GKKS and Minister for Home Affairs (Migration) - [2019] AATA 34

GKKS and Minister for Home Affairs (Migration) [2019] AATA 34 (15 January 2019)
Division:GENERAL DIVISION
File Number(s): 2018/6178
Re:GKKS
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Bill Stefaniak AM RFD, Senior Member

Date: 15 January 2019
Place:Sydney

The delegate’s reviewable decision of 23 October 2018 is set aside.
The tribunal sets aside the reviewable decision and remits the matter to the Respondent for reconsideration of the Applicant’s Class WE Bridging E visa, with the direction that the Applicant passes the character test within the meaning of Sub-paragraph 501(6)(d)(i) of the Migration Act 1958 (Cth).
.........................[sgd].............................................
Bill Stefaniak AM RFD, Senior Member
CATCHWORDS
MIGRATION – mandatory visa cancellation – Refugee visa – failure to pass character test – substantial criminal record – Ministerial Direction no. 65 applied – whether another reason why cancellation decision should be revoked – protection of the Australian community – community expectation – Australian ties – Interim Domestic Violence Order – decision set aside and substituted – Bridging visa – allege sexual assault – risk of engaging in criminal conduct in Australia
LEGISLATION
Migration Act 1958 (Cth) ss 501, 500, 116
CASES
Gong and Minister for Immigration and Border Protection & Anor [2016] FCA 561
SECONDARY MATERIALS
Direction no. 65
REASONS FOR DECISION

Bill Stefaniak AM RFD, Senior Member
15 January 2019
INTRODUCTION

This is an application for review of the decision by a delegate of the Minister for Home Affairs (“the Minister” or “Respondent”) to refuse “GKKS” (“the Applicant”) a Bridging E (Class WE) visa, pursuant to section 501(1) of the Migration Act 1958 (Cth) (“the Act”).
Under section 500(1)(b) of the Act, this Tribunal has jurisdiction to review the decision made by the Minister’s delegate.
BACKGROUND
The Applicant is a citizen of the Republic of Kenya. He first entered Australia on 9 January 2015 on a subclass 600 visitor visa. The Applicant then applied for a subclass 820 Partner visa.
The context behind the refusal of the Applicant’s subclass 820 Partner visa was that his wife (and ex-partner) made serious allegations of domestic violence against the Applicant. The ex-partner advised the Department that the Applicant had been abusive and aggressive towards her.
The Applicant applied for a subclass 866 Protection visa on 14 August 2017 and as a result of that application, the Applicant was granted a Bridging visa on 3 October 2017. On 29 November 2017, the Applicant’s bridging visa was cancelled under section 116 of the Act. The Bridging visa was refused as a result of the delegate relying on the charges that were laid against the Applicant on 17 September 2017. These charges related to the offences of sexual intercourse without consent and assault with act of indecency.
On 29 June 2018, the Director of Public Prosecutions directed no further proceedings in respect of all charges. [1]
[1] See SG1, Supplementary G-Documents pp 1 – 6.
On 23 August 2018 the Respondent’s Department wrote to the Applicant giving him Notice of their Intention to Consider Refusal under section 501(1) of the Act. [2]
[2] See G4(M), G-Documents pp 71 – 74.
On 23 October 2018 a delegate of the Minister made a decision to refuse the Applicant’s Bridging visa application under section 501(1) of the Act. Notice of the visa refusal decision was delivered to the Applicant by hand while in immigration detention. [3]
[3] See G3, G-Documents pp 12 – 16.
On 23 October 2018 the Applicant applied to this Tribunal for review of that visa refusal decision. [4]
[4] See G1, G-Documents pp 1 – 6.
ISSUES
The decision to refuse the Applicant’s visa was made on the ground that the Minister’s delegate was not satisfied that the Applicant passed the character test, having specific reference to subsection 501(6)(d)(i) of the Act. After taking into account the relevant considerations, the Minister’s delegate decided to exercise the discretion in subsection 501(1) of the Act to refuse to grant the Applicant’s Bridging visa.
The issues for this Tribunal to consider are:
(a)Whether or not the Applicant fails the character test; and if so
(b)Whether the discretion in section 501(1) of the Act should be exercised in the Applicant’s favour having regards to the mandatory considerations identified in Ministerial Direction No. 65 and any other relevant considerations.
Both parties at the hearing concentrated on the issue of whether the Applicant’s Bridging visa application should be refused on character grounds and whilst the Respondent did make submissions in relation to Ministerial Direction No. 65 with specific reference to paragraph 11 (1) of Direction No. 65 which sets out the primary considerations that a decision maker must take into account in relation to visa applicants, there was nothing further advanced by either party in relation to Ministerial Direction No. 65.
Both parties agreed that if the Tribunal found that the Applicant did not fail the character test then his bridging visa application should not be refused.
ISSUE 1:
The delegate of the Minister found that the Applicant did not pass the character test pursuant to subsection 501(6)(d)(i) of the Act, which relevantly provides:
“(d) in the event the person were allowed to enter or to remain in Australia there is a risk that the person would:
(i) engage in criminal conduct in Australia,”
The Minister’s delegate considered that there is a risk that the Applicant will engage in criminal conduct in Australia, having regard to his (abovementioned) criminal history. [5]
[5] See G3, G-Documents p 12-16.
It is important to summarise the Applicant’s criminal history.

Date

Offence

Result

17 September 2017.

Sexual intercourse without consent and assault with act of indecency.

All charges were dropped on 29 June 2018.

29 June 2018

Sexual intercourse without consent and assault with act of indecency.

All charges were dropped on 29 June 2018.

Trial date of 3 September 2018 was vacated.

One count of indecent assault and four counts of sexual intercourse without consent.

The Director of Public Prosecutions directed no further proceedings in respect of all charges.

DOES THE APPLICANT PASS THE CHARACTER TEST?

