FYBR and Minister for Home Affairs (Migration)
[2018] AATA 4281
•5 November 2018
FYBR and Minister for Home Affairs (Migration) [2018] AATA 4281 (5 November 2018)
Division:GENERAL DIVISION
File Number(s): 2018/4731
Re:FYBR
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:5 November 2018
Place:Sydney
The Tribunal affirms the decision under review, to exercise the discretion to refuse to grant the Safe Haven Enterprise visa under s 501(1).
...............................[SGD].........................................
Mrs J C Kelly, Senior Member
CATCHWORDS
Migration – refuse to grant Safe Haven Enterprise visa (SHEV) under s 501(1) – whether Applicant failed to pass s 501(6)(e) character test – convicted of a sexually based offence involving a child – whether to exercise discretion to refuse to grant the SHEV – primary considerations - protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community - expectations of the Australian community – other considerations – international non-refoulement obligations – indefinite detention - decision affirmed
LEGISLATION
Migration Act 1958 (Cth) s 48B, ss 195A(2), (4), s 499, ss 501(1), (6)(e)
CASES
Bhardwaj and Minister for Immigration and Border Protection [2017] AATA 86
Chu Kheng Lim v Minister for immigration (1992) 176 CLR 1; [1992] HCA 64
Oluwafemi v Minister for Home Affairs [2018] FCA 1389
Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; [2014] HCA 34YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction 65 - Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s501CA - cll. 8(2), 8(3), 8(4), 11.1.1, 11.1.2, 11.3,12.1
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
5 November 2018
The reviewable decision
This is an application by FYBR for the review of the decision to refuse to grant him a Safe Haven Enterprise (Class XE) (subclass 785) visa (SHEV) (the reviewable decision). The reviewable decision was made by the Respondent’s delegate on 7 August 2018
The delegate decided that FYBR did not pass the character test in s 501(6)(e) of the Migration Act 1958 (Cth) (the Act) because he had been convicted of a sexually based offence involving a child, that of procure child for unlawful sexual activity.
The delegate then considered whether to exercise the discretion to refuse to grant the visa under s 501(1), which provides:
The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
The issues to be determined
The issues that the Tribunal has to determine are:
(a)Whether FYBR passed the character test; and
(b)Whether the discretion should be exercised to refuse to grant the visa.
Direction 65
The Minister has issued Direction 65 pursuant to s 499 of the Act. It sets out objectives, general guidance for decision-makers and the principles that provide a framework within which decision-makers should approach their task and how to exercise the discretion to refuse and cancel visas pursuant to s 501 of the Act and revoke mandatory cancellation of a visa under s501CA of the Act.
Part B of the Direction identifies the considerations relevant to determining whether to exercise the discretion to refuse a non-citizen’s visa application under s 501(1) of the Act. There are three primary considerations that must be taken into account, where relevant:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of the minor children in Australia;
(c)Expectations of the Australian community.
“Other considerations” must be taken into account where relevant. They include, but are not limited to:
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims;
(d)Impact on Australian business interests.
Clause 8 of Direction 65 states that in taking the relevant considerations into account:
·Information and evidence from independent and authoritative sources should be given appropriate weight when applying both primary and other considerations.[1]
·Both primary and other considerations may weight in favour of, or against, refusal of a visa.[2]
·Primary considerations should generally be given greater weight than other considerations.[3]
[1] Clause 8(2)
[2] Clause 8(3)
[3] Clause 8(4).
The Tribunal only addresses those considerations that arise on the evidence and were in dispute in the proceedings. The considerations that do not arise are the best interests of minor children in Australia, strength, nature and duration of ties to Australia, impact of the decision on victims, and impact on Australian business interests.
The factual background
FYBR is a citizen of Afghanistan. He was born in December 1988. His parents and three siblings relocated to Pakistan as refugees when FYBR was three. His mother died in 2007 and his father died in 2011, when he assumed responsibility for his siblings, a girl and two boys. At the date of hearing, the girl was married and no longer his responsibility. His two brothers were 16 and 18 years old. They are being cared for by their aunt and uncle who ask FYBR when they speak to him on the telephone, when he will get out of detention and fulfil his responsibilities.
On 12 March 2013, he arrived in Australia as an illegal maritime arrival, was detained as an unlawful non-citizen under s 189(3) of the Act, and placed into immigration detention.
