FHTB and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 371
•14 April 2025
FHTB and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 371 (14 April 2025)
Applicant:FHTB
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2025/0458
Tribunal:General Member A. Maryniak KC
Place: Melbourne
Date:14 April 2025
Decision:The Tribunal affirms the decision under review.
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General Member A. Maryniak KC
Catchwords
MIGRATION – refusal to grant applicant’s visa – Class XE Protection visa – failure to pass character test – substantial criminal record, rape offences – family violence incident - bail offences – driving and dishonesty offences – protection finding in favour of applicant – Australia’s non-refoulement obligations engaged relative to the Democratic Republic of Congo - Ministerial Direction No. 110 – primary considerations – protection of the Australian community – family violence – strength, nature and duration of ties – expectations of Australian community – reviewable decision affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Cases
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Secondary Materials
Direction no. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024)
Statement of Reasons
The 38-year-old Applicant seeks review of a decision dated 20 January 2025, refusing him a Protection (Class XA) visa (the Visa), pursuant to the discretion under s 501(1) of the Migration Act 1958 (Cth) (the Act).
CONSIDERATION
The Applicant arrived in Australia in September 2010. He was born in the Democratic Republic of Congo, living as a member of the Banyamulenge tribe. Aged 15 he fled to Tanzania, having witnessed his family being killed by the Congolese army. He lived in a refugee camp in Tanzania, then one in Malawi (where he married) and travelled via Mozambique, Zimbabwe and South Africa during his journey to Australia.
The Applicant, having been sentenced in September 2018 to 5 years and six months imprisonment on two counts of rape, does not pass the character test under the Act. Hence the sole issue for the Tribunal to determine is whether, applying the relevant provisions of Direction 110, (the Direction) there is another reason to revoke the Visa cancellation given the specific circumstances as discussed below.
The Tribunal has considered the documentary material before it, comprising exhibits R1 and R2,[1] the testimony of the Applicant, and the written and oral submissions of the parties.
[1] Documents lodged pursuant to section 501G of the Act (‘Exhibit R1’); Tender Bundle lodged on 3 April 2025 (‘Exhibit R2’).
DIRECTION No. 110
The Tribunal is to apply the relevant considerations set out in paragraphs 8 and 9 of the Direction. Paragraph 5.2 of the Direction provides the following framework principles:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)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.
(4)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 noncitizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(5)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.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may 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.
(7)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.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measureable risk of causing physical harm to the Australian community.
The Tribunal, informed by these principles, is then to take into account the primary and other considerations, with Primary Consideration 1 generally to be given greater weight, pursuant to paragraph 7(2) of the Direction and the Primary Considerations to be given greater weight than the other considerations.
PRIMARY CONSIDERATIONS
Protection of the Australian Community
Paragraph 8.1(2) of The Direction requires consideration be given 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 conduct to date
The Applicant committed driving and dishonesty offences between December 2013 and April 2014. On Christmas eve 2013 he was caught drink driving at 4.25am and his provisional licence was immediately suspended with a reading over twice the legal limit being recorded. His testimony as to the lead up to this event was not particularly clear and was inconsistent with his earlier personal statement of 26 October 2024.[2] He was also subsequently fined $200 on 21 May 2014 for assault or obstruct a police officer during the drink driving incident, but no conviction was recorded and the Tribunal does not give weight to this charge.
[2] Exhibit R1, Attachment N p 130.
On 19 May 2014, the Applicant pled guilty to driving whilst disqualified (fined $1000 and 12 month driving disqualification), exceeding the speed limit (fined $700) and giving a false name and address and fined $500.
On 20 May 2014, the Applicant pled guilty to driving without a licence disqualified by a Court Order (fined $1000), contravening a police direction or requirement (disqualified from driving for 2 years) and, with no conviction recorded for providing false or misleading documents (fined $400). No further driving offending has occurred since then.
In March 2016 the Applicant caused injuries to his then 5-year-old son whilst disciplining him. Police observed injuries to the child on both his arms, with some bleeding to the face. He pled guilty to assault occasioning bodily harm whilst armed/in company-domestic violence offence and was sentenced to 12 months’ probation, however no conviction was recorded.
The Applicant was convicted of breaching bail conditions twice in 2018.
In September 2018 the Applicant was convicted of two counts of rape (which occurred on 20 and 21 January 2017). He was sentenced to 5 years and 6 months imprisonment, adjusted by 358 days (27 January 2017 to 19 January 2018) already served on remand, having been bailed for about 8 months after remand up until trial. Although the victim was 13 years old it was accepted by the Court that the Applicant thought she was nearly 17. The Applicant met the victim at a friend’s house and she went with the Applicant when he drove a friend home. Then, the victim having told the Applicant she was homeless due to a falling out with her parents, the Applicant offered her temporary accommodation at his shared apartment. She spent 36 hours there and complained to the police of having been raped 5 days later.