The character test is defined in section 501(6) of the Act. Under section 501(6)(a), a person will not pass the character test if they have a “substantial criminal record”. Further, section 501(7)(c) of the Act also specifies that a person is taken to have a significant criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
That is not the case here. Indeed, the parties accepted that the only part of section 501(6) that applied in relation to passing the character test was section 501(6)(d)(i).
EVIDENCE
Whilst the Tribunal was assisted by the various witnesses who gave evidence including after initial hesitation, the Applicant himself, it was disappointing that the complainant and alleged victim did not give evidence despite being offered the opportunity to give evidence by telephone to make it easier for her in all the circumstances.
The Tribunal also notes that whilst the complainant promptly attended [a] Hospital after the incident occurred in the early hours of 18 August 2017 she refused to have her body examined and also refused the vaginal examination. She did consent to take herself a vaginal swab and provide that swab to the sexual assault unit at the hospital.
Whilst the Applicant on day 2 of the hearing decided to give evidence, he on counsel’s advice did claim privilege in relation to not answering some of the questions put to him in relation to the incident on the basis that whilst the DPP had discontinued the proceedings their attitude was unclear as to whether they might try to reactive them. Whilst the evidence he gave was of great benefit to the Tribunal in its deliberation it was not complete.
However, as a result of the detailed evidence given by the Applicant in relation to the circumstances surrounding the breakup of his relationship in 2015/2016 with his wife with particular reference to the interim domestic violence order (DVO), Counsel for the Respondent indicated that she would not be relying on the issuing of an interim DVO which became a consent order as supportive material on the issue of the Applicant’s character. Accordingly the Tribunal will only make brief reference to this particular matter and it need not to be considered in detail.
The main if not the sole issue as to whether the Applicant passes the character test as defined in the Act relates to the alleged rape and sexual assault upon the victim (whom the Tribunal will refer to Ms X) on 18 August 2017. Accordingly the Tribunal will now detail relevant extracts from her Police statement and summarise, that document where appropriate. It appears that apart from that statement the applicant has never given sworn evidence in relation to the incident.to any court or tribunal.
EVIDENCE OF MS X
To ensure the alleged victim is not identified she will be referred to as Ms X for the purpose of this decision.
As is usual with Police statements Ms X signed a statement noting that it was true to the best of her knowledge and noting that if it was tendered into evidence she would be liable to prosecution if she had wilfully stated in it anything that she knew to be false or did not believe to be true. In that regard the Tribunal regards it as somewhat akin to a statutory declaration.
However, in submissions filed after the completion of the hearing Counsel for the Applicant noted that it appeared to have been signed, (above the typed correct name of the victim and the date), on all 9 pages in the bottom right hand corner of the page, with [an assumed identity]. Only on page 5 of that statement did the victim appear to start her signature with the [letter] which was the first letter of her correct name, but she then crossed it out and wrote [the assumed identity].
I note her signature was witnessed by Constable Daniel Watson on all pages in the bottom left hand corner of each page, so I can conclude that she clearly signed it, but the applicant’s counsel submits that I can draw inferences from it. It was common ground that she was known by a nickname but it was not [the assumed identity].
Ms X was [age] years of age and she lived in and worked at a [business].
She said that about 10:30pm on 17 August 2017 she finished work and after collecting some produce with her colleagues went with them to a café remaining there after her colleagues left. She then rode her push bike to the Hotel in the inner city. She chained her bike to a light post and went inside the Hotel at about 12:10 am on 18 August 2017. There she ordered a [drink] and sat at a table using the pub’s free wifi to check her emails, facebook and Instagram.
She had nearly finished her coke when a male of black African appearance (the Applicant) introduced himself and indicated that he knew her from the [business] where she worked and asked to sit down. She was comfortable with this and they began a conversation. Their conversation got around to animals and pets and Ms X showed him the picture of one of her [pets]. She indicated in her statement that she told him that she was tired and it was nice to meet him but she had to go.
She indicated that she exited the Hotel with the male following behind her and he approached her as she was unlocking her bike and had a further conversation expressing a desire to hang out with her and meet her [pets].
She agreed to this but only for a short while as she was tired and they went to her place which was short distance from the hotel. She described the Applicant at this time as being the same as he was in the hotel i.e. happy.
She then described her place which has a long corridor from the front door and the first door in the right was her bedroom which had a mattress on the floor and several items of furniture.
She said she told the Applicant she could only see him for about 20 minutes and he indicated he was comfortable with that.
She said that then the Applicant sat on the couch and his demeanour changed. He had gone silent and almost non talkative. She showed him [her pets] and it was then she noticed that his eyes were blood shoot and nearly red.
She said that he said to her: “you are really sexy” and she replied [deflecting his statement].
It was at this stage that she began to get a weird vibe. She then put her [pets away] and she asked him to leave. The Applicant then got up. She said he then grabbed her by her wrist and pushed her against the wall and tried to kiss her. He grabbed the skin on the right side of her waist which caused her severe pain. She attempted to have him release her and with a loud stern voice said: “get the fuck out”.
He came back towards her whilst saying “I want you, you are sexy”. He put his hands down her jeans and groped the skin of her buttocks aggressively (she wasn’t wearing underpants). She told him “to stop and get off me”.
