GSKD and Minister for Immigration and Border Protection (Migration)
[2018] AATA 1078
•27 April 2018
GSKD and Minister for Immigration and Border Protection (Migration) [2018] AATA 1078 (27 April 2018)
Division:GENERAL DIVISION
File Number: 2017/2759
Re:GSKD
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Deputy President S Boyle
Date:27 April 2018
Place:Perth
The decision under review is affirmed.
....[sgd]....................................................................
Deputy President S Boyle
CATCHWORDS
Migration – refusal of a visa – visa applicant overseas – substantial criminal record – protection of the Australian community from criminal or other serious conduct – sexual crimes are to be viewed seriously – risk to the Australian community – best interests of the child – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 347(2)(b), 499, 499(2A), 500(1)(b), 501, 501(1), 501(6), 501(7), 501(7)(c)
CASES
KDSP and Minister for Immigration and Border Protection [2017] AATA 2169
Labi and Minister for Immigration and Border Protection [2016] AATA 316
Lott v United States 367 U.S. 421, 426 (1961)
Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – paras: 6.1, 6.2, 6.3, 6.3(2), 6.3(3), 6.3(4), 6.3(7), 7(1), 8, 11, 11(1), 11.1(1), 11.1.1(1), 11.1.2, 11.1.2(1), 11.1.2(3), 11.2(4), 11.3(1), 12, 12(1)
REASONS FOR DECISION
Deputy President S Boyle
27 April 2018
THE APPLICATION
This is an application for the review of a decision by a delegate of the Respondent (Minister) under s 501(1) of the Migration Act 1958 (Cth) (the Act) to refuse to grant a Partner (Provisional)(Class UF) visa on the grounds that the visa applicant has a substantial criminal record and does not pass the character test (T2).
The Applicant is the sponsor of the visa applicant for the purposes of the partner visa. Pursuant to s 347(2)(b) of the Act the Applicant has the right to seek the review of the decision to refuse to grant the visa.
The application for review is made under s 500(1)(b) of the Act which allows applications to be made to this tribunal (the Tribunal) for review of a decision of a delegate of the Minister under s 501 of the Act.
The decision of the delegate to refuse to grant the visa was communicated to the Applicant and to the visa applicant under cover of letter dated 2 May 2017 (T2).
The Applicant lodged this application for the review of that decision with the Tribunal on 12 May 2017 (T1).
The Tribunal is satisfied that it has jurisdiction to review the delegate’s decision.
THE HEARING
The application was heard on 15 and 16 January 2018.
The documents before the Tribunal were:
·the Applicant’s Statement of Facts, Issues and Contentions dated 27 October 2017(Exhibit A1);
·a statement of the visa applicant dated 27 October 2017 (Exhibit A2);
·an Affidavit of the Applicant dated 27 October 2017 (Exhibit A3);
·a statutory declaration of a work colleague of the Applicant dated 27 October 2017 (Exhibit A4);
·a statutory declaration of a long-term friend of, and pastoral advisor, to the visa applicant in India dated 27 October 2017 (Exhibit A5);
·document titled “Employee Assistance Program (EAP) Service Report” dated 1 December 2017 relating to the Applicant (Exhibit A6);
·report of Fulvio Di Prinzio, psychologist dated 3 July 2015 (Exhibit A7);
·T documents comprising 312 pages (T1 – T63) (Exhibit R1);
·the Respondent’s Statement of Facts, Issues and Contentions dated 15 December 2017 (Exhibit R2); and
·bundle of documents from the State of Michigan Circuit Court for the County of Oakland.
Oral evidence was also given by the Applicant, the visa applicant, a long-term acquaintance of the visa applicant (a letter from this witness appears as T36) (witness 1), the pastor of the visa applicant’s church in India (a letter from this witness appears as T37)(witness 2), the visa applicant’s brother (a letter from this witness appears as T31) (witness 3) and the work colleague of the Applicant who gave the statutory declaration in Exhibit A4 (witness 4).
THE ISSUES
The issues for the Tribunal are:
(a)whether the visa applicant passes the character test, which in this case requires consideration of whether he has a substantial criminal record; and
(b)if the answer to (a) is no, whether his visa application should be refused pursuant to s 501 of the Act, taking into account the considerations outlined in “Direction No. 65 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 65).
BACKGROUND
The visa applicant is a citizen of India who has not previously travelled to Australia (T60, pp 235, 237).
The visa applicant has been convicted of multiple serious sex offences against an 11 year old girl in the United States of America, the date of conviction for each of the offences being 24 March 2003 (T4, p30- 32) (the charges are set out below at paragraph 37).
The visa applicant was arrested on these charges in March 2001 and was released from prison on parole in February 2011 and was deported to India in March 2011 (Statement of the visa applicant dated 27 October 2017 at [25]).
The visa applicant and the Applicant met via a website called “Christian.Matrimony.com” in August or September 2011 (Statement of the visa applicant dated 27 October 2017 at [44]; Statement of the Applicant dated 27 October 2017 at [24]).
On or about 28 October 2013 an application previously made by the visa applicant for a prospective marriage visa was refused pursuant to s 501 of the Act (Minister’s SFIC at [6]).
On 15 January 2014 the visa applicant and the Applicant were married in India (T19, p98; T60, p 236).
On 3 June 2014 the visa applicant lodged an application for a partner visa based on his relationship with the Applicant (T60, pp 235-258).
In 2014 the visa applicant and the Applicant’s daughter was born (T19, p98).