At trial the Applicant pleaded ‘not guilty’ and was acquitted of nine charges of indecently treating with a child under 16 and unlawful carnal knowledge. The sentencing Judge noted that those 9 counts involved consensual activity preceding the two rapes, yet the Applicant had expressed no remorse for his offending and during at least one of the rapes he had not used a condom, and despite assuring the victim he would not do so had ejaculated inside her, exposing her to pregnancy risk.[3] The significant term of imprisonment was not disturbed upon an Appeal being dismissed in October 2019.
[3] Ibid, Attachment B p 70 (22-38), p 72 (3-6).
The Australian community views family violence and rape offending very seriously as noted in paragraph 8.1.1(a) of the Direction. By their nature they are very serious and the Tribunal finds accordingly. The Tribunal finds the remaining offending by the Applicant to be less serious in nature.
Risk to the Australian Community
The Tribunal is to have regard to the Australian community’s tolerance for any risk of future harm becoming lower as the seriousness of potential future harm increases. In assessing risk that may be posed by the Applicant the Tribunal has considered the very serious nature of the potential future harm and must also assess the likelihood of the Applicant engaging in further such conduct.
The Tribunal acknowledges the Applicant’s expressed remorse for the family violence incident which essentially is a ‘one off’ and occurred just over 9 years ago. Whilst recognising that the incident is very serious the Tribunal notes that no conviction was recorded and that letters of support are before the Tribunal from all the Applicant’s children, including the victim. Also, the Applicant has completed various rehabilitative programs including Anger Management, Domestic Violence Awareness and Positive Parenting courses. The Applicant states that these “programs were undertaken with the genuine intent to address the underlying causes of my past behaviour and to ensure that such actions are never repeated”.[4]
[4] The Applicant’s Statement of Facts, Issues and Contentions lodged on 28 March 2025 (‘ASFIC’) p 5.
The Applicant’s evidence regarding his remorse and rehabilitation in respect of the rapes is more complex. He said “I fully acknowledge the court’s verdict and respect the legal process that led to my conviction for the serious offence of rape. I deeply regret the harm caused to the victim and my family. I understand the profound impact my actions have had on them and take full responsibility for the suffering caused”[5] and gave testimony to the same affect. He also stated twice during his testimony that he never had sex with the victim.[6] There is a significant tension between the Applicant stating that he accepts the guilty findings of rape by the Court yet maintaining during the hearing that he never had sex with the victim. The Tribunal is therefore not satisfied that the Applicant has sufficient insight into his offending to be the basis of any genuine remorse or complete understanding of his offending.
[5] Ibid.
[6] Exhibit R1, Attachment N p137 at [35].
Since the rapes, the Applicant has spent limited time in the Australian community, being the eight months after being bailed pre-sentencing and from 20 January 2025. Whilst the Tribunal accepts that the Applicant has been in prison from August 2018, then successfully paroled and in immigration detention until January this year, both without incident, the Applicant has spent very little time in the Australian community. Therefore, there is no real ability for the Applicant’s asserted rehabilitation to be tested yet. Further the Applicant has to date not undertaken any sex offender rehabilitation programmes tailored to his offending which to some extent at least he remains in denial about.
The Tribunal’s heightened concern regarding risk is amplified by the lack of any targeted psychological evidence directly addressing the Applicant’s rehabilitation in light of his restricted insight into his offending. The Tribunal notes the two letters of support from Ms Cassidy, trauma focussed counsellor which are not directly relevant. Further, the Tribunal notes that the Applicant completed 8 sessions with Ms Nichols, also a trauma counsellor, who has provided two letters in support. One is dated 26 July 2023 and the latter dated 20 March 2025, which is mostly identical. Contrary to the Applicant’s submission, the Tribunal does not place any significant weight upon Ms Nichols’ documentary evidence, accepting the concerns submitted by the Respondent as follows:
(a)First, Ms Nichols is not a forensic psychologist, and is not qualified to provide an expert assessment of the applicant's risk of re-offending. Rather, she specialises in trauma counselling. Ms Nichols was the applicant's trauma counsellor for eight weeks in 2023.
(b)Second, other than the statement that the applicant 'was forthcoming regarding his criminal charges', the nature of which is not specified, Ms Nichols' letters reveal no knowledge of the applicant's convictions and their factual basis.
(c)Third, Ms Nichols does not explain the basis for her conclusion that the applicant's risk of re-offending is 'very low', nor does she refer to the information she had available to her or the factors she took into account in coming to that view.