He then undid the button on her jeans pulled them down and threw her over the coffee table on the bed got on the bed grabbed the back of her neck forcing her head into the blanket making it difficult for her to breath. He pulled her jeans forcefully down. At this stage she was suffering and crying as she was in a lot of pain in her lower spine, as she suffers from [a condition].
He then grabbed the left side of her hip pulled it upwards whilst pushing her upper back downwards forcibly again pushing her face into the mattress. He took his pants off and performed both penile and digital penetration of her vagina. The penile penetration caused her to feel severe pain into her vagina.
He then forcefully forced his penis into her mouth and ejaculated causing her to not breathe properly. She broke free and screamed loudly and said repeatedly “get the fuck out” after which he put his pants and shoes on and left.
Ms X then further told Police in her statement she had repeatedly yelled at him to stop and at all times was trying to get him off her. [Information deleted].
She told police that after he left she felt highly emotional and wanted to have a shower but couldn’t as that would destroy evidence. She then went into her room, put some food, water and her jacket in her bag and walked to the [Hospital]. Whilst walking she rang 000 and asked for the Police, who arrived shortly after she did at the Hospital.
She was admitted to the Hospital and was seen by the sexual assault doctor [named] who provided a sexual assault kit and took a swab and blood.
After she finished at the Hospital, Police took her to her home and took evidence and she then went to the Police Station and provided Police with the statement.
As counsel for the Applicant has drawn to the Tribunal’s attention, she appears to have signed each page of her statement [with an assumed identity] instead of her name. Only on page 5 does she seem to start to sign her real name but crosses it out and writes [the assumed identity]. The Applicant’s Counsel submits the Tribunal can draw inferences from this.
THE APPLICANT’S EVIDENCE
The Applicant married his wife in Kenya, and after working for a while in Turkey came to Australia at his wife’s insistence on 9 January 2015.
He had worked in Turkey as a sound engineer earning about a $400 per week and after a while his wife went to Australia and earned $1,500 per week and sent him money to help out in Turkey.
The Applicant was staying in Turkey on visitor visa and he had applied for a permanent residency in Turkey. Once his wife was back in Australia she asked him to come back with her. She went back to Turkey in 2014, and told him that she will leave him if he didn’t come to Australia with her.
The Applicant speaks 4 languages, English being one of them.
As the Applicant came to Australia on tourist visa, he wasn’t allowed to work, but his wife applied for a partner visa which would give him work rights. She was a permanent resident at that time.
Shortly after this the applicant worked in the Northern Territory as a Finance Manager. The Applicant had been making about $300-400 a week in Turkey. The Applicant’s salary was now $70,000 per annum and his wife’s was $56,000 per annum.
The Applicant stated that the changed financial circumstances changed the dynamics of their relationship. He stated that his ex-wife was a lot more worldly than him, more mature and had travelled a lot. She was more controlling and he wasn’t. His ex-wife was the authority and was in charge of the family budget.
He said he felt more independent and confident after he started earning money, but his wife seemed to resent it as she seemed to prefer it when he was more dependent on her financially and when she was controlling and he wasn’t. The relationship deteriorated from that point.
The Applicant stated that his wife had installed a key logger in his computer and laptop. He uninstalled it twice once in Turkey and once in Australia. His wife was keeping an eye on him. She was not happy when the Applicant uninstalling the key logger.
He further stated that as well as being controlling, his wife would, on a few occasions, break glasses and smash things like cutlery as well as raising her voice. She would regularly abuse him and call him a “piece of shit” when upset. He said on some occasions he would also call her “a piece of shit” in reply.
On one occasion when the applicant had an argument with his ex-wife in relation to the Key logger, the argument escalated, and his wife punched and broke a window in the process hurting her hands. The Applicant had to call her mother because he was scared and concerned.
The Applicant stated that his ex-wife didn’t respect him and regularly belittled him. He said she would threaten to leave him every time they had an argument.
On 9 September 2015 the applicant took his wife out. The next morning they had an argument and she left and never came home. He found out that she had begun a relationship with a mutual friend.
The Applicant stated that this incident brought about the end of their relationship.
During the argument of 10 September 2015, the Applicant had a conversation with his wife that their relationship was no longer working. He told the Tribunal that he knew that this would result in withdrawal of his partner visa sponsorship application. The Applicant stated that he didn’t know about the fact that his ex-wife had changed the names on the lease nor that she applied for an interim DVO.
On that day he said his wife had left home for work and never came back. He received a text from her saying that she was staying with her mother. He later helped her move her belongings out of the home they lived in.
The Applicant volunteered to the Tribunal that he was given a traffic fine ($410 for low range PCA being a P Plater who could not be over .000). His ex-wife had accused him of domestic violence on that same day. The Applicant had stated that he was with another woman on that day, they had glass of wine on that day. It was on friendship level and not sexual in nature. (He also thought he was allowed to drive but had to be under the .05 limit) The Applicant had to ask his friend for a statement to prove that he didn’t beat his wife and he was with her and not drunk.
He said that he never hit his ex-wife or any woman. The Applicant stated that that his ex-wife did slap him once while they were in Turkey.
The Applicant also stated that his -wife assaulted one of his friends and strangled her by the neck. He was very upset about that incident.
When he received his interim DVO he said his lawyer advised him to give an undertaking not to approach his ex-wife or to contact her. That occurred and the order was then dropped. There was no hearing.
As a result of all the issues he had with his wife (who he is still legally married to as no divorce proceedings have been taken), the Applicant left Alice Spring and came to Sydney around May 2016.