On 16 February 2017 the Department of Immigration and Border Protection (Department) sent a notice to the visa applicant advising him of an intention to consider refusing to grant him a visa because of his substantial criminal record and invited him to comment (T62, p 278-281).
The visa applicant provided a large number of documents in response to this notice, including a personal statement, statements from the Applicant and her daughter, a psychological report, submissions by his migration agent and over 30 character reference letters.
On 28 April 2017 a delegate of the Minister made a decision to refuse the visa applicant’s application for a visa pursuant to s 501(1) of the Act. The visa applicant was notified of this decision under cover of letter dated 2 May 2017 (T2, p4-25).
LEGISLATIVE FRAMEWORK
Subsection 501(1) of the Act is as follows:
(1) 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.
Note: Character test is defined by subsection (6).
Relevantly, subsection 501(6) of the Act is as follows:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7));…
Relevantly, subsection 501(7) of the Act is as follows:
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or…
Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, provided that the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) of the Act mandates that a person or body must comply with the directions. The Tribunal is such a body and accordingly must comply with any relevant direction when exercising the discretion under s 501(1) of the Act (Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J).
The Minister has made a direction under s 499 of the Act, namely “Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 65). Direction 65 applies to the decision to refuse to grant the visa to the visa applicant.
Paragraph 6.1 of Direction 65 sets out the objectives of the Act, with the following relevant to the Applicant’s case:
6.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2) Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test…Where the discretion to refuse to grant or cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
(3) …
(4) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
By way of general guidance, paragraph 6.2 of Direction 65 provides:
6.2 General Guidance
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once the decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
The “principles” referred to in the General Guidance (as set out above) to be applied by decision-makers, including the Tribunal, are set out in paragraph 6.3 of Direction 65 as follows:
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1) of Direction 65 sets out how the discretion under s 501(1) to refuse the grant of a visa is to be exercised:
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
(b)….
Paragraph 8 of Direction 65 further states:
8. Taking the relevant considerations into account
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. ...
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
Part B of Direction 65 (paragraphs 11 and 12) sets out considerations that are relevant when deciding whether to refuse a non-citizen’s visa application.
DOES THE VISA APPLICANT PASS THE CHARACTER TEST?
It is clear that the visa applicant has a substantial criminal record, as that term is defined in s 501(7)(c) of the Act, and does not pass the character test under s 501(6) of the Act. He was convicted of sex offences against an 11 year old girl and was sentenced to multiple terms of imprisonment (see paragraph 37 below). He spent some 10 years in prison in the United States from the time of his arrest in March 2001 until his deportation from the United States to India in March 2011. The Applicant concedes that the visa applicant does not pass the character test (paragraph 5 of the Applicant’s SFIC).
SHOULD THE TRIBUNAL EXERCISE THE DISCRETION UNDER S 501(1) OF THE ACT TO REFUSE TO GRANT THE VISA?
PRIMARY CONSIDERATIONS
Pursuant to paragraph 11(1) of Direction 65, the following are “primary considerations” that the Tribunal must take into account in deciding whether to grant or refuse to grant the visa:
(i)protection of the Australian community from criminal or other serious conduct;
(ii)the best interests of minor children in Australia; and
(iii)expectations of the Australian community.
(i) Protection of the Australian Community
Paragraph 11.1(1) of Direction 65 provides that decision-makers considering the protection of the Australian community should 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. There is a low tolerance for visa applicants who have previously engaged in criminal and other serious conduct. Decision-makers are also to give consideration to:
(a) The nature and seriousness of the non-citizen’s conduct to date; and
(b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. [Emphasis added]
(a)Nature and seriousness of the conduct
Paragraph 11.1.1(1) of Direction 65 gives a non-exhaustive list of factors to which decision-makers must have regard in considering the nature and seriousness of a person's criminal conduct. Relevantly, these include:
11.1.1 The nature and seriousness of the conduct
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
(b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c) …
(d) The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
(e) The sentence imposed by the courts for a crime or crimes;
(f) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(g) The cumulative effect of repeated offending;
(h) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(i) Where the offence or conduct was committed in another country, whether the offence or conduct is classified as an offence in Australia.
The visa applicant’s relevant conduct
On 24 March 2003, following the entry of pleas of “no contest” by the visa applicant, the visa applicant was convicted and sentenced on 13 criminal sexual conduct counts in the Circuit Court for the County of Oakland in the State of Michigan in the United States of America as follows (Exhibit R3):
(a)Count 1: Criminal Sexual Conduct - First Degree
Did engage in sexual penetration, to-wit: finger in vagina with a person being under 13 years of age.
Sentence: 108 months to 50 years imprisonment
(b)Count 2: Criminal Sexual Conduct - First Degree
Did engage in sexual penetration, to-wit: cunnilingus with a person being under 13 years of age.
Sentence: 108 months to 50 years imprisonment
(c)Count 3: Criminal Sexual Conduct – First Degree
Did engage in sexual penetration, to-wit: penis in vagina with a person being under 13 years of age
Sentence: 108 months to 50 years imprisonment
(d)Count 4: Criminal Sexual Conduct – First Degree
Did engage in sexual penetration, to-wit: penis in mouth with a person being under 13 years of age.
Sentence: 108 months to 50 years imprisonment
(e)Count 5: Criminal Sexual Conduct – First Degree
Did engage in sexual penetration, to-wit: finger in vagina with a person being under 13 years of age.