On 24 April 2013, FYBR was granted a Bridging E (Class WE) visa that was valid until 24 October 2014. He remained unlawfully in the community until 16 March 2015. On 9 March 2015, the Minister exercised his power under s 46A of the Act to allow FYBR to lodge an application for a protection visa. Subsequently, on 17 March 2015 FYBR was granted a Bridging E (Class WE) visa.
The following facts are taken from the sentencing remarks Judge Letherbarrow SC made on 4 May 2016 in the District Court of New South Wales.
·On 17 September 2015 at 11.30 am, FYBR approached Victim 1, a 16 year old male who had left his High School dressed in his uniform, and asked Victim 1 to his house to have sex. Victim 1 declined and FYBR told him to “kiss his arse”. Victim 1 left and reported the incident to a family member who reported it to police.
·In early September 2015, FYBR spoke to Victim 2 about motorbikes and wanted victim 2 to come to his house. Victim 2 went to the front door but felt unsafe and left. On the afternoon of 17 September 2015, after leaving work, victim 2 saw FYBR who engaged him in conversation about his personal life, including his relationship status. FYBR asked the victim if he could find FYBR a boyfriend and stated that he liked “sucking”. The victim felt intimidated, pushed FYBR away, and reported the incident to his mother who reported it to police. Victim 2 was aged 16 but apparently looked younger.
·On 20 September 2015 FYBR was homeless. Victim 3 was riding his scooter. FYBR was sleeping under a tree and whistled out to Victim 3 stating that he would give him $100 if he kissed him. He also asked victim 3 to “suck” him. When victim 3 declined, FYBR offered him $200. The victim left the area feeling scared. Later that afternoon, Victim 3 walked past FYBR who grabbed his shirt. Victim 3 punched FYBR and ran from the scene. Police saw him running and stopped him. He reported the incident to them. Victim 3 was 14.
On 22 September 2015, FYBR’s bridging visa was cancelled under s 116 of the Act and he was placed in a correctional facility.
On 16 March 2016, FYBR pleaded guilty and was convicted in a Local Court in New South Wales of:
·Common assault (relating to Victim 3);
·Procure child for unlawful sexual activity (relating to Victim 3), and
·Stalk/intimidate intend fear physical etc harm (personal) (2 counts relating to Victims 1 and 2).
FYBR was sentenced to two years’ imprisonment from 20 September 2015, with a non-parole period of 18 months.
FYBR appealed to the NSW District Court against the severity of the sentences. On 4 May 2016, the appeal was allowed and the sentence was reduced to an aggregate head sentence of 12 months imprisonment with an aggregate non-parole period of seven months ending on 19 April 2016. FYBR was released from criminal detention because the non-parole period had expired but was immediately detained under s 189(1) of the Act and placed into immigration detention where he remains.
On 7 September 2016, the Minister again exercised the power under s 46A of the Act to allow FYBR to lodge another application for a SHEV. The application was lodged on 28 April 2017 on the basis of his Hazara ethnicity and Shia Muslim religion.
On 24 January 2018, FYBR was issued with a notice of intention to refuse his SHEV application because he did not meet the character test.
On 21 May 2018, FYBR was invited to comment on further information obtained by the Department, namely a national police certificate and the transcript of the District Court proceedings.
On 12 June 2018, FYBR’s migration agent provided a submission and statement from FYBR in which he expressed his remorse for his actions.
On 7 August 2018, the delegate exercised the discretion under s 501(1) of the Act to refuse to grant the SHEV.
FYBR was not represented before the Tribunal and provided no further documentary evidence.
The character test
FYBR does not pass the character test in s 501(6)(e) of the Act because he has been convicted of a sexually based offence involving a child, that is, procure child for unlawful sexual activity.
It is then necessary to consider whether to exercise the discretion in s 501(1) to refuse to grant the SHEV.
Should the discretion be exercised to refuse to grant the SHEV?
Following is consideration of the facts in accordance with Direction 65.
Protection of the Australian community
The primary consideration, Protection of the Australian community, requires the Tribunal to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens and that there is low tolerance for visa applicants such as FYBR who have engaged in criminal conduct.
Nature and seriousness of the conduct (11.1.1)
FYBR has committed a sexual crime which is viewed seriously. His crimes were serious because they were committed against minors, who are vulnerable members of the community. He was sentenced to imprisonment for 12 months which reflects the seriousness with which the court viewed his offending. He offended over a period of four days. They are his only offences. He had been in the Australian community for almost two years and four months before committing the offences. He has been in custody or immigration ever since, a period of more than three years. Only two adverse incidents are recorded while he was in a correction facility. One was dismissed for no evidence and the other was damage destroy or deface cell, $80 compensation.