The Applicant made a Statutory Declaration setting out a lot of the above which he adhered to at the hearing.
CRIMINAL CONDUCT
Applicant confirmed that he had sex with the victim. The Applicant explained that he had seen her before at her place of work, a [business] in the inner city and that he had [visited] there twice.
INCIDENT OF 17/18 AUGUST 2017
The applicant moved to Sydney and soon got involved in the local amateur music scene meeting an eclectic bunch of people several of whom gave evidence for him. He had several jobs and was self-employed running a small car detailing business at the time of the incident.
He would often busk with friends and played piano and /or sing in pubs, cafes and on the street with his friends.
He said he first saw the victim Ms X when he was [visiting] the [business] she worked in. He said he had seen her there on 2 occasions before the incident.
He said he met Ms X at the [named] Hotel on the night in question but could not remember the exact time.
He said he wanted to have a beer and smoke and then head home as he had been doing some heavy manual work all day. He said they had a general chat together.
The Applicant was told that the victim had told Police that she was tired and wanted to go home. The Applicant disagreed, he stated that the victim came across as interested in him and he invited her to his place to hang out and listen to some music. Afterwards they got up to leave. The Applicant stated that the victim was flirting with him. The Applicant said they went out, and walked out of the hotel side by side. He said he had one beer at the pub and had one beer with a friend between about 4 and 5 pm on the 17 August 2017.
He said he was trying to get a cab so the victim and he could go to his place as it was too far to walk when he noticed she had a bicycle. This confused him a little but they settled the issue that they should go to her place instead.
They walked to her home [information deleted]
The Applicant then told the Tribunal that Ms X went in first and he remained outside and was then invited inside. Applicant then declined to give a further account of events and claimed privilege on the advice of his counsel. He did however continue to answer a number of questions put to him by counsel for the respondent.
He did deny that Ms X had ever said anything about [her specified pets] nor had she shown him [these pets]. He also said she didn’t tell him [specific personal information]. The Applicant disagreed that he forced the victim on the couch in order to have sex with her.
The Applicant stated that he was sitting on the couch, and complemented her on her beauty, he asked her if she wanted to be intimate with him and the victim said: “yes”. The Applicant said when he was leaving, he asked her for directions, and she explained to him where to go. The Applicant asked her for her phone number and the victim provided him with her number. He hugged her and left.
The Applicant was asked whether he thought that victim was [a member of a specified subculture], but he declined to answer. He was asked whether it was normal for him to have sex unprotected, and he said he didn’t have any protection otherwise he would have used it.
He was further asked that if he was uncomfortable with the state of the house and wouldn’t that have stopped him from having unprotected sex with Ms X. At that point his Counsel claimed privilege and objected to the question.
The Applicant was asked if the victim was struggling while he was having sex with her; and he said she wasn’t, and in fact the victim asked if they can go another round. The Applicant said he declined but asked if he could stay overnight as he was very tired from working all day. He said the victim then left the room and when she came back he had dozed off and she woke him up and asked him to leave.
He said he can’t remember how long he was in the house.
[Information deleted].
He also said he had seen a [specified item] in the lounge room but seemed a bit vague on this and it did not appear in any photos taken later that day by the Police.
He told the Tribunal despite the smell and the initial state of the house when he entered it, he was keen to have sex, but [information deleted] and the general environment of the place did have an effect in putting him off having sex a second time.
He told the tribunal he was ultimately happy to leave when he did.
The Applicant told the Tribunal that he had gone to Ms X’s [workplace] and the hotel on several occasions after 18 August 2017 but did not see her. He did not go there specifically to see her. He said he did not ring her as he did not want to have a relationship and that he was only being polite in asking for her number.
He said a security guard had told him that the Police wanted to talk to him about Ms X who had been sexually assaulted and he went to the Police Station to see if he could assist in the early hours of 17 September 2017.
The Applicant was then shown the Police statement of Constable McDonald. The Applicant stated that he went to the Police station but didn’t agree with the content of the statement. He said he was told by the guard at the hotel that Ms X was abused and the Applicant said it was his decision that he went to the Police Station not that he was the one they were looking for.
The Applicant disagreed with the statement of Constable McDonald, which stated that the Applicant came to Police Station as the guard had recognised him as a person who by the name of “Ms X” had been raped by. The Applicant had told Constable McDonald that he had come to clear it up and that “I went to her house, I had sex with her and I was so drunk that I passed out. Then she asked me to leave”.
The Applicant said he did not say that and also that he was only concerned for the welfare of the victim that’s why he went to the Police Station.
The Applicant was then asked questions about his bank statement, which showed that he made 2 purchases from the hotel on 17 and then 18 August 2017 and 2 other purchases from another hotel, again, one each on 17 and 18 August 2017 respectively.
The Applicant disagreed that he had 2 drinks at the Hotel. He said that on the night in question he only had one drink at the Hotel and an earlier one between 4 and 5 pm with a friend at the other hotel.
The Applicant called 4 character references, three men who all shared with him a love of music and a lady who was a Pastor of a Church that catered for predominantly gay people.
WITNESS 1
Witness 1 provided 2 letters to the Tribunal in support of the Applicant. Witness 1 was a Musician.
He said he was concerned about the welfare of the Applicant. He was shocked that the Applicant was in detention. He became friends through a mutual love of music. He would sometimes help the Applicant wash cars for a living and the Applicant would busk with him and participate in Jam sessions at inner city venues.
He said the Applicant had been to his house on many occasions (he lived in a studio). He said the Applicant had told him of his problems and he had advised the Applicant to do everything by the law.
He said that the Applicant never talked badly about women nor did he ever put them down. He said the Applicant came across as a nice person. He said “I didn’t see that he was danger to anyone”. The witness felt comfortable hanging out with the Applicant.
Witness 1 said he busks as well to make money “it helps to pay the rent”. The Applicant would play Piano for him.
He was asked if he had ever experienced anything bad from the Applicant, and he said no. He said he had advised the Applicant to get his visa papers done properly, and the Applicant has done that.
Witness 1 seemed very upset that the Applicant was charged with rape. The witness stated that he liked the Applicant and had him over to his place many times. The Applicant doesn’t use drugs. They were making music together. He stated that the Applicant doesn’t pose a risk to the Australian community. The Applicant supports his family back in Kenya.
In cross examination the witness told the Tribunal that he first met the Applicant in 2015, and that the Applicant had been to his studio some 10-15 times. Further they had done about 10 car detailing jobs together.
He said that to his observation, the Applicant enjoys a drink but he had never seen him drunk.
The witness told the Tribunal that the Applicant did discuss the incident with him.
The witness read from his second letter, which he wrote after he was told that the Applicant had been charged. He said the Applicant told him he did have sex with the woman and she didn’t stop him. The Applicant had also told him that he was not comfortable with the [surroundings].
He said the Applicant had further told him that he (the applicant) had left amicably after the sex.
The witness volunteered that the person he knows (the applicant) would never do such thing. He has already paid for what he has done. He has spent time in gaol and detention centres.
The Applicant also told him it was a one night stand and that he knew the person and they had met in bar and had sex only once. The witness felt that the Applicant shouldn’t have gone around and had sex with this person, because “you can’t trust people”. He also said that he asked the Applicant whether the woman asked him to stop, but the Applicant said “No”.
He went on to say that the Applicant is a good person and his visa history shouldn’t be tainted, but if he had done what he is charged with then he should be made to pay for his actions.
He concluded his evidence by telling the Applicant to work hard and get on with his life.
WITNESS 2
Witness 2 works in the financial sector and appoints ASIC officers 3 days a week, for the remaining 4 she is the Pastor and convenor of an alternate church for same sex people in the inner city. She had provided a supporting letter to the Tribunal.
The Witness stated that she wrote the letter, because the Applicant lived in the same street as her church and because she knew and liked him.
She said she first met him when he came to the church, saw the Piano, started playing it and obviously liked the place. He played the piano in the church for 3 weeks before his arrest.