(d)Fourth, contrary to the applicant's submission, Ms Nichols' reports do not state, expressly or otherwise, that the applicant has 'demonstrated genuine remorse ‘for his (unspecified) 'past actions'.[7]
[7] The Respondent’s Submissions in Reply lodged on 3 April 2025 at [14].
The Applicant submits and the Respondent accepts that the Tribunal must take into account the danger the Applicant poses to the community on the Bridging Visa (BVR) relative to the danger he would pose to the Australian community were he to be granted the Visa he seeks. The Applicant is subject to a substantial range of restrictive conditions on the BVR.[8] These include wearing an electronic monitoring device and not going within 200 metres of a school, childcare centre or day care centre. The Applicant says wearing the device has a severe negative impact upon his life including physical pain and discomfort, stigma, concealment in public and from his family due to shame, mental health decline and his perception of the device as a barrier to his social re-integration and full rehabilitation.
[8] See Exhibit R2, pp 63-66.
It is submitted on behalf of the Applicant that his risk of re-offending “is significantly reduced if he was granted a permanent protection visa as he will not be subject to degrading and onerous visa conditions with the threat of criminal sanction which reduces his morale and ability to meaningly participate in the Australian community”.[9] The Tribunal rejects that submission, in light of its findings as to the limitations of the Applicant’s rehabilitation to date set out in paragraphs 18 to 20 above. Further, there is otherwise insufficient evidence before the Tribunal to satisfy it that the BVR conditions are incrementally hindering the Applicant’s rehabilitation and increase his risk of re-offending.
[9] Victoria Legal Aid Supplementary Submissions lodged on 28 March 2025 at [20].
The Tribunal notes the Respondent’s submission regarding the monitoring device, that the Applicant has “applied for the ‘removal of condition 8621 – to which his visa is subject for 12 months – from his BVR on 17 February 2025. That application is currently being considered, and will be the subject of a separate decision. It follows that whether the applicant is subject to condition 8621 is not determined by the Tribunal’s decision on this application”.[10]
[10] The Respondent’s Submissions in Reply lodged on 3 April 2025 at [8].
Whilst the Tribunal accepts that the BVR conditions are challenging for the Applicant, the Tribunal is not persuaded he represents a greater risk to the community than if he were living in the community on the Visa he seeks.
As a consequence, on the evidence presently before the Tribunal it can only conclude that there is a risk of the Applicant re-offending and with regard to the very serious nature of the rape offending, the Tribunal finds that this primary consideration weighs significantly against the grant of the Visa.
Family Violence
As the Direction specifies, the “Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen”. Although no conviction was recorded the Applicant did plead guilty to the offending against his son pursuant to paragraph 8.2(2)(a) of the Direction.). However, having considered each of the factors set out in Direction 8.2(3)(a) to (d) the Tribunal is satisfied that the one family violence incident, which occurred 9 years ago, is at the lower end of the range of offending.
The Tribunal finds that this primary consideration weighs slightly against the grant of the Visa.
The strength, nature and duration of ties to Australia
Having arrived in Australia in 2010, the Applicant has spent about 15 years here. He has a limited employment history and his significant rape offending occurred less than 7 years after his arrival in Australia.
The Applicant has a wife and seven children (six of whom are minors) and he also has a long-term partner and 3 minor children (two of whom are stepchildren). All are living in Australia and the long-term partner and her 3 children are in the process of re-locating from Queensland to Victoria. The Applicant’s wife and seven children live in Victoria and the Applicant now lives near them. He testified that he intends to live with them subject to a successful review by Child Safety Victoria which is pending.
Even though the Applicant has been physically missing from their lives for some years, whilst incarcerated, the evidence before the Tribunal indicates that his presence and involvement in their lives, moving forward, will have a positive and beneficial effect upon each of their lives. Both the wife and long-term partner support the Applicant’s application for the Visa.[11] It is in the best interests of all that he be granted the Visa.
[11] Exhibit R1, Attachment AD pp 242-245.
The Tribunal finds that this consideration weighs in favour of the grant of the Visa.
Best interests of minor children in Australia
The Applicant has 8 biological and 2 step minor children, 9 of whom are under the age of 18. There is also evidence before the Tribunal that the Applicant’s wife is pregnant. All of the biological children have provided letters of support for their father, the Applicant, which are in evidence.[12]
[12] Ibid, Attachments V-AC pp 233-241.