The Tribunal infers that he was not in contact with minors when in custody or immigration detention.
Risk to the Australian community (11.1.2)
The Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Letherbarrow J found the objective seriousness of the offending generally below mid-range in relation to the stalk/intimidate offences and the sexual offence, and very much in the low range in relation to the common assault charge.
Relevant to the assessment of risk is FYBR’s statement to police who arrested him on the evening of 20 September 2015, that he was attracted to younger males and that if they had accepted his sexual advances, he would have had intercourse with them because he had not had sex in a long time. While admitting the offences to the police, FYBR told them that he thought he had not committed any offence and that he was within his rights to ask those young males for sex.
FYBR was on a bridging visa at the time of the offences. Australia has a low tolerance of any criminal conduct by visa applicants holding a limited stay visa. There should be no expectation that such people should be allowed to remain in Australia.
If FYBR commits further similar offences, minors, vulnerable members of the Australian community, may suffer physical and/or psychological harm. There would also be additional cost and burden on the criminal justice system and potentially on the migration detention system.
International Health and Medical Services (IHMS) provide health care for immigration detainees. IHMS medical records for FYBR show that the harm arising from future offending may include infection with Hepatitis B:
·On 14 March 2013, a Health Discharge Assessment for Person in Immigration Detention was carried out. The assessment reported that Hepatitis B carrier was noted on routine pathology, notification was done, and FYBR was counselled and educated. The outcome was a GP letter “and follow up in the community”. At that time, FYBR was assessed as not having any mental health issues.
·Since his return to detention in May 2016, his Hepatitis B has been reviewed and monitored by the IHMS GP and a gastroenterologist from time to time. He has received a care plan and GP counselling. Cirrhosis of the liver has been noted.
Following is a summary from the Victorian State Government’s Better Health Channel:
·Hepatitis B is a viral infection that causes liver inflammation. It is transmitted through contaminated blood and other body fluids.
·Hepatitis B can be prevented by immunisation.
·Immunisation against hepatitis B provides very good protection (about 95 per cent effective) and is recommended for all infants, young children and adolescents, and people in high-risk groups.
·Untreated hepatitis B can stay in the body for a long time (chronic hepatitis B) and lead to liver scarring (cirrhosis), liver cancer and death.
·Nearly half of all people living with hepatitis B in Australia have not been diagnosed.
·Most people with hepatitis B in Australia became infected at birth or during their early childhood in countries overseas.
·Hepatitis B may be spread through unsafe (unprotected) sex or sharing injecting equipment.[4]
[4] >
FYBR was infected with Hepatitis B when he committed the offences. That fact was not referred to in the sentencing remarks. He told police at the time that he would have had intercourse with his victims if they had accepted his advances. There is no evidence about FYBR’s past or current consciousness of the need to protect other people from infection.
Taking into account the sentencing judge’s assessment of the seriousness of the offending, and the possible risk of infection with Hepatitis B, the Tribunal does not consider that the harm that would be caused if FYBR’s conduct were repeated is so serious that any likelihood that it may be repeated is unacceptable.
The author of the pre-sentence report assessed FYBR overall as having a medium to low risk of reoffending, although some testing results suggested that he in fact presented a high risk.
Relevant to the risk FYBR poses to the Australian community is his limited work history in Australia and lack of evidence of friends or family in Australia. The sentencing judge remarked that FYBR had limited education and limited English, had worked in the retail clothing sector in Pakistan but had obtained limited work in Australia, either fruit picking or in manual labour. The Tribunal accepts that he had no work rights in Australia and was very anxious as a result, although he did work at times.
FYBR would not tell the author of the pre-sentence report whether he has friends or family in Australia because he was concerned how they would view his homosexual tendencies. The author commented:
Cultural differences, and an inability to successfully integrate into the community, appeared to contribute to his disenfranchised state and his offending behaviour.
The records from NSW Department of Corrective Services show that he had no visitors and made few telephone calls. During one interview, he mentioned some friends in Sydney whom he had only known for a few months and an aunty and cousins in Brisbane whom he did not wish to involve because he thought they would hurt him. He told the Tribunal that he is in contact with his family in Pakistan.