The Applicant shared with her the issues with his immigration status and employment for those three weeks prior to being detained.
She said what you saw was what you got from the Applicant and he always did what he said he would. The church service where he played the piano lasted from about 5pm to about 8 pm all up. He was always reliable in turning up, every Sunday. She admitted she was a trusting character, indeed some may say naïve, but she gave the impression she liked being that way and gave the tribunal the impression she had not been badly burnt by being that way.
The Applicant rang the witness whilst he was in detention to request a character reference. She was only too happy to oblige. She had already given the Applicant her number and had visited him at each of the remand centres and detention camps he was detained in (3 in all).
She told the tribunal that she hadn’t witnessed anything that showed the Applicant to be of bad character.
She said he got on very well with her largely same sex congregation and there was only one boy who had a problem with him being there because the Applicant was not gay, but that the Applicant was not remotely concerned about that and there were no issues between he and that person and they got on well at a personal level apart from that difference of opinion.
She also said that she communicated with the Applicant over the phone. He phones her on average once every 3 weeks.
Under cross examination the witness said she never asked him whether he was guilty or not. She supported him without asking any questions. The witness stated that it was not relevant for her, she trusted him as a result of what she had seen of him. Nothing of what occurred between the Applicant and Ms X properly was discussed between the witness and the Applicant. She was aware of what the charges were.
WITNESS 3
The third witness was a support worker for people with autism and he was also a musician. He gave his evidence on the first day of the hearing and turned up the next day to support his mate.
He wrote his letter of support a couple of months ago. The Applicant had rung him up and requested the letter.
He said the Applicant had explained what had happened and he had offered to write a character reference.
He said he had met the Applicant a couple of years ago whilst living across the street from each other. They met due to their music.
He said the applicant was likeable and he struck up a conversation with him and the Applicant invited him to his room to show him his instruments and his music. The applicant offered to share his meal with him (a half chicken) which he thought was a nice gesture. The witness was struck by the generosity of the Applicant.
The witness’s girlfriend whom he lived with was not at the time working, and she also saw a lot of the Applicant. The witness stated that if he had any indication that the Applicant was untrustworthy he wouldn’t have allowed his girlfriend to be friends with him or see him in his absence.
The witness stated that he would happily leave his girlfriend with the Applicant alone in a room even now, even after that the Applicant has been charged with rape, because he trusted him. He would not do the same with some of his friends who he said he found a little sleazy. He had particular concerns with the magician who lived 2 doors down who regularly visited the place as he kept his doves there (doves are used in magic tricks).
It seems, under cross examination that the witness conceded that these concerns were not reciprocated by his girlfriend who quite liked the magician.
He said he was aware of the charges and said the Applicant was his close friend and they regularly messaged each other sharing music ideas especially. The Witness stated that he prides himself and takes great satisfaction from having “great people in his life and that the Applicant is one of those great people”.
He told the Tribunal that he hadn’t seen anything or had any indication that Applicant was not of good character and that he wouldn’t have visited him in detention nor continued to support him if he wasn’t sure that the Applicant wasn’t “a great guy”.
He said he lived in a house with 5-6 roommates and he would visit the Applicant a couple of times a week. They would play music and hang out.
In the witness’s household at the relevant time were 3 men and 2 women and the applicant got on well with both the males and the females.
The witness said he did lend the Applicant money when the Applicant had to pay for his immigration and visa paper and that this has not been repaid as the applicant has since been incarcerated and unable to pay.
Under cross examination the witness said he has spoken to the Applicant about the incident.
The Applicant had told him that he was excited about his job and went out on a weekend to have a drink to celebrate. He met a girl and they had gone to her house. He had a bad feeling about the [house]. He battled with his gut feelings and but eventually had sex with the person. He felt bad afterwards.
He said the applicant had some days later gone to the same bar and was relaxing. Staff there had informed him that they were looking for him. The Applicant had told him that he decided to go to Police station and answer any question they had. He was then arrested on the spot. The witness didn’t hear from him for a couple of months until he was contacted by the applicant to provide a character reference.
The witness was not sure how the Applicant met the woman just that they met in a bar. Witness stated he wasn’t sure of the date or how long afterwards it was before the Applicant presented himself to the Police after the incident.
The witness further stated that the Applicant told him that he had compromised his standards by having engaged in sexual activity with this person. The witness told the Tribunal that to his mind, due to what he had been told about the state of the house and other things about Ms X she was not the kind of person his friend the applicant likes to be intimate with. It was the state of her house he didn’t like.
The witness also told the tribunal that the applicant had told him that he and Ms X had discussed whose house they should go to. The witness stated that the woman had a bicycle and it was easier to go to her place rather than the Applicant’s.
The witness also volunteered that one night stands were common and indeed were “an Australian tradition” he also referred to a dating app on mobile services. The witness explained that he is not sure if the applicant had met the woman on tinder, (the dating app) and said he may have met her in the bar. The woman wasn’t a friend.
WITNESS 4
The Applicant had requested whilst in custody that this witness provide him with a character reference.
He met the applicant about 3 years ago in a music venue and he subsequently played music in the street with the applicant. He said the applicant had stayed at his place for a week or two about 2 years ago. As he needed a place to stay for a little time and the witness had offered him a place to stay.
The witness was not concerned with the Applicant staying at his place and he said the applicant was a very respectful, nice, clean person to live with.
The witness further stated that he did go out with the Applicant to date women and that accordingly he did see some interaction between the applicant and women. From what he saw, the applicant was never disrespectful towards them.
The witness had visited the Applicant twice in Villawood to give him moral support. The Applicant had called the witness once, and told him that he was being charged with sexual abuse and that he was unjustly accused.
The witness stated that he doesn’t remember all the details but recalls that the Applicant told him that he went to a woman’s house and had sex and it was consensual.
He said the Applicant did drink but he had never seen him drunk. He was asked if the Applicant told him [specific personal information about the victim], or told him about the state of the victim’s house, and he said he didn’t remember.
There were number of other written references in evidence attesting to the Applicant’s good character and strong work ethic including several glowing references from his time at a community radio station at Alice Spring, including a reference from his local Member and former Chief Minister Adam Giles.
There was also evidence from various Police Officers who investigated the alleged offences.
One of particular note was the statement of Constable McDonald.
Constable McDonald stated that the Applicant came into the Police Station on the 17 September 2017. He wrote in his note book at the time that the Applicant came in at 04:10am and told him that a security guard at the pub recognised him and he was the person whom Ms X was raped by and he had come in to clear it up.
Constable McDonald wrote in his note book that the applicant had told him “I went to her house, I had sex with her and then I was so drunk I passed out, and then she asked me to leave”. The Constable then added…. “I didn’t caution P/N at this time as I had not formed a reasonable suspicion he had committed any offence”.
This conversation took place at 5am. The Constable then made a note of a conversation started at 6 am between the Applicant and Sargent Schindler, where the Applicant was arrested, cautioned and subsequently charged.
The applicant as related earlier stated he did not utter those words and in a subsequent record of interview later that day also denied saying them.
At question 80 of the record of interview of 17 September 2017, the Applicant was asked when you came into the Police Station, do you remember what you said to the officer at the counter? “Answer : - not really”
Q 81 “Can you remember the conversation at all? “ Answer: NO”
Q 82 It was put to the applicant that Constable McDonald has said when you came in you said.” I went to her house. I had sex with her and I was so drunk I passed out. Then she asked me to leave ‘Do you agree you said that? “Answer “I did not say that”.
FORENSIC EVIDENCE