Sentence: 108 months to 50 years imprisonment
(f)Count 6: Criminal Sexual Conduct – First Degree
Did engage in sexual penetration, to-wit: penis in vagina with a person being under 13 years of age.
Sentence: 108 months to 50 years imprisonment
(g)Count 7: Criminal Sexual Conduct – First Degree
Did engage in sexual penetration, to-wit: cunnilingus with a person being under 13 years of age.
Sentence: 108 months to 50 years imprisonment
(h)Count 8: Computers – Internet – Communicating with another to commit crime – Maximum imprisonment of 15 years or more or life
Did use the Internet and/or a computer and/or a computer program and/or a computer network and/or a computer system to communicate, for the purpose of committing Criminal Sexual Conduct – First Degree and/or Criminal Sexual Conduct – Second Degree where the victim or intended victim was aged 11 years.
Sentence: 5 years to 20 years imprisonment
(i)Count 9: Criminal Sexual Conduct – Second Degree
Did engage in sexual contact with another person, to-wit: with a person being under 13 years of age.
Sentence: 5 years to 15 years imprisonment
(j)Count 10: Criminal Sexual Conduct – Second Degree
Did engage in sexual contact with another person, to-wit: with a person being under 13 years of age.
Sentence: 5 years to 15 years imprisonment
(k)Count 11: Criminal Sexual Conduct – Second Degree
Did engage in sexual contact with another person, to-wit: with a person being under 13 years of age.
Sentence: 5 years to 15 years imprisonment
(l)Count 12: Criminal Sexual Conduct – Second Degree
Did engage in sexual contact with another person, to-wit: with a person being under 13 years of age.
Sentence: 5 years to 15 years imprisonment
(m)Count 13: Criminal Sexual Conduct – Assault with intent to commit sexual penetration
Did assault another person, to-wit: with intent to commit criminal sexual conduct involving sexual penetration.
Sentence: 5 years to 10 years imprisonment
On any measure the offences for which the visa applicant was convicted in the United States are extremely serious. They fall squarely into the categories of offences identified in paragraphs 11.1.1(1)(a) and (b) of Direction 65.
The seriousness of the crimes committed by the visa applicant is also reflected in the long terms of imprisonment imposed by the court in the United States. The nominal cumulative total of the minimum sentences is 93 years. In total the visa applicant spent 10 years in prison in the United States before being deported to India.
The Tribunal notes the sentencing court’s view of the seriousness of the visa applicant’s crimes (Exhibit R3). Notwithstanding a prior agreement between the prosecutor and the visa applicant that the maximum sentence for each charge would be 20 years, the court denied the motion to reduce the sentence and imposed and maintained the sentence at the maximum possible under the statute for each first-degree offence, namely 50 years.
The other factor in paragraph 11.1.1 of Direction 65 relevant to this case is that set out in subparagraph 11.1.1(i) of Direction 65. Clearly the conduct for which the visa applicant was convicted in the United States would also be considered serious offences under Australian law. The details of the conduct comprising the offences are set out in the charges in paragraph 37 above to which the visa applicant pleaded no contest.
The Applicant’s case substantially relies on the proposition that the visa applicant did not commit the crimes for which he was convicted. The argument is set out in paragraphs 3 to 6 of the Applicant’s SFIC as follows:
DISCUSSION OF FACTS
3. The applicant pleaded “no contest” to a number of criminal charges in the US State of Michigan. In US state law a defendant has an option of pleading Nolo Contendre as an alternative to a plea of guilty. A plea of Nolo Contendre means “no contest,” rather than “I confess”; it simply means that the defendant, for whatever reason, has chosen not to contest the charge. It does not function as a plea of guilty.
4. The defendant denies that he acted in any way that would have amounted to criminal conduct under the laws of the State of Michigan. In short, he denies the facts upon which he was convicted and says that he only pleaded “no contest” because he felt that he had little other choice. He accepts that this throws a “heavy onus” on him.
CONTENTIONS
5. The applicant was sentence to a term of imprisonment of 12 months or more and therefore does not pass the character test under s 501 of the Act, by virtue of his “substantial criminal record”. Failure of the character test arises as a matter of law, and it is plainly the case here that the applicant fails the character test by reason of his 2003 conviction and imprisonment.
6. However, if the Tribunal accepts, as a fact, that the applicant did not act in a way that would have amounted to criminal conduct under the laws of the State of Michigan (or Australia, for that matter), there is no underlying conduct which would justify the refusal of his visa under the character test and the Tribunal ought to exercise its discretion to set aside the primary decision.
(Footnotes have been omitted.)
The Tribunal does not accept the Applicant’s premise that the visa applicant did not commit the crimes of which he was convicted. The visa applicant pleaded “no contest” to the extremely serious crimes with which he was charged. His explanation for not contesting the charges are set out in paragraph 22 of his statement dated 27 October 2017 (Exhibit A2) as follows:
…I agreed to plead “no contest” for two reasons. The first reason was that my lawyer said it would be difficult for me to win the case because only circumstantial evidence was needed for me to be convicted. I accepted a plea bargain because I was scared of spending many years in jail and never seeing my family again because the maximum sentences were so high. The second reason was that I did not want there to be a trial because I did not want to make the girl suffer through a hearing.
