Section 501 empowers the Minister, or the Minister’s delegate, to grant or cancel a visa if a person does not pass the character test. Consequently, the decision under section 501 involves a two-step process. First, to determine if the person has failed the character test, and, secondly, if the person has failed, to determine whether to either exercise the power to refuse to grant or cancel the visa – Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67 at [16] per Edmonds J.
Subsection 501(6) sets out the grounds for failing the character test. Subparagraph 501(6)(e) provides that a person fails the character test where a court in Australia or a foreign country has:
(i)convicted a person of one or more sexually based offences involving a child; or
(ii)found a person guilty of such an offence, or found a charge proved, even if the person was discharged without a conviction.
Section 499 of the Act provides that the Minister may give directions about the exercise of functions or powers under the Act. Direction No. 65, which came into operation on 22 December 2014, provides guidance on, inter alia, the refusal or cancellation of a visa under section 501.
In paragraph 6.2 of Direction No. 65, under the heading “General Guidance”, it is stated: “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.”
Further, under the heading “Principles” are two paragraphs of particular relevance to this matter. First, subparagraph 6.3(3) states: “A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.” Second, subparagraph 6.3(6) states: “Australia has a low tolerance of any criminal or 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.”
A decision-maker is required to take into account the considerations outlined (in this matter) in Part B – primary considerations and other considerations, visa applicants – paras 11 and 12. How to weigh up the various considerations, both primary and other, is explained in paragraph 8.
The primary considerations in deciding whether to refuse a non-citizen’s visa are:
(a)the protection of the Australian community from criminal or other serious conduct;
(b)the best interests of minor children in Australia; and
(c)the expectations of the Australian community (para 11(1)).
The Direction states, in the context of protecting the Australian community, that there is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Consideration also needs to be given to the nature and seriousness of the non-citizen’s conduct and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – para 11.1.
The Direction focuses attention on the nature and seriousness of the conduct. Paragraph 11.1.1 directs the attention of decision-makers to a range of factors, but, of particular relevance to this matter, is that violent and sexual crimes are to be viewed seriously – para. 11.1.1(1)(a). Further, crimes against vulnerable members of the community, including minors, are serious – para 11.1.1(1)(b). Other matters of relevance include the sentence imposed, the frequency of the offending, the provision of false or misleading information, and, if the offence was committed overseas, it would be an offence in Australia – para 11.1.1(e) – (i).
The Direction also draws attention to the risk to the Australian community should the non-citizen commit further offences or engage in serious conduct - para 11.1.2. The general principle to be considered is that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases – para 11.1.2(1). A decision-maker should consider the risk of harm in the context of the purpose of the intended stay, type of visa being applied for and whether there are strong or compassionate reasons for granting a short-stay visa – para 11.1.2(4).
The best interests of minor children in Australia must be taken into account. A child must be under 18 years of age, and the nature and duration of the relationship of the child to the applicant must be weighed – para, 11.2.
The expectations of the Australian community must also be taken into account - para 11.3. The Australian community expects non-citizens to obey Australian laws while in Australia, and where there is an unacceptable risk that the applicant will breach this trust, then it may be appropriate to reject the visa application. Further, it may be appropriate to reject a visa application because of the nature of the character concerns or offences, because in such cases the Australian community would expect that such a person would not be granted a visa – para 11.3.
Under paragraph 12(1) other considerations must be taken into account, where relevant. These considerations include, but are not limited to:
(a) international non-refoulment obligations;
(b) impact on family members;
(c) impact on victims;
(d) impact on Australian business interests – paras 12.1 – 12.4.
A decision maker must take into account the primary and other considerations relevant to the individual case – para 8(1). Different considerations apply to cancellations of a visa and to the refusal to grant a visa to a visa applicant. A visa applicant should have no expectation that a visa application will be approved – para 8(1).
Primary considerations should generally be given greater weight than other considerations - para 8(4); and one or more primary considerations may outweigh other primary considerations - para 8(5).
When applying considerations (both primary and other) information and evidence from independent and authoritative sources should be given appropriate weight – para 8(2).