[Named Doctor] of the sexual assault unit examined Ms X between the hours of 3:30am and 5:30am 18 August 2017 at [the] Hospital Sexual Assault Centre.
[The named Doctor] detailed in her statement the history of assault as told by Ms X which is similar as to what was contained in Ms X’s Police statement but which added the fact that the Applicant didn’t wear a condom.
[The named Doctor] noted the past medical and gynaecological history of Ms X was of no relevance to her examination.
[The named Doctor] noted “Ms X was close to tears whilst giving her history. At times she had to wait while giving her history in order to calm herself and to be able to continue speaking about the events she was describing”. [The named Doctor] indicated that there was no general examination of Ms X as Ms X declined any general examination as she didn’t wanted to be touched.
Similarly Ms X declined a genital examination.
[The named Doctor] added “Ms X didn’t allow me to examine her or to collect any forensic swabs, with the exception of a buccal swab and peri-oral swab”.
When Ms X performed the necessary activities to take the buccal swab and peri-oral swab she covered the relevant parts of her body with a DNA free sheet. [The named Doctor] was unable to observe the swab collection as the DNA sheet was covering the relevant parts of Ms X body.
[The named Doctor] did note in her statement “that penal oral penetration is commonly not associated with any injury”.
[The named Doctor] “Ms X reported non-consensual, painful penal-vaginal penetration and penal-oral penetration; I am unable to comment further, as no physical examination was performed”.
Photos taken by Police 18 August 2017 of Ms X house, were tendered in evidence .They were taken by Police later on the morning of the incident. These photos were shown to the Applicant and he agreed they represented the house as best he recalls it with the exception that the photos did not show [an item] which he said he saw at the house.
The photos tendered were enlarged and had page numbers on them.
Photo number 10 showed the hall with [specified features] as did photo number 12.
Photo number13 showed a couch with [other features].
Photo number 14 showed the bed with [more specified features].
Photo number 15 showed the base of the bed with further [features] and photo 16 showed the top right hand side of the bed with a table and [other features].
Photo number 17 shows what appears to be wall of another room with further [features].
Photos number 18 and 19 are further shots of the bed room area as is phot number 20 which gives a good long shot of [specified features] as does photo number 21.
Additional photos were tabled from the CCTV cameras at the Hotel.
One photo shows the Applicant walking in the Hotel. Another photo with “front bar 2” written on it, shows what the Applicant recognised as the Ms X walking out slightly in front of him, she appears to be 2-3 meters in front. The Applicant is shown where the words “front entry” appear and there is a further photo of the Applicant and Ms X pushing her bike in the street after leaving the hotel.
SUBMISSIONS
APPLICANTS SUBMISSIONS
Counsel for the Applicant made an opening submission and then a concluding submission on day 2, he said; “Criminal conduct was allegedly engaged in but the sexual assault investigation doesn’t show if such criminal conduct had occurred.”
He conceded that sex had occurred between two consensual parties, but nothing positive was shown by the prosecution to show that a criminal offence was committed.
He said the Tribunal has to be comfortably satisfied that such criminal conduct occurred, and that the presence of semen was by no means enough to allow the Tribunal to infer that a sexual assault occurred. He posed the question why then would the victim make up a story. He suggested that maybe she had a partner in [another] relationship and she thus had a motive to accuse the applicant of sexual assault, perhaps in case she fell pregnant.
He submitted that just because the victim made a statement to police doesn’t mean that sexual assault occurred, merely that there was an incident that the police needed to investigate.
It was relevant that the DPP hasn’t disclosed why the matter was discontinued. He said it would appear to be in the public interest to prosecute and convict a Kenyan citizen who was on a visa who had committed rape against an Australian citizen yet the DPP pulled the prosecution. He noted that of course they don’t have to give a reason. He further submitted that the victim did not attend the tribunal either in person or by phone to substantiate the claims. However the applicant is here to defend the charges brought against him.
The letter from the DPP he said, shows that there is no evidence that could secure conviction.
Also, the victim had made the compliant after the applicant had left and no evidence was provided to corroborate the claims made by the victim, no vagina tear, no scream, no bruise, and no examination of her body.
He submitted it all pointed to consensual sex between the parties.
The Applicant was charged and the charge was dropped, so how can the applicant prove otherwise that he will not re-offend.
The Applicant was kept in custody on remand for 9 months, as he could not get bail as he was seen to be a flight risk as he had no fixed place of abode and no connection to the Australian community.
Counsel quoted the case of Gong V Minister for Immigration and Border Protection & Anor [2016] FCA 561. He said in that case the police laid charges but the case shows that the charges laid is not sufficient to presume that an offence has been committed, in fact it has to be proved.
He said without the satisfaction that an offence occurred the Tribunal can’t be satisfied that sexual assault occurred, the Letter from the DPP, in the Supplementary G documents, shouldn’t be taken as evidence to presume that an offence has occurred.
Counsel for the applicant said on day one that the applicant was not going to give evidence due to the uncertainty of whether the DPP may seek to use any evidence to reactivate the charges, but on day 2 the applicant decided to give evidence but with some qualifications (as was his right) about claiming privilege in relation to the actual incident.
Counsel made further submissions on day one in relation to the DVO that subsequently were irrelevant as the applicant gave evidence which was effectively accepted by counsel for the respondent who indicated that the respondent no longer relied on the circumstances of the DVO as being of relevance is no question of re-offending.
The applicant has been accused but it hasn’t been tested and the Applicant hasn’t been proven guilty, thus there is no pattern of offence. The first accusation came out of breakdown of a marriage and the second was the alleged rape charges that were later dropped.
If the Applicant fails this character test then he fails all the other visas and all the other visas are off the table. Therefore this review is critical to the applicant, as he may not be able to apply for any other visa.
The DVO arising and this rape charge doesn’t show pattern, however at any rate the Respondent conceded the DVO allegations would not now be relied upon.
Counsel further said a contemporaneous complaint (which the rape complaint certainly was) has to be followed through with a trial. A complaint is easy to make.
Ms X declined the virginal examination and provided the swab that she had taken. Its not helpful when the victim is claiming to have been raped to not provide a vaginal examination to prove that such crime did in fact took place. There is no conviction.
The Victim claimed that there was yelling and screaming, but there was no evidence that anyone that heard the scream.
The Applicant was asked if he did see [her pets] or if it was discussed with the victim, Applicant stated that there was no discussion of [pets] or animals. The Applicant did mention that the victim did mention something about refugees.
Also, the DPP had dropped the charges. The DPP is obliged to run these matters if it’s in the best interest of the public. It could be reasonably concluded that the DPP should prosecute this matter of a Kenyan Man on a visa raping an Australian woman. The only other conclusion we can come to is that there was nothing that DPP could prosecute on. It is “in the realm of far fetchness”.
How can one be at a risk of re-offending, if no crime has occurred. Counsel said the contemporaneous complaint was changed and is not corroborated.
The Applicant has maintained his innocence at all time. The Applicant has already been incarcerated for those charges for 9 months. The Applicant has made an effort to improve himself and his family. The Applicant gets anxious when he is not working. Applicant has provided multiple witnesses testifying to his good character.
Further, the victim hasn’t been examined by the medical practitioner at her own request. It is quite unfair that the applicant has been charge with serious offence yet the victim hasn’t provided any independent evidence to prove her claim. No reasonable person can come to the conclusion that he will re-offend if the is no conviction and no crime.
The Applicant’s life has been hijacked and he wants to move on with his life. There is no risk of offending when the crime hasn’t been proven or it has been satisfied that he fails the character test. This decision is critical and will decide how the applicant’s life will be.
The Applicant’s Counsel made some further submissions he did not rely on subsequently as they went to an unrelated and irrelevant consideration under the Act.
The Tribunal should have regard to the fact that the victim signed her name as [an assumed identity] on her complaint statement to police. This indicated she had [particular interests].
He said the question is whether the Applicant is at the risk of re-offending.
RESPONDENT’S SUBMISSIONS
The Respondent submitted that the mere laying of charges was relevant and cited in Gong v Minister for Immigration and Border Protection [2016] FCA 561 at [45] and [47].