Those reasons do not withstand analysis. Whether he was told by his lawyer that only circumstantial evidence was needed or whether it is the case that in the State of Michigan only circumstantial evidence is needed to prove the crimes with which the visa applicant was charged, the fact is that there was direct evidence, that being the evidence of the victim and the visa applicant’s admissions of use of the internet. Secondly, the claim that he did not want to put the girl through the trauma of a hearing is belied by the fact that he only entered the no contest plea after the committal hearing at which the victim had to give evidence. The facts set out in the 13 indictments as detailed in paragraph 37 and Exhibit R3 were the subject of the preliminary hearing which did involve the examination of the 11 year old girl. In cross-examination at the hearing of this application by the Tribunal the visa applicant confirmed that the girl gave the “whole story” at the preliminary examination (Hearing Transcript, p 66) and that the particulars of the 13 charges as set out in paragraph 37 above were drawn from her testimony (Hearing Transcript, p 66 at lines 28-31).
The Tribunal finds that the visa applicant was an unsatisfactory witness. He was evasive in cross-examination, particularly as to his prior statements relating to his convictions in the United States. Counsel for the Minister took the visa applicant to his “Case Statement” (T10) dated 13 July 2015, which is the earliest statement by the visa applicant before the Tribunal, providing his version of the events leading up to his convictions. This document was prepared by the visa applicant in support of the visa application (T60 at page 256 and the Hearing transcript of the cross-examination of the visa applicant at p 28). That Case Statement contained the following passage:
…Besides I was thinking that I’m not doing anything secretly because her mother voluntarily sent her with me even though it was because of the girl that lied to her mother and also asked me to tell her mother that I was her friend’s brother (sic). So basically in my mind I only had intentions about helping her with her request and nothing else. So I took her out and dropped her back promptly after shopping, movies and dinner. 1 week later I was told by the police that I am accused of taking a minor girl out with the intention of sexual abuse which is totally baseless. I fought the case from the county jail for over 2 years as much as I could until I exhausted all my resources financially, mentally I was depressed because I had no family or friends support (sic), emotionally I was drained and hurting, physically I was weak. I was so (sic) finally I had to give in to the system so they can have their conviction.
There are several significant omissions or misstatements in this passage. When cross-examined about the claim that he “…dropped her back promptly after shopping, movies and dinner” the following exchange took place (Hearing Transcript pp 30-31):
You’ve said in this statement, [visa applicant]:
So I took her out and dropped her back promptly after shopping, movies and dinner.
Is that statement correct?---That is partially correct. In a way, in a way because those - what I was alluding to here in that particular sentence was about the activities. There was a shopping activity, there was a movie-going activity, there was a dining activity. That is an activity, that is what I was saying, after that when we went back home, there was no activities, so I didn’t, you know, have to bring that point up. But later on, you know, I added in detail all those things as well. That’s the reason why I put that form because of the activities that I focusing in that particular sense.
But you didn’t drop her back promptly after shopping, movies and dinner, did you? You took her back to your house and she stayed the night there?---Yes.
Why did you not mention that in this statement?--- As I said earlier, as I was mentioning earlier, I mentioned this part, in this statement, because I was focusing on the activities that have been done. When we went home, there was no activities so there was nothing there to say that, okay, we went home, we did (indistinct). There was nothing like that, so that’s the reason why. My focus here was what we have done when we met, that is why I said that.
Counsel for the Minister also took the visa applicant to the part of his statement at T10 wherein he advised that one week later he was advised by police that he faced certain accusations as follows (Hearing Transcript, p 31):
MS LADHAMS: Okay:
One week later, I was told by police that I’m accused of taking a minor girl with the intention of sexual abuse which is totally baseless.
MS LADHAMS: My question to you is, in this statement you have mentioned only one occasion where you met the girl. You later, in different statements, have referred to a second occasion where you met the girl and she also stayed overnight at your house. Why did you not mention that second occasion in this statement?---I don’t know why. The main reasons of every statement is because when they ask me to make the statements I had certain things that I wanted to disclose because some of the things, most of the statements are repetitive and you know, they become so. I believed that if I have been say something that I needed to say in the previous statement, I was saying it in this statement. And like I said, since it’s happened a while ago, I - the chronology of the entire - even you know sometimes it would have been, you know, different. So that’s why in different statements, I don’t know, depending upon what they are trying to get, ask me and what they want me to say, I was putting it in different statements a different way. But in October 27 statement, which is my most recent statement, is I believe has a comprehensive account of the entire thing because that is what I was asked to, I was asked to tell and I forget about all the statements, you let me know exactly how the things went on. So that’s when I took time and I wrote these things in a comprehensive manner in the most recent statement. And also, I would like to bring it up because every time I was asked to do these statements and this application I was on a time limit and so I would have to, you know, do these things on a timeline that I was given and I’m also juggling with other responsibilities, my personal responsibilities here with work and with an old-age mother, taking care of her. So all of these things were definitely a factor on the way I am responding to, you know, each application.
So the first time you consider that you’ve given a comprehensive statement is in your statement to this tribunal, the one on 27 October 2017. Is that what you’re saying?---Every statement that I have given is a true because I have written every statement, but every statement, you know, has a different purpose, you know, why they ask me to write that statement. That’s what I’m alluding to. Every statement is true.
These passages in the visa applicant’s statement and the exchanges in cross-examination are, in the Tribunal’s view, indicative of the preparedness of the visa applicant to lie or to omit or downplay facts which do not suit his story. His statement that he “dropped her back promptly after shopping, movies and dinner” is simply a lie. Obviously the fact that the girl spent the night alone with him at his house, on that and a subsequent occasion is highly damaging to the visa applicant. The visa applicant would have been well aware of that in making the statement in support of the visa application. The visa applicant’s attempt to explain these glaring omissions of damaging facts on the basis that he was concentrating only on the activities (i.e. shopping, movies and dinner) when describing what he had done with the girl is untenable.