No statement of support from any friend or relative was provided in response to the notice of intention to refuse the visa or to the Tribunal. On the evidence, the Tribunal concludes that he has no support from friends or family in Australia.
Letherbarrow J commented that FYBR appeared to have limited understanding and limited insight into the gravity of the offending. The Tribunal shares that view. As a consequence of those offences, FYBR has spent more than nine months in prison and has been in detention for almost two and a half years. Nothing that has been done in either institution has assisted him to a better understanding or insight.
FYBR knows that what he did was unacceptable in Australia because of the consequences of his actions for him, but he does not understand why his actions were wrong. He seemed to think that because he did not touch his victims, his conduct was acceptable. The Tribunal concludes from his evidence that he believed at the time of the offences that the freedom available in Australia, compared to the constraints on his behaviour in Pakistan, allowed him to request minors to satisfy his sexual desire.
The Tribunal does not accept his written claims to be aware of the law in Australia or that he reads through the code of conduct provided to him in detention every night and knows what is expected of him in Australia. His oral evidence was inconsistent with those claims. In his statutory declaration dated 12 October 2017, he set out a series of events where he was asking boys for the contact numbers of girls and one instance when he asked a boy to perform oral sex on him. This account did not accurately reflect his offending. His migration agent stated that people with a propensity to re-offend are more likely to seek to explain away their actions whereas people with a low or no risk of re-offending accept responsibility for their actions and accept that their behaviour harmed another person, quoting evidence from a psychologist in Bhardwaj and Minister for Immigration and Border Protection [2017] AATA 86. FYBR was rewriting his offending. He was not taking responsibility for all his actions. His later undated statement did not specify the offences he committed but expressed regret and commitment not to reoffend.
The Tribunal does accept that the prospect of going back to prison and detention will deter FYBR from repeating his offending conduct because he does not want to be in either institution and is under pressure from his family in Pakistan to get out of detention and fulfil his responsibilities by earning money to support his brothers.
There is no evidence that FYBR has taken any steps towards rehabilitation although he has expressed the desire to rehabilitate himself. He has not undertaken any rehabilitative courses. His evidence was that no such course was offered. There is no evidence to the contrary.
He has not been in the community since he offended and therefore his intention not to reoffend has not been tested.
FYBR arrived by boat. He has applied for a protection visa which would permit him to stay for five years. He has been in detention for more than two years since being released from prison. The Tribunal accepts his migration agent’s submission that he wishes to reside in Australia permanently. He has not requested to leave the country.
IHMS medical records for FYBR show the following:
·On 17 May 2016 FYBR reported a history of torture and trauma. He has declined counselling.
·In May 2016, FYBR informed the IHMS GP he had been hearing voices for the past year, mainly at night, disturbing his sleep. The GP commenced medication for insomnia until psychiatric review. FYBR was diagnosed with schizophrenia on 9 September 2016 and antipsychotic medication was commenced and changed to injection form in February 2017 to improve compliance.
·At the time of a psychiatric review in March 2018, his condition had not changed since his last review in November 2017, with no acute psychotic symptoms and no obvious negative syndrome. His psychosis appeared to have been well controlled for some time on the current dose of monthly medication. “The dose will be reduced with the aim to minimise the risk of long term side effects and to optimise his functioning. Also, he may need antidepressant treatment in the future.” He agreed to participate in individual or group counselling.
·The IHMS Health Summary Report for Commonwealth Ombudsman dated 31 July 2018 shows that he was continuing his monthly antipsychotic injections and had an appointment with a gastroenterology/hepatology specialist booked for 10 August 2018.
·A document dated 4 September 2018 was about his fitness for travel. The assessment was that he was fit to travel, did not require a medical escort, had a mental health issue, no mental health professional had been consulted on his fitness to travel, and there were other special considerations, “acute mental health issues currently impacting on fitness to travel, that requires specialised mental health input”. At that time, FYBR was on Christmas Island. He appeared before the Tribunal in person.
The Respondent submitted that there is no evidence that FYBR has had psychological therapy “to address his troubling behaviour”. The Tribunal understands that submission to refer to his offending rather than to behaviour attributable to his schizophrenia. There has been no expert assessment whether his offending was related to his schizophrenia. He was suffering the symptoms at the time of the offending according to his report to the IHMS GP in May 2016. His written evidence was that he was very lonely at the time he offended, in a bad place, his mind was back home, and mentally he was not even here. That he was changed to monthly injections in detention to improve compliance, raises the concern whether FYBR will comply with his medication for schizophrenia if he is released. If he does not, he may find himself in the same bad place he was in in September 2015.