CONTENTIONS OF THE APPLICANT
The Applicant contends (Submission on Behalf of the Applicant (SBA) at paras 52 - 53) that whilst he was convicted of a crime of a sexual nature involving a child the offence was at the lowest end of seriousness because:
(a)he was found to have inappropriately kissed his then nine year old step-granddaughter;
(b)the offence was at the lowest end of seriousness as evidenced by a three-year conditional discharge;
(c)subsection 9(3) of the Sexual Offences Act 2003 (UK) provides that a person, on summary conviction, is liable to imprisonment for a term not exceeding 6 months or a fine, or both, and on conviction on indictment, imprisonment not exceeding 14 years. The sentence imposed on the Applicant was a 3 year conditional discharge and a 3 year sex offender’s notice plus costs;
(d)the fact that a term of imprisonment was not imposed, suggests that the Court undertook a risk assessment; and
(e)the conviction occurred more than 11 years ago and he has not engaged in any unlawful conduct since that time, which, it is contended, shows that there is no trend or likelihood of repeat offending.
As to the risk to the Australian community, it is contended that the risk of the Applicant reoffending is minimal because (SBA para 54):
(a)apart from the conviction involving his step-granddaughter, he has never engaged in any unlawful activity. Moreover, he is now 80 years of age, and the lapse of time since his conviction should be taken into account;
(b)in the opinion of his psychiatrist: “Mr Fabb presents as low risk of further reoffending in the future”; and
(c)he will be staying with his son for a short time, and has only applied for a visitor’s visa and has no intention of applying for any other visa.
The Applicant contends (SBA paras 55 – 58), in the context of the expectations of the Australian community, that he previously came to Australia in 2008 and has committed no offences while in Australia. His sole conviction was 11 years ago and he has not reoffended. There is, it is contended, no reason to assume that he is an unacceptable risk to the Australian community or that he will breach the trust of the Australian community. Reliance is also placed on the view expressed by his psychiatrist that he “would estimate his risk of reoffending to similar nature to be low in the future.”
Finally, it is contended (SBA para 63) that the impact of refusing to grant the Applicant a visa has been severe because he has not been able to visit his son and grandchildren who were devastated when the visa was refused.
CONTENTIONS OF THE RESPONDENT
Mr Dube, on behalf of the Respondent, contends (Respondent’s Statement of Issues, Facts and Contentions (RSIC) at para 17) that when considering the protection of the Australian community, the following factors are of primary significance:
(a)sexual crimes are viewed seriously;
(b)the offence was committed against a child, a vulnerable member of the community who was aged nine at the time of the offence;
(c)the Applicant ‘vigorously denied the charge’; and
(d)there is limited evidence available in relation to the Applicant’s likelihood of reoffending.
The Respondent further contends (para 19) that, with respect to the risk of reoffending, the Tribunal should have regard to:
(a)the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the future harm increases;
(b)the harm caused if the Applicant reoffends would be so serious that any risk to the Australian community is unacceptable;
(c)limited weight should be given to the evidence of the Applicant’s former UK solicitors regarding the National Guidelines for sex offense as those Guidelines were not in place at the time of his conviction.
It is further contended (RSIC at paras 20 – 21) that insofar as it is suggested that the Applicant’s grandchildren will be adversely affected by a refusal to grant a visa, less weigh should be given to this factor because:
(a)the relationship is not a parental one and other persons fulfil the parental role;
(b)as the Applicant resides overseas his role in his grandchildren’s lives is limited; and
(c)the applicant can maintain contact with his grandchildren in other ways.
Finally, the Respondent contends (RSIC para 22) that having regard to the nature of the Applicant’s behaviour and offence, the Australian community would expect that he should not hold a visa.
CONSIDERATION
It is clear from the authorities that the protection of the Australian community is central to the exercise of the discretionary power pursuant to section 501 - Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 488 at [16] per Tamberlin, Sackville and Stone JJ.
In properly exercising the discretion, the Tribunal must comply with the Directions made pursuant to section 499(2A) – Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583.
It is not contested the Applicant fails the character test in section 501(6) because he has been convicted of a sexually based offence involving a child – section 501(6)(e). However, the Tribunal still has a discretion to determine that a visa should be granted having evaluated the considerations outlined in Direction No. 65.