Also, the visa applicant’s lie to the girl’s mother that he was the girl’s friend’s brother is characterised in his statement as being the girl’s idea and him simply supporting her in that story. That, in the Tribunal’s view, is indicative of two things. Firstly, the lie to the girl’s mother is indicative of the visa applicant’s true intentions towards the girl and his appreciation that his intentions were improper and had to be concealed. Secondly, that lie and his evasive and materially incomplete statement made to the Department on the original proposed marriage visa is indicative of the visa applicant’s preparedness to lie to authorities.
The Applicant places significant weight on the fact that the visa applicant did not plead guilty to the 13 counts of criminal sexual conduct but rather pleaded “no contest”. See the Applicant’s SFIC at paragraphs 3 and 4 set out in paragraph 42 above.
The Minster responds to that submission in his SFIC as follows:
35. [The visa applicant] has noted that he entered a plea of “no contest” rather than plea of guilty and suggested that he accepted a plea bargain due to fear of receiving a higher sentence and because he did not want to make the victim suffer through a hearing.. (sic) The effect of a “no contest” plea has been described by the USA Supreme Court as follows in Lott v United States, 367 U.S. 421, 426, 81 S.Ct. 1563, 6 L.Ed.2d 940 (1961):
[a]lthough it is said that a plea of nolo contendere means literally I do not contest [the charge], and is a mere statement of unwillingness to contest and no more, it does admit every essential element of the offense (that is) well pleaded in the charge. Hence, it is tantamount to an admission of guilt for the purposes of the case, and nothing is left but to render judgment, for the obvious reason that in the face of the plea no issue of fact exists, and none can be made while the plea remains of record.
36. As a result of the “no contest” plea, [the visa applicant] was convicted of the offences outlined in [3] above. As Branson J said in Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 (Ali) at [38], “proof of a conviction is, as a matter of logic, highly probative of the truth of the factual matters essential to the conviction”. Her Honour then proceeded to outline the following principles in relation to how decision-makers should treat evidence of criminal convictions, based on her review of the authorities:
[41] First, it seems to me to be clear beyond argument that the administrative decision maker is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence were necessarily based.
[42] Secondly, the overwhelming weight of authority is that where the conviction and sentence are the foundation of the exercise of the power vested in the applicant by s200 of the Act, the Tribunal, when reviewing the decision of the Minister, may not impugn or go behind either the conviction or the sentence.
[43] Thirdly, although there is no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based, policy considerations suggest that the legislature intended that the Act, to the extent that it is concerned with the control in the public interest of the presence of non-citizens in Australia who have been convicted of criminal offences, should be administered in a way which:
(a) recognises that the criminal justice system is pre-eminently suited to the determination of the guilt of persons charged with criminal offences; and
(b) limits inconsistency between decisions of the criminal courts and those of tribunals.
As a consequence, in my view, the Act should be construed as requiring a decision maker under s200 of the Act to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted. This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing.
[44] Fourthly, although a decision maker under s200 of the Act may, in a case in which the heavy onus on a person who seeks to challenge the facts essential to a criminal conviction and sentence (other than that on which the power to deport is based) is satisfied, accept evidence which contradicts such facts, he or she is not entitled to reach or express a view that the person was wrongly convicted.
[45] Fifthly, the above limitations on the matters to which a decision maker under s200 of the Act is entitled to have regard do not mean that the decision maker is not (subject to such limitations) to make his or her own assessment of the entirety of the conduct of the person whose deportation is under consideration, including the nature and seriousness of conduct which led to convictions and the significance of such conduct so far as the risk of recidivism is concerned.
[Original Emphasis]
The Applicant’s counsel also referred in some detail to Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 (Ali) (Hearing Transcript, pp 128- 135) and took the Tribunal through the five points from the decision cited in the Minister’s SFIC as quoted above. Counsel for the Applicant submitted:
…We say that the net result of Ali is as follows. Firstly, the tribunal is obliged to take into account the fact of the applicant’s conviction and sentence. So it’s not entitled to set those aside (transcript unintelligible) or to suggest that the applicant was wrongly convicted. That’s our first point in relation to Ali. With reference to section 55, we say that goes to the nature and seriousness of the applicant’s conduct, which is the first item under the heading, “Protection of the Australian community.” We say, and we accept, that by their very nature the applicant’s convictions in this case must be regarded as very serious. But it’s the second heading which we say, when considering the risks of recidivism, as it’s put in there, or the risks of offending, let’s say, by the applicant, we suggest that it’s there that the tribunal is entitled - and indeed required, according to Shepherd J in Gungor - it’s obliged to examine for itself the entirety of the applicant’s conduct based on the evidence before it. We say not only does that go to the risk to the Australian community, but it goes to what we contend to be the overarching purpose of the character provisions and Direction 65 that the protection of members of the Australian community is paramount. That’s what we say Ali stands for in relation to this case.
The passage from the decision in Minister for Immigration andEthnic Affairs v Gungor (1982) 42 ALR 209 at 233 (Gungor) cited by the Applicant’s counsel at the hearing was:
…[T]he Tribunal remains entitled, indeed bound, to examine for itself what was involved in the entirety of the conduct of the applicant before it. This examination will include the receiving of evidence to put the tribunal in a position to weigh and to make its own assessment of the seriousness of the conduct which has led to the conviction.