The Respondent said the Police had a reasonable basis for laying the charges. The Police had reasonable belief that a criminal act had been committed and as serious one at that.
Police believed that there was a case to be answered as did the committing magistrate and the DPP (at least for about 9 months till they decided otherwise).
The Respondent submitted that whilst the charges were dropped we still have the Crown summary and the victim’s version of events. On day 2 of the hearing we were finally provided with the DPP brief (In the Tribunal’s view not a satisfactory situation in itself as the respondent should have been given the documents months ago and should not have had to go to the trouble of subpoenaing them).
The Respondent went on to say there was medical evidence that a sexual encounter had occurred .and that the Applicant hasn’t taken the opportunity to fully answer the charges. The Respondent noted his friends had provided second hand version of the event.
The Respondent submitted that he had not satisfied the Tribunal that he is of a good character.
The Respondent further submitted that Ministerial direction: 65 talks about if the conduct which is in issue is so serious then there is a balancing act. If the conduct is not of serious nature then the risk is not so serious.
Regard should also be had to the bail summary and the charge sheet that was provided by the Police.
The Respondent’s written submission also referred to the Ministerial Direction 65 criteria as well.
The Respondent also corrected the Applicant’s Counsel and said that the Applicant can apply for a few visas despite his visa refusal which don’t rely upon the issue that he fails the character test.
The Respondent pointed to the fact that a Phone call made to 000 seeking police assistance very soon after the sexual activity occurred. The Applicant also told Constable McDonald latter on that “he was so drunk that he passed out”, which was consistent with the victims recollection of events.
The complaint could not have been made any sooner than it was.
There was no reason advanced in evidence to indicate why it was made other than the fact there was an assault. If it didn’t happen why did she report it?.
Where was the motive to provide false statement. The victim has called 000 and took herself to the hospital to perform the rape kit test. The Tribunal should find that the applicant is of not a good character.
The victim had told the applicant [specific personal information]. The victim declined vaginal examination because she didn’t want to be touched. The victim had to pause while giving her statement due to the trauma. She was upset.
The Respondent conceded that the character references presented to the Tribunal, both orally and in writing, all spoke highly of the applicant, but the interaction between them to intimate interaction is quite different.
Look at the Act. The test is that the Tribunal has to be satisfied that there is not a risk to the Australian community that if he were allowed to stay he would not engage in criminal conduct. There is discretion to the Minister to refuse a visa if the Minister is satisfied that the person hasn’t passed the character test. The test is a specific one.
DISCUSSION
The Tribunal has to look at whether the delegate came to the correct or at least the preferable decision in finding that the Applicant did not pass the character test pursuant to subsection 501(6)(d (i) of the Act. Namely, if he was allowed to remain in Australia is there a risk that he would engage in criminal conduct in Australia.
The evidence shows that the Applicant does not have a criminal record either in Kenya or Australia. The Applicant volunteered through his counsel that he did have a $410 fine from Alice Spring’s incurred after he had drunk a glass of wine and was stopped by Police. As he was a P plate driver he couldn’t have any alcohol in his system and he stated he thought he was allowed to have 2 or 3 drinks over a period of time. This offence was volunteered by the Applicant and was not in the documents supplied by the Respondent.
The Tribunal is satisfied that the above criteria in relation to risk can occur even if a person has been charged with but not convicted of a criminal offence. It is for the Tribunal to decide on the facts of each case.
It is open to the Tribunal to accept that a person may fail the character test even if they don’t have a court conviction.
It is however, much more common for a person to be convicted of some offence which then makes it difficult to say they are of good character and then the tribunal has to look at the provisions under Ministerial Direction No.65.
The Applicant’s situation is somewhat unique and neither party nor this Tribunal could find a case that was anywhere similar in terms of its factual situations. On the one hand the Respondent’s case contains some very serious allegations of a crime that is rightly regarded as one of the most serious a person can commit.
However, the DPP did not proceed with the matter despite the Applicant being committed for trial. The DPP directed by letter of 4 July 2018 no further proceedings in respect of further charges.
They added: “I wish to advise that the direction to take no further proceedings was made on discretionary grounds and not on the basis that there was no reasonable prospect of securing a successful conviction”.
We do not know what those discretionary grounds were. All that the Tribunal can reasonably infer is that is the DPP must have given serious consideration to the exercise of the discretion because sexual assault, especially rape is such a sensitive, emotive and topical issue that generally speaking the DPP will run cases because it is in the public interest to do so.
As was mentioned by counsel for the Applicant (who advanced several theories as to why the DPP may have discontinued and also why the DPP felt the need to put in that there was a reasonable prospect of securing successful conviction), at the end of the day we will probably never know the real reason.
The fact is that the DPP has directed no further proceedings. The Tribunal does agree with both parties that this does appear to leave open an option of recommencing proceedings as there has been a committal but the matter has not been formally dismissed by a court.
Clearly had the matter gone to trail we would have had a result. Whilst it is a course of action this Tribunal would have felt desirable, and it is possible the DPP could reconsider and reactivate it. It does appear that the DPP has after due consideration of all the relevant factors, exercised its discretion and come to the conclusion it did. That is the situation the Tribunal is left with.
The victim’s statement describes what appears to be a relatively brief but violent and terrifying sexual assault involving penial and digital penetration. Further, as soon as practical after the incident the victim took herself to the Hospital and reported the matter by dialling 000 to the Police and made a statement to the Police on the same day.
There was independent evidence showing that the victim was distressed and was crying.
It is highly unfortunate that for whatever reason the victim did not allow a physical examination of her body and did not allow a vaginal examination. Had she done so and had a physical examination shown bruising or even red marks indicating recent trauma to the areas of her body where she said she was roughly handled by the Applicant, then that would have been excellent corroboration of her allegations.
Similarly, had a vaginal examination been conducted and similarly shown any trauma that would have been excellent corroboration.
Unfortunately for whatever reason she did not allow an examination and [the named Doctor] wasn’t able to even have a cursory look at the parts of her body that might have been affected as she had a DNA sheet over the relevant parts of her body at all times.
Further, despite the very best efforts of the Respondent and the Tribunal, and I commend Counsel for the Respondent for her efforts in this regard, the victim was simply not prepared to assist by giving evidence and did not avail herself of the opportunity to give evidence by telephone so she wouldn’t have to confront the Applicant.
The above problems certainly detract from an otherwise powerful statement made to the Police. They raise the question/s as to why Ms X took that path.
The Applicant at all times has denied any sexual assault allegations and has insisted that the incident was consensual sex. The Applicant gives a somewhat different version as to exactly what was talked about in the Hotel and denies anything was said about [pets] or animals in general. He also said they left the hotel virtually side by side, but does say he was separated from the victim outside when he was looking for a taxi.
I don’t think anything much turns on that as both parties were quite clear that it was all very civil until he got back to her place and at any rate the pictures show them in close proximity to each other.
The Applicant gave limited evidence of what occurred back at the property because of his Counsel’s concerns about self- incrimination, but there was sufficient evidence to confirm that there was definitely a sex act and that he was tired either from work or a combination of work and drinking too much and the sex acts were continuous so far as they went and he then left the premises. The issue was consent.
His evidence as to feeling uncomfortable in the house as a results of [specific features of the house] plus his tiredness for whatever reasons are certainly capable of explaining why he was happy to leave after the initial act/s.
It is also relevant that he told several of his friends when asked about the incident about the state of the house and his feelings of unease.
A main area of concern the Tribunal had with his evidence was his denial that he told Constable McDonald that a security guard recognised him as the person who Ms X was raped by and especially that he denied telling Constable McDonald that he was so drunk that he passed out and that she asked him to leave.