As discussed above, it is the Applicant’s intention to live with his wife and their children. His long-term partner will also be moving to Victoria with her children. The Applicant testified that he will be involved in all of the children’s lives as their father and the Tribunal is satisfied of the Applicant’s intentions in this regard. The Applicant’s presence in Australia and involvement in each of the minor children’s lives will have a positive and beneficial impact upon each of their lives.
The Tribunal finds that this primary consideration weighs in favour of the grant of the Visa.
Expectations of the Australian Community
As discussed in respect of primary consideration 1, the rape offending by the Applicant in particular, is of very serious concern as it involved the commission of serious crimes against women including crimes of a violent and sexual nature. The expectations of the Australian community as a whole are to be considered pursuant to paragraph 8.5(4) of the Direction, and it is not for the Tribunal itself to determine such expectations.
The very serious character concerns are engaged in respect of the rape offending and because of the nature of this offending and consistent with the submissions of the Respondent, the Tribunal places very significant weight upon this primary consideration being against the grant of the Visa.
OTHER CONSIDERATIONS
Legal Consequences
On 20 January 2025 the Respondent’s delegate accepted that a protection finding had been made in the Applicant’s favour after a separate protection visa assessment. The delegate found that the Applicant’s circumstances engaged Australia’s non-refoulment obligations regarding the Congo, and hence he would not be removed to the Congo. The Applicant is currently on a Bridging ((Removal Pending)(subclass 070) visa (BV(R)), granted, as submitted by the Respondent, “by reason of there being no real prospect of the Applicant being removed from Australia in the foreseeable future, such that the constitutionally permissible period of executive detention of an alien who has failed to obtain permission to remain in Australia had come to an end.”[13] The Applicant is therefore a NZYQ-affected person.[14]
[13] ‘RSFIC’ at [8]-[9].
[14] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (NZYQ).
As to the legal consequences of the reviewable decision the Respondent submits the following:
(a)Should this Tribunal affirm the delegate’s visa refusal decision, the applicant will remain the holder of a BV(R). Such a visa permits his residence in the community, subject to conditions relating to his future conduct. Should the applicant breach the conditions attached to that visa, he may be returned to detention, so the onus is on the applicant to conform with the conditions imposed.[15]
(b)Any person who holds a BV(R) could have their protection finding reconsidered under s 197D of the Act, should that person no longer be a person in respect of whom any protection finding within the meaning of subsections 197C(4), (5), (6) or (7) of the Act would be made. If the applicant is regarded as a national of the Congo, there is no realistic prospect of this occurring in relation to the applicant in the foreseeable future, as it would require a significant change in the political situation in the Congo, and there is no evidence to suggest that such a change is likely to occur. If the applicant is regarded as Stateless by reason of members of his tribe having been stripped of Congolese nationality, then there is no prospect of the applicant being removed to the Congo. Any person in an equivalent position could be considered as liable for relocation to a third country but the prospect of relocation should be assessed as remote.[16]
[15] ‘RSFIC’ at [63].
[16] Ibid, at [64].
It is submitted on behalf of the Applicant that the prospect of removal to a third country is real.[17] In reply the Respondent maintains that the prospects of the Applicant being removed from Australia are remote.[18]
[17] Victoria Legal Aid Supplementary Submissions lodged on 28 March 2025 at [27]-[50].
[18] The Respondent’s Submissions in Reply lodged on 3 April 2025 at [9]-[11].
In circumstances where there is a chance of removal from Australia in the future, which is difficult for the Tribunal to assess as presently informed, the Tribunal finds that this other consideration weighs slightly in favour of the Visa being granted.
Extent of impediments if removed
The Applicant has a protection finding made in his favour and hence cannot be removed to his country of birth being the Democratic Republic of Congo, due to Australia’s non-refoulment obligations. The other consideration relating to the extent of impediments that the Applicant would face if he was returned there does not apply.
The Tribunal gives neutral weight to this other consideration.
Impact on Australian Business Interests
There is no evidence before the Tribunal suggesting any significant impact by the Applicant upon any Australian business interests. As a consequence, the Tribunal gives neutral weight to this other consideration.
CONCLUSION
The Tribunal has carried out the evaluative exercise of weighing up the primary and other considerations to determine whether it is satisfied that there is another reason to revoke the visa cancellation decision.
On balance, applying the respective weights as found by the Tribunal, the Tribunal is satisfied that the considerations against revoking the visa cancellation decision, being Primary Considerations 1, 2 and 5, outweigh the considerations in favour of such a revocation.
The Tribunal affirms the reviewable decision.
I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of General Member A. Maryniak KC
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Associate
Dated: 14 April 2025
Date of hearing: 7 April 2025 Applicant: Self-represented Solicitor for the Respondent Mr Maximilian Plitsch Solicitors for the Respondent: Australian Government Solicitor
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