That passage, however, in the Tribunal’s view, must be read in context of that which preceded it. In Gungor the Court was looking at whether the tribunal had erred in taking into account evidence to the effect that the applicant should not have been convicted of the crime. The case that the applicant was seeking to make was that although he was convicted of actual supply of the drug, that conviction relied on acceptance of police evidence which the applicant argued should not have been accepted. On that argument the Court in Gungor held at 233:
In the present case there can be no doubt, having regard to the earlier analysis of the evidence, that the respondent was convicted of actual supply of the drug by reason of the jury's acceptance of what the police officers claimed he had admitted to them. Otherwise, as the learned trial judge said, there could have been no conviction. The jury would have been bound to acquit. Nevertheless the Tribunal has concluded that, whilst the applicant was rightly convicted, that was the case only because the evidence led before it established that he was not himself a supplier but rather a person who had aided and abetted another person who had supplied the drug. He was a principal in the second degree — not in the first degree, as the jury must have found.
The taking of such a course by the Tribunal has, in my respectful opinion, the effect both of going behind the conviction and setting it at nought. In my opinion it was not open to the respondent to lead evidence for the purpose of showing that he was a principal in the second degree rather than in the first. Certainly it was not open to the Tribunal to treat him as convicted on the basis of that conduct rather than upon the basis of conduct which made him a principal in the first degree. To proceed as it did involved it in an error of law.
It is in that context that the Court in Gungor then goes on to make the observation cited by the Applicant’s counsel set out in paragraph 53 above.
The Tribunal also observes that even in the passages from the decision in Ali cited by the Applicant’s counsel and also set out in the Minister’s SFIC and reproduced in paragraph 51 above, the Court is excluding from the review the conviction which gave rise to the power of the Minister to cancel or refuse the visa. In the second paragraph in paragraph 43 of Ali Her Honour specifically excludes “the conviction and sentence upon which the power to deport is based”. Similarly, in paragraph 44 the ability to challenge the “…facts essential to a criminal conviction and sentence…” excludes the conviction and sentence “…on which the power to deport is based…”.
In the end, however, the question of whether this Tribunal can take into account the claim by the visa applicant that he did not commit any of the crimes for which he was convicted in the United States, or for that matter any crime, is academic given that the Tribunal does not accept the visa applicant’s evidence on that issue. For the reasons set out previously in this decision, the visa applicant’s claim that he only pleaded no contest to the very serious crimes of which he was convicted to spare the girl the need to give evidence and that he was fearful of spending longer in jail if he fought the charges do not stand up. The visa applicant certainly has not discharged the “heavy onus” required to dispute, or in this case totally displace, the material facts upon which the convictions were based as required by the principle set out in paragraph 43 of Ali (see paragraph 51 above).
In that regard the Tribunal also accepts the Minister’s submission that the effect of a plea of nolo contendere and of the judgment of a court following such a plea is as described by the USA Supreme Court in Lott v United States 367 U.S. 421, 426 (1961) (set out in paragraph 51 above). In relation to the entry of a judgment following a plea of nolo contendere, the court in Lott described the effect as follows: “Necessarily, then, it is the judgment of the court – not the plea – that constitutes the ‘determination of guilt’”. Such judgment was duly entered following the visa applicant’s plea. Further, and in any event, for the reasons set out earlier in this decision, the Tribunal is satisfied that the visa applicant did engage in the conduct on which the 13 convictions were based as outlined in the charges set out in paragraph 37 above.
As noted at the outset of this primary consideration, and taking into account the matters to which the Tribunal must have regard under paragraph 1.1.1(1) of Direction 65, the offences for which the visa applicant was convicted are extremely serious and weigh heavily against the grant of the visa.
(b) The risk to the Australian community should further offences be committed
Paragraph 11.1.2 of Direction 65 sets out the principles and factors to which the Tribunal should have regard in assessing whether a non-citizen represents an unacceptable risk of harm to members of the Australian community. It provides:
11.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.
(2) In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(3) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence from independent authoritative sources on the likelihood of the non-citizen re-offending; and
(ii)evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that the decision should not be delayed in order for rehabilitative courses to be undertaken); and
(iii)the duration of the intended stay in Australia.
(4) Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.
The Minister in his SFIC at paragraph 39 draws attention to the consideration in paragraph 11.1.2(1) of Direction 65 that “some conduct and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable” and submits that this is such a case.
The Minister also points to the comments of the sentencing judge in the court in the United States when he observed that the victim’s life “…will now be severely changed…” and that “…her very innocence was violated forever” (T6 at page 43).
Sexual crimes against children, particularly of the type detailed in the charges set out in paragraph 37 above against an 11 year old girl, are, in the Tribunal’s view, the sort of conduct to which paragraph 11.1.2(1) of Direction 65 is referring when it talks about conduct that “is so serious that any likelihood that it may be repeated” is unacceptable.
The other area of concern that the Tribunal has in this case is the consideration identified in paragraph 11.1.2(3)(b)(ii) of Direction 65, namely looking at the rehabilitation efforts that the visa applicant has made in considering the likelihood of the visa applicant repeating the conduct. The visa applicant has continually denied that he engaged in any of the conduct for which he was convicted. All of his statements of remorse and of him having learnt from what happened to him must be viewed in that light. According to the visa applicant all that he did was to go online and chat to someone, take the girl shopping and then have her sleep over at his house. He talks in terms of his “bad choices” (paragraph 31 of his statement dated 27 October 2017, Exhibit A2) and of his having “taken responsibility for my actions, expressed remorse and could clearly see where I made bad choices in life…” (at paragraph 33 of the visa applicant’s statement dated 27 October 2017).