The first primary consideration to be evaluated is the protection of the Australian community – para 11.1.1(1)(a). As the Respondent highlights, the Applicant has been convicted of a sexual offence, and such crimes are viewed very seriously - para 11.1.1(1)(a). Further, the victim of the Applicant’s criminal conduct was a nine year old child, and a child who was his step-granddaughter. His crime not only involved a young person in a position of vulnerability (para 11.1.1(1)(b)), but also a minor who was entrusted to his care. Prima facie, a person who has been convicted of such a crime must be the subject of extremely careful review and consideration before a decision could be reached to allow them to enter Australia.
Compounding this, the Applicant vigorously denied the charge in question, was found guilty by a jury and continues to protest his innocence. In short, there is no evidence before the Tribunal of contrition.
The Applicant also provided misleading information in his Application for a Short Stay Visa by not disclosing his prior criminal conviction – para 11.1.1(1)(h).
As serious as those matters are, there are countervailing considerations that need to be taken into account when evaluating this consideration.
The Applicant has an unblemished record except for the conviction involving his step-granddaughter. He has no history of repeat offending, and there is no trend of increasing criminal conduct – para 11.1.1(1)(f) and (g).
The conviction recorded against the Applicant was at the lowest end of sentences that were available to the Court at that time – para 11.1.1(1)(e). The Applicant was not sentenced to a term of imprisonment and did not breach the order that was imposed on him.
The Applicant visited Australia in 2008. He disclosed that he had a criminal conviction on his Incoming Passenger Card (Exhibit 1 G6 p.79). Whilst in Australia he was not convicted of any offences. In short, since his conviction in 2005 he has visited Australia, freely admitted his criminal conviction and, apparently, posed no risk to the Australian community.
The Applicant explained in a letter dated 8 June 2015 why his visa application was inaccurate with respect to his previous conviction: so far as is relevant he said (Exhibit 1 G6 pp. 86-87):
“It was when making arrangements for my visit commencing April 4th this year that the current problems arose. My travel agent offered to apply for a visa on my behalf, which, due to the hasty arrangement being made, seemed to be the quickest way of proceeding. At that time I did not think about the problems encountered on my visit in 2008…I can see from a copy of that form that I declared that I did not have a previous criminal convictions (sic). This was not for any reason of intended deceit but simply to avoid delays in obtaining a Visa due to the time pressures at that time as well as the thought that any such record going back to 2008 may have been expunged from the records by this time. And although they remain may not have impeded my application for reasons set out in the immigration report set out above.”
Leaving aside what are possible inconsistencies, it is apparent that the Applicant is a 80 year old man who, understandably, would be ashamed of his criminal conviction, and thought, mistakenly, that he could avoid the issue. The omission of information concerning his conviction appears to be a case of mortification and shame, and not an attempt to mislead and deceive.
Finally, there is the critical issue of allowing a person to enter Australia with the likelihood of reoffending – para 11.1.2. In case of a sexual offender whose victim was a minor, this is an issue of great concern. Indeed, the Direction states that there is some conduct, and the harm caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.
Each matter has to be evaluated on the evidence presented, and it is not helpful to speculate about what type of conduct would fall within the purview of paragraph 11.1.2(1) such that any likelihood of repeat offending would require the granting of a visa unacceptable – para 11.1.2(1). However, I do not believe that the crime committed by the Applicant falls within this category. If his crime was of a more serious nature, involved physical harm to a minor and resulted in the imposition of a custodial sentence, together with a more equivocal psychiatric report and the application of a longer stay visa, then it may be that a view could be formed that such conduct fell within the wording of paragraph 11.1.2(1).
The Respondent contends that there is limited evidence about the Applicant’s likelihood of reoffending.
With due respect, that is not the case. The evidence of Dr Thirumalai is unequivocal and compelling. Dr Thirumalai concludes that the Applicant presents a low risk of reoffending.