There is no evidence that psychological therapy for his offending was available to him in prison or in detention. His evidence is that he would have attended rehabilitation classes but none have been offered. Because he was released when he was sentenced, the recommendation in the pre-sentence report that he be referred to a Sex Offender Program for assessment if he received a custodial sentence never eventuated.
The Tribunal accepts that the nature and seriousness of the offences committed, the cumulative effect of FYBR’s behaviour and the risk to the Australian community should he commit similar offences in future, supports the exercise of the discretion to refuse to grant the visa.
Expectations of the Australian community (11.3)
In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 Mortimer J considered expectations of the Australian community in the context of cl. 13.3 of Direction 65. Her Honour concluded:
… this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government … wish to articulate community expectations, whether or not there is any objective basis for the belief. That is the structure of this part of the Direction.
Her Honour’s reasoning is equally applicable to cl.11.3.[5]
[5] See Oluwafemi v Minister for Home Affairs [2018] FCA 1389 at [37].
The Tribunal accepts the Respondent’s submission that the Australian community would regard FYBR’s offending as unacceptable. The Australian community expects non-citizens to obey Australian laws. He has been convicted of serious offences, a sexual offence and three other offences against vulnerable members of the community.
The Tribunal accepts that this consideration favours the exercise of the discretion to refuse to grant the visa.
Other considerations: international non-refoulement obligations (12.1)
The Respondent accepts that Australia has protection obligations to FYBR under section 36 of the Act but argued that this consideration should be given less weight than the primary considerations.
The Tribunal accepts the Respondent’s assurance that the Australian government will not return FYBR to Afghanistan in breach of its protection obligations, despite ss. 197C and 198 of the Act. However, that leads to the question what will happen to FYBR if he is not granted a visa?
The Respondent acknowledged that:
·FYBR would remain in detention unless:
oThe Minister exercised the power conferred by s 195A to grant visa to a person who is in immigration detention if the Minister thinks that is in the public interest; or
ogranted a Bridging R (Class WR) visa Subclass 070 – Bridging/Removal pending visa; or
oThe Minister exercised his power under s 48B to allow FYBR to apply for a protection visa.
The Minister is not under a duty to exercise the powers conferred by ss 48B and 195A(2) of the Act[6].
[6] Section 195A(4)
A further possibility is that he will volunteer to return to Afghanistan, where effectively he has never lived and on the evidence knows no-one. The evidence does not indicate whether he would have any right to return to Pakistan if he wished to do so. He has not expressed a wish to return to either country, despite his lengthy detention since May 2016. He has been awaiting the outcome of his SHEV application since 28 April 2017.
The Respondent acknowledged that if FYBR were in detention and there was no ability to remove him, the issue may arise whether he remains in detention for a lawful purpose.[7] That is not an issue before the Tribunal.
[7] See the High Court’s consideration by the majority in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 33; [1992] HCA 64; and by the court in Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; [2014] HCA 34.
FYBR spent more than nine months in custody as punishment for his criminal offending. He has been in immigration detention for almost two and a half years since he was released from custody on 4 May 2016. If the Tribunal decides to exercise the discretion to refuse the SHEV, he faces further detention.
There is no suggestion in the IHMS records that FYBR’s health issues are likely to be adversely affected by remaining in a detention environment. The Tribunal notes that there is no psychiatric or psychological report before it.
The Tribunal concludes that that being in immigration detention for more than two years after having served the sentence determined by the justice system for the offences he committed, with uncertainty about when or if ever he may be released, weigh in favour of not exercising the discretion to refuse the visa.
Conclusion
Taking into account all the circumstances discussed above, and being conscious of the lengthy period of time he has already been in detention, the Tribunal has concluded that in this case the primary considerations of protection of, and expectations of, the Australian community outweigh the other considerations in this case, Australia’s international non-refoulement obligations and consequential prolonged detention.
The Tribunal affirms the decision under review, to exercise the discretion to refuse to grant the SHEV under s 501(1).
I certify that the preceding 68 (sixty - eight) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member
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Associate
Dated: 5 November 2018
Date(s) of hearing: 22 October 2018 Applicant: In person Solicitors for the Respondent: Dale Watson, Australian Government Solicitors
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