Similar statements of remorse and rehabilitation are made in:
·the visa applicant’s case statement of 13 July 2015 (T10) and his statement of rehabilitation (T11) submitted with the visa application;
·the visa applicant’s personal statement made on 5 March 2017 (T13);
·the visa applicant’s Personal Circumstances Form in response to the notice of intention to consider visa refusal dated 3 March 2017 (T16 at page 76) wherein he states:
I would like to mention that nowhere in the world do they have such unfair sentencing guidelines as in USA. They considered that I was an immigrant in USA and hence they increased the sentence unreasonably beyond the normal sentencing guidelines just for the record sake. I was not supposed to get 9 years for the crime I was convicted, but they did it because of my Immigrant status assuming that I might be deported without completing my sentence. During my incarceration, I accepted my role to put myself in the situation and regret my bad choices in the past to visit internet and chat with random people instead of taking care of family and career. I realized my mistakes and deeply regret my choices in the past and feel sincerely remorseful for my actions… (emphasis added); and
·further, in his Personal Circumstances Form (T16 at page 80) the visa applicant says:
…I am (the person) who ran into a very unfortunate situation in life under questionable circumstances. Nevertheless, I do see my part as in chatting online with random people for the sake of fantasy which is wrong on my part. For that I am really sorry and I express my remorse and repentance.
Given the Tribunal’s finding that the visa applicant did commit the crimes of which he was convicted, he clearly has not taken responsibility for his actions at all. In those circumstances any statements by the visa applicant of his remorse, rehabilitation and that he will not repeat the conduct are meaningless.
Not only are the visa applicant’s statement of taking responsibility for his actions, remorse and rehabilitation meaningless, but, because of his failure to admit to the crimes of which he was convicted, the many supportive statements filed by the Applicant and others, and the evidence given at the hearing by some of those who gave such statements, have little or no weight. The main thrust of many of the statements was that because of the sort of person that he was, or based on what he had told the witness, the visa applicant could not have committed the crimes of which he was convicted. The common theme of those statements, where they do refer to the visa applicant’s conduct in the USA leading to his convictions, was that he merely went online to chat to someone who turned out to be under-age and that he subsequently took her shopping and that he now realises the error of having done that. In that regard:
·the statement of the pastor of the visa applicant’s church in India (Exhibit A5) said:
[The visa applicant] has admitted to me that he made mistakes including talking with the girl online when he did not really know how old she was, then taking her shopping and picking her up without her mother’s permission. I believe that he understands why these things were wrong and he would never do such things again.
This statement appears to be made, not only on the basis that the visa applicant clearly told the witness that he had not committed the crimes of which he was convicted, but also indicates that the visa applicant had failed to tell the witness that he had lied to the girl’s mother about being the girl’s friend’s brother;
·in her statement (T29), the visa applicant’s mother said:
In March 2001 we have received a call from the law authorities in USA about his arrest because of his involvement in a sexual crime. It was a major (sic) shocking news for us even to hear that news. We immediately knew that there has been (sic) a serious error in the investigation as we know the kind of person [the visa applicant] was and so we let the USA authorities know that [the visa applicant] is innocent of such a thing. However, they didn’t listen to our pleas but rather went ahead with their conviction.
·in his statement (T30) the visa applicant’s younger brother stated:
One day we received a call from the USA law authorities about his arrest because of his involvement in a sexual crime. For all of the family members who knew him as the child of God and with very good family and biblical values it was a (sic) heart breaking news. We all knew for sure, that [the visa applicant] was implicated falsely and upon telephonically confirming the same with my brother…and his friends in USA, we desperately pleaded with US authorities about his innocence. However, our pleas were in vain as they were not considered due to lack of proper counsel, physical presence and financial support.
·in his statement (T31), the visa applicant’s older brother, who also gave evidence by telephone at the hearing, said:
Apparently there were some family fueds (sic) between [the visa applicant] and his ex-wife and to avoid stress unfortunately he took a wrong step to start chatting with strangers on the internet and by having friendship (sic) with a girl who also lied about her age to my brother, girl’s mother (sic) also encouraged her to meet up with [the visa applicant]…By all means I can boldly assure and swear on GOD (sic) whom we trust that it is highly unlikely that my brother …would have behaved in such a way as he was accused. Definitely I believe that there was a conspiracy behind it.
·in her statement (T32) the visa applicant’s sister said:
…I know for sure that he will never do such an unlawful thing and he is incapable of doing such thing. Nobody in this world can convince me that [the visa applicant] was such a person to involve in sexual assault…I strongly believe that the unfortunate incident in usa (sic) was a deliberate attempt to incriminate my brother [the visa applicant] for personal benefit. Had we been by his side during that time he wouldn’t have been convicted of this crime since we will get to the bottom of the conspiracy and expose the fallacy.
·in her statement (T33) the visa applicant’s youngest sister refers to:
…the unfortunate thing that has happened to my brother [the visa applicant] during 2001 in which he was falsely implicated and convicted.
·in the statement (T36) provided by a long-time family friend of the visa applicant, who also gave evidence at the hearing by telephone, the assertion is made that:
There is no way anyone in this entire town of […], India that know (sic) [the visa applicant] will even believe for a moment that he was involved in such criminal behaviour…So I can affirm that this conviction is not real but a setup wherein a vulnerable [the visa applicant] was trapped by unfavourable circumstances in his family life at that time.