The Applicant is an elderly man who has previously visited Australia and, from the uncontested material, committed no offences during that visit. The Applicant has only one recorded conviction, neither before 2005 or since has come to the attention of the authorities, is now in the last years of his life, and, ostensibly, poses little or no risk to the Australian community.
The Applicant’s son, Mr Richard Fabb, gave evidence at the hearing that his father, if allowed to visit Australia, will live with him and his family in Brisbane. He also stated that he did not have any concerns about his father staying with his family. Mr Richard Fabb is a senior academic and a man of mature years. I am satisfied that he is a responsible person whose testimony was sincere. I am also satisfied that if the Applicant was allowed to visit Australia he would be living in a safe and secure environment and be under the care of an attentive and responsible son.
In evaluating the risk to the Australian community, I have had regard to the following matters – para 11.1.2(3).
First, the nature of the harm to individuals or the community if the Applicant engaged in further criminal or serious conduct – para 11.1.2(3)(a). The Applicant’s crime was serious, was of a sexual nature and did involve a breach of trust. However, the crime was at the lowest end of the scale of crimes of that nature, was an isolated incident and involved no physical harm to the victim. Having regard to the Applicant’s age, positive psychiatric assessment, lack of reoffending and overall lack of criminal history, I consider the nature of harm he poses to the Australian community is extremely low, if non-existent.
Second, the likelihood of the Applicant reoffending – para 11.1.2.(3)(b) taken into account information and evidence from independent and authoritative sources – para 11.1.2(3)(b)(i), evidence of rehabilitation – para 11.1.2(3)(b)(ii) and duration of the intended stay in Australia – para 11.1.2.(3)(b)(iii).
As previously set out, Dr. Thirumalai concluded that the Applicant presented as a low risk of further reoffending, the Applicant complied with the terms of his sentence and has not since reoffended and he only applied for a short stay visa.
Decision makers are required to consider the risk of harm in the context of the intended stay, type of visa being applied for, including whether there are strong or compassionate reasons for granting a short stay visa – para 11.1.2(4).
The purpose of the visit, which will be short in duration, is so that the Applicant can see his grandchildren for the first, and possibly the last, time. His son is desperate for his father to see him, his wife and children, and the material before the Tribunal is that the cancellation of the visit last year was very upsetting to all members of the Applicant’s Australian family. While this consideration is not of great magnitude, it is a factor that needs to be given appropriate weight.
Overall, then, the first primary consideration, the protection of the Australian community, favours a decision to set aside the original decision not to grant the Applicant’s visa.
The second primary consideration is the best interests of minor children in Australia. Decision-makers must make a determination about whether the refusal of a visa is, or is not, in the interests of the child – para 11.2(1). A child has to be under 18 years of age – para 11.2(2). While the relationship with the child can be non-parental, less weight is given in such circumstances, and also where there is no existing relationship and/or long periods of absence and limited meaningful contact – para 11.2(4)(a).
The Applicant conceded that this consideration was not relevant – SBA para 14. The Applicant’s son, Mr. Richard Fabb, submitted a personal statement (Exhibit 2) which outlined the impact (from his perspective) of the refusal to grant his father a visa to visit him and his family. The Applicant relies on that statement in the context of paragraph 12.2, impact on family members, which is dealt with below.
The Respondent did not submit that this consideration was totally irrelevant having regard to the impact that the refusal to grant the visa was said to have on the grandchildren, but submitted (RSICpara 21) that less weight should be given to this consideration in circumstances where:
(a)The relationship is non-parental and there are other persons who fulfil a parental role in relation to the children;
(b)The applicant resides overseas and therefore would play a limited positive role in each of the children’s lives; and
(c)The applicant can maintain contact with the children in other ways.
I find that little weight can be given to this consideration for the reasons outlined by the Respondent. The Applicant is not the parent of the children in question, he has never met his grandchildren, his stay in Australia will be very short and he is not, and never intends to fulfil, a parental relationship with his grandchildren.
The third primary consideration is the expectations of the Australian community. This consideration draws the attention of the Tribunal to the truism that non-citizens are expected to obey the laws of Australia while a guest of this nation. The Direction provides (para 11.3(1)):
“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.”