Constable McDonald made contemporaneous notes and I have no difficulty in accepting what is in those notes and I must say that denial by the Applicant in that regard is concerning.
Despite the Counsel for the Applicant noting that the Applicant denied the conversation in a record of interview conducted later that morning, I would point out that he also said in that record of interview that he could not recall what was said in that conversation (see Questions and Answers 80, 81 and 82 detailed at page 25 of this judgment). I reiterate what I said during the hearing and that is I prefer Constable McDonalds version. He took contemporaneous notes.
The evidence of the Applicant’s friends and especially the 3 male witnesses who all gave sworn evidence assists the Applicant, notably in relation to their observation of how he related to women.
One witness stated that his girlfriend was often alone in the presence of the Applicant and the Applicant never did anything untoward to her. He further said that whilst he would have reservations about a few of his friends left alone with his girlfriend, he had none so far as the Applicant was concerned.
The Pastor also spoke highly of the Applicant and stated that although he had only come to 3 of her church services before being apprehended, he got along really well with her congregation which were mainly gay with the exception of one boy who felt that the Applicant shouldn’t be there as he was straight. There was no issue or incidents of any kind between that boy and the Applicant and the Applicant was very friendly with everyone in the Church.
From the evidence before the Tribunal, including the written evidence, the only other evidence relating to potential problems as far as Applicant committing crimes relates to the interim DVO from his wife that became a consent agreement after being withdrawn.
I must say the documentary evidence from doctors and health professionals in relation to the Applicant seeking help for his marital problems seem to back up to an extent what he said in his evidence in relation to the DVO. Also the application for a DVO is light on any facts and merely accusing him of being abusive and pushing his wife out of the house.
It is not alleged how he pushed her out of the house or how he was abusive. He gave evidence in detail as to how he never hit his wife and described how she was difficult to live with and would often damage cutlery and verbally abuse him and put him down. He readily conceded that he would verbally retaliate and often call her names on occasions too.
He painted a picture of a woman who wanted to be the boss in the household and when he finally got a job that paid better than hers, she seemed to take umbrage at that fact, leading to a fairly rapid and irreconcilable break down of the relationship. It appears that DVO proceedings and the application to take her off the lease were part of coordinated actions to enable her to leave the matrimonial home and take up with a mutual friend.
After hearing this evidence counsel for the Respondent indicated that she no longer wished to rely on the DVO as being of relevance in the proceedings and the Tribunal agrees with that assessment.
This Tribunal is in a bit of dilemma in that on the one hand we have a police statement form Ms X which is powerful and which is made only hours after the event, the event being reported immediately to the authorities plus there being some independent evidence of distress as well. There is also the fact to consider that the victim has maintained [specific personal information].
Against that we have sworn evidence by the Applicant that doesn’t deny the sexual encounter but says it was consensual and paints a very different picture of what happened back in Ms X home. Whilst there are some aspects of that evidence that I find a little difficult to reconcile, such as the friendly nature of their leaving and especially why he doesn’t agree with what Constable McDonald has noted in his notebook as to what he said to him at the police station, his apparent concerns about the state of the house and [internal features] have the ring of truth about it.
His concerns about the state of the house are also backed up by the police photos, several of his friends giving evidence that he had told them something similar and possibly also by Ms X signing her name on her compliant statement as [an assumed identity].
The Tribunal is also quite concerned as to why the victim, who up until she got to the hospital had done all the sensible things a victim should do after being violently assaulted then didn’t consent to any physical examination by [the named Doctor].
Accordingly as far as the evidence before The Tribunal, goes, all I can definitely be comfortable about is the fact that the Applicant and Ms X had sex. I really am unable with any degree of confidence to say whether it was consensual or otherwise. I have my own suspicions and theories as to why the Applicant denied telling Constable McDonald what the constable recorded him as saying and as to why 1. Ms X didn’t consent to any examination, 2. Why she refused to assist the Tribunal giving evidence. And 3 why she signed her name as [the assumed identity].
Further I can only speculate as to why the DPP didn’t proceed and I can suspect it may have to do with the victim and the discussions that they may have had with her but I don’t know.
I note what counsel have said about the effect of bridging visa cancellation and non-cancellation and the effect of whatever ruling I make may have on future application/s by the Applicant. I note the main application before the Tribunal relates to a protection visa and the immediate affect that my decision will have is to whether the Applicant remains in detention or release into the community. This is however an irrelevant consideration.
The 15 character referees (including the 4 who gave evidence in person) all spoke highly of a hardworking, pleasant and enthusiastic man who is willing to help others and who is a very talented musician. Many of them were aware of his predicament and he had told a number his version of the events of the night in question.
His efforts in the NT at Radio station are commendable and he seems to do his job running his own car detailing business in Sydney well.
They all speak of him as relating well to people, treating others with respect and not being a person who takes drugs or who abuses alcohol. Several specifically say they feel he would be an asset to Australia.
One of his friends told the Tribunal that he has accommodation available for him to move into, albiet of a low standard (a caravan in his yard) and his eclectic bunch of largely musician friends plus the Pastor certainly strike me as being good people that not only have his interest at heart but who will also exercise a positive influence on him in terms of ensuring that he doesn’t break the law.
I am further mindful of the fact that he doesn’t have any prior conviction either in Australia or Kenya apart from low range PCA which appears to have been given to him as a Traffic infringement notice not requiring any court attendance. Nor does he have any outstanding charges or matters of any kind, even civil, before any Court or Tribunal (with the exception of the AAT).
Whilst I would have felt the best course of action was for the DPP to proceed to a hearing so a definite ruling can be made by a court as this clearly would put any issues remaining in this matter beyond doubt as a conviction would almost certainly automatically preclude him from remaining in Australia and an acquittal should lay to rest any lingering fears in terms of him remaining. It seems the DPP has decided for unexplained but no doubt well considered reasons otherwise.
Taking all the above evidence into account and analysing it all as best I can in the circumstances of this case, I have come to the conclusion that the preferable decision is that I find there is minimal risk that the applicant would engage in criminal conduct in Australia if his bridging visa is reactivated.
CONCULSION
For the reasons given above I find the preferable decision is that the decision that the Applicant didn’t pass the character test and therefore his bridging visa be cancelled should be revoked and that his bridging visa be reinstated.
It should be noted that this doesn’t stop the Respondent from taking any appropriate action to revoke or grant any visas that he may have or seek to get in future.
As a result of my decision above the tribunal does not need to consider Ministerial Direction No 65.
DECISION
The Tribunal sets aside the reviewable decision and remits the matter to the Respondent for reconsideration of the Applicant’s bridging visa, with the direction that the applicant passes the character test within the meaning of Section 501(6)(d)(i) of the Migration Act 1958 (Cth).

I certify that the preceding 275 (two hundred and seventy five) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member

...........................[sgd]............................................
Associate
Dated: 15 January 2019

Date(s) of hearing: 7 & 8 January 2019

Applicant: In person

Solicitor for the Applicant:

Solicitors for the Respondent:

J Lavercombe

D Watson

Date	Offence	Result
17 September 2017.	Sexual intercourse without consent and assault with act of indecency.	All charges were dropped on 29 June 2018.
29 June 2018	Sexual intercourse without consent and assault with act of indecency.	All charges were dropped on 29 June 2018.
Trial date of 3 September 2018 was vacated.	One count of indecent assault and four counts of sexual intercourse without consent.	The Director of Public Prosecutions directed no further proceedings in respect of all charges.