There have been many cases that have considered these issues. I will not quote them, because each has elucidated a simple but fundamental proposition. There are instances where a crime or crimes is or are of such magnitude and turpitude that irrespective of any other considerations a person convicted of such crime or crimes should not be allowed either to enter or to remain in Australia. Then, there are the most common instances where past conduct must be weighed with present conduct to reach a conclusion which is consistent with the fundamental consideration of the safety of the Australian community. This is perhaps easy to express, but very difficult at times to achieve when a decision-maker has to weigh a multitude of considerations and evidence.
The Applicant is now at a very advanced age. He has raised a family and lived, based on the uncontested evidence, a good and productive life. He has worked all his life and has been, except for one incident, a normal, unexceptional and solid member of the British community. The stain on this otherwise unblemished life is a crime committed in 2005. A crime of a breach of trust with a young girl. A crime not of the highest magnitude, but a sexual crime committed by an old man who abused a position of trust, in a moment of great stupidity which has indelibly stained his reputation.
Should a person who in 80 years of life who has otherwise led a good and blameless existence be denied the opportunity of seeing his son and grandchildren, perhaps for the last time in his life, where there is no evidence before this Tribunal that he poses any real risk to the Australian community?
If there was material before the Tribunal that there was any risk of harm to any person, particularly any minor, by allowing the Applicant to enter this country, then his visa application would be rejected. The primary consideration of a decision-maker is the well-being of Australian citizens, and not the wishes or expectations of a non-citizen to come to, or remain in, Australia – para 6.3(6).
The Respondent contends that the nature of the Applicant’s behaviour and offence is such that the Australian community would expect that he should not hold a visa.
This contention is too sweeping: if accepted then a person convicted of any sexually based offence involving a child or vulnerable person would never be granted a visa. If that were the intention of the Parliament section 501 would provide for a mandatory cancellation. In the absence of a mandatory provision, the Tribunal is required to exercise its discretion, and it would be inconsistent with the exercise of such a discretion to assume that there is no discretion to exercise.
Conversely, the expectation of the Australian community is that a person who has been convicted of a sexual offence involving a child would, in the normal course, not be allowed to gain entry to Australia – Direction No 65 para 11.3. As was stated by Senior Member Fice in Sharma and Minister for Immigration and Border Protection (Migration) [2016] AATA 537, sexual offences against children are particularly abhorrent. The traumatic effect on children, even at a low level of offending, can be serious and long-lasting (at [47]).
My assessment of the Applicant, having considered all of the evidence, both oral and written, is that he would obey Australian laws. Clearly by not accurately completing his visa application he has not acted truthfully, however this must be viewed in the context that he correctlycompleted his incoming passenger details in 2008 and had no ulterior motive in failing to do so in March 2015 other than embarrassment.
The Applicant has previously been a guest of Australia and did not abuse the trust reposed in him when visiting. He poses little, if no, risk to the Australian community, and is a man of advanced years with, overall, an exemplary history as a citizen of the United Kingdom. In these circumstances, and weighing up all the material, I consider that the expectations of the Australian community weigh in favour of the Applicant obtaining a short stay visa.
Finally, the Tribunal must evaluate the other considerations outlined in paragraph 12 of the Direction.
In this matter there are no relevant international non-refoulment obligations, there is no evidence of any Australian victims of the Applicant’s criminal behaviour and there is no impact on Australian business interests following the grant or refusal to grant a visa – para 12.1, 12.3 and 12.4.
The only consideration of relevance is the impact on immediate family members who reside in Australia and who are Australian citizens, permanent residents or who have a right to remain in Australia indefinitely – para 12.2.
The Applicant’s son, Mr Richard Fabb submitted a personal statement which is dated 4 July 2016 (Exhibit 2). Mr Fabb said it was almost impossible for his family to visit his father in the United Kingdom because it would cost the family around $20,000 which they cannot afford. In comparison, the Applicant can visit Australia for around $1500. Further changes in the United Kingdom spouse visa rules make it impossible for the family to live in the UK as Mr. Fabb’s Australian wife cannot obtain a spouse visa. He also wrote:
“I would ask anyone who loves their parent to think how they would feel if they were told they might hardly ever – or possibly never – be able to see their parent again.
For this is what it comes down to. The decision to refuse my father a visa to enter Australia has made it almost impossible for me to see him and for my sons to see their grandfather…
And if hardship means more than just dollars and cents then there would be enormous emotional and psychological hardship. I have been utterly devastated by the decision….
My mother has since died, and had dementia, which prevented her coming to see us – and she died having barely any relationship with her grandchildren. My two sons, aged 5 and 7, have had very little contact with their paternal grandfather, when they could easily spend considerably more time with him were he able to stay with us in Brisbane. The official also indicated that there not evidence that my sons’ ‘best interests would suffer any significant harm if [their grandfather] is unable to visit Australia’. Again, I find this devoid of any consideration of basic societal norms. Most people would surely consider a relationship with their grandparents as being naturally important: part of figuring out who we are and where we come from. A sense of wider family, belonging, being loved, of history, and, in a country as multicultural as Australia, a sense of the wider world we have come from. What evidence could I offer to prove this of value and the absence of it is a loss? I only know what my relationship was with my grandparents and want the same for my children.”
The Respondent contends (RSIC para 25) that while it is accepted that the inability of the Applicant to visit his family in Australia could create logistic and financial difficulties this consideration does not outweigh the factors against granting the visa.
The negative impact, of refusing to grant a short stay visa to the Applicant, on his Australian family is a matter that weighs in favour of revoking the original decision to refuse to grant him a visa.
Overall, then, having considered both the primary and other considerations, I have come to the conclusion that the Applicant poses little or no threat or risk to the Australian community, and that an ordinary Australian having been presented with the evidence before the Tribunal would consider it appropriate that he be granted a short stay visa.
CONCLUSION
Australia has an extremely low tolerance level of any criminal conduct against minors and vulnerable persons. There is almost zero tolerance for a person convicted of a crime of a sexual nature against a minor. The Australian community expects that persons in authority and decision-makers would have at their primary and overwhelming consideration, the protection of the Australian community in general, and its children in particular. In exercising the discretion vested in decision-makers by section 501, it would be generally expected that a person who has been convicted of a sexual crime against a minor would forfeit the privilege of coming to, or staying in, Australia – Direction No. 65 para 6(3).
Direction 65 specifically draws to the attention of decision-makers, when considering visa applicants, the principle that a person convicted of criminal or serious conduct should have no expectation of being allowed to come to Australia – para 11.1.2(2). The focus of this inquiry has not been the expectations of the Applicant, or the ramifications of the refusal of a visa for him, but, rather, the safety of the Australian community and the benefit that would flow to his family from allowing him to enter Australia.
The evidence before the Tribunal suggests that the Applicant poses little, if no, risk to the Australian community. He is an elderly person with no history of criminal conduct other than one incident more than a decade ago. He is not, as in Sharma, a repeat offender. He did not engage in targeting multiple minors in a premediated manner as in that matter.
Normally, a sexual crime against a minor would result in visa being refused simply because the nature of the crime is such “that the Australian community would expect that the person should not hold a visa” - Direction No. 65 para 11.3(1). Nonetheless, there is still a discretion to grant a visa to a person found guilty of such a crime, and this matter highlights why there is such a discretion. Here, when assessing the nature of the crime, the sentence imposed, the lack of reoffending, the psychiatric evidence, the general age and character of the Applicant, the short nature of the proposed visit, the compassionate reasons for visiting together with other matters, the Tribunal has formed the view that a favourable exercise of the discretion in section 501 is appropriate.
For all of the above reasons, I have reached the conclusion that a Visitor (Class FA) visa should be granted to the Applicant.
DECISION
The decision under review is set aside. The discretion under section 501(1) of the Migration Act 1958 to refuse to grant Mr Fabb a Visitor (Class FA) Visa should not be exercised.
I certify that the preceding 93 (ninety-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Sosso ........................[Sgd]................................................
Associate
Dated 11 November 2016
Date of hearing 29 September 2016 Solicitors for the Applicant Sharma Lawyers Solicitors for the Respondent Sparke Helmore Lawyers
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