·the statement from a family friend (T38) as follows: “After his stay in the USA where he was I believe wrongly convicted…”; and
·the statement (T40) of a person who had, at the time of giving the statement in 2017, known the visa applicant for six years contains the comment that: “I…can assure you that he has been accused wrongly.”
The end result is that it is clear to the Tribunal that the visa applicant does not accept any responsibility for his criminal conduct and that he has undertaken no effective rehabilitation. Given the extremely serious and damaging nature of the crimes committed by the visa applicant and the harm that would be caused to the Australian community if it were to be repeated, in the Tribunal’s view the risk of the visa applicant repeating the conduct for which he was convicted in the United States is unacceptable. This weighs very heavily against the issue of a visa to the visa applicant.
(ii) Best interests of minor children in Australia
Paragraph 11.2(4) of Direction 65 sets out the factors the Tribunal must consider if relevant in considering the best interests of a child. They are:
(a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is not existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) The extent to which the non-citizen is likely to play a positive parental role in the future, (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements;
(c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that contact has, or will have, a negative impact on the child;
(d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e) Whether there are any other persons who already fulfil a parental role in relation to the child;
(f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The visa applicant has a biological child with the Applicant aged 3 years and a step-child (daughter of the Applicant) aged 15 years. Both children live with the Applicant in Australia.
The Applicant and both of the Applicant’s daughters have regular communication with the visa applicant and have visited him in India. In her statutory declaration of 27 October 2017 (Exhibit A3), the Applicant says:
47. [The two girls] and I use internet video calls (WhatsApp and Google Hangout) to regularly communicate with [the visa applicant] almost every day. We use this to try to do things together as a family as much as we can. We pray together, eat together and [older child] tells [visa applicant] about her day at school over the internet.
…
49. We visit [the visa applicant] in India as often as we can, which can only be for at most a month during the summer school holidays….
The father of the 15 year old child lives in Perth. There is a Family Court Order dated 5 June 2013 (T20) allowing the father of the child access each alternate Sunday for 3 hours and each intervening Saturday for 7 hours and telephone access for two hours, two days a week. That is the current order of the Family Court (Hearing Transcript, the cross-examination of the Applicant at p 10). The Applicant did, however, advise in her cross-examination that the father of the child has not utilised the access allowed by the Family Court Order and has not seen his daughter since 2013 (Hearing Transcript p 11) and the last time he spoke to his daughter on the telephone was in 2014 (Hearing Transcript p 11). Her evidence also was that while her former husband, the 15 year old’s father, had been uncooperative, she had managed to be able to take her daughter to India on the three occasions she has gone to visit the visa applicant (Hearing Transcript pp 11 and 12).
The Applicant was asked in cross-examination whether she had thought about seeking a change to the Family Court Orders “so that you could spend more time in India if you wanted to”. The Applicant answered that she had not because the children only got four weeks of holidays and they could not spend too much time in India because she worked. Given that the older child’s father has had no physical contact for some five years and no contact at all for some four years, and given that the child is 15 years old, it is highly likely that if the Applicant were to apply to vary the current Family Court Orders to allow the child to leave Australia such an application would be successful. The Tribunal is therefore of the view that the current Family Court Orders would not be an impediment to the older child leaving Australia.
The Minister accepts that the best interests of the children would be served by the grant of the visa. The Minister, however, contends that that consideration is outweighed by the other factors which weigh against the grant of the visa (Minister’s SFIC paragraph 53). The Tribunal agrees with the Minister’s position.
(iii) Expectations of the Australian community
The third consideration listed in Direction 65 is the expectations of the Australian community. In this regard, paragraph 11.3(1) of Direction No. 65 states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.
In analysing this third and primary consideration, the Tribunal again refers to the stated principles in paragraph 6.3 of Direction 65 and, in particular, the principles that:
(a)the Australian community expects the Australian Government to refuse to grant visas to non-citizens who commit serious crimes (paragraph 6.3(2) of Direction 65);
(b)non-citizens who commit serious crimes, including of a violent or sexual nature, should generally expect to be denied the privilege of coming to Australia (paragraph 6.3(3) of Direction 65);
(c)in some circumstances if the offence were to be repeated the consequences would be so serious that any risk of similar conduct is unacceptable (paragraph 6.3(4) of Direction 65); and
(d)the length of time a non-citizen has been making a positive contribution to the community and the consequences of a visa refusal for minor children and other immediate family members (paragraph 6.3(7) of Direction 65).
The Tribunal notes the statement of Deputy President McCabe in Labi and Minister for Immigration and Border Protection [2016] AATA 316 at [60]:
The Direction points out the Australian Community expects non-citizens will obey Australian laws while they remain in this country. But the Direction implicitly acknowledges the community is not completely intolerant of risk: rather, it will have regard to the nature of the character concerns or offences and make a reasonable judgment. In short, one can rely on the Australian community, when fully informed of the facts, to demonstrate some perspective and settle on an outcome that is proportionate.
The Tribunal also notes KDSP and Minister for Immigration and Border Protection [2017] AATA 2169, wherein Senior Member M J McGrowdie stated at [36]:
The Australian community could not be said to be intolerant of any risk. While the Australian community abhors domestic violence, looking at the whole of the circumstances of the applicant's behaviour, I would consider that the Australian community would not assume that the applicant will reoffend, that regard would be had to the fact that the applicant not only has served a jail sentence for his offending, but he has also been held in detention since his release from prison. I conclude that the Australian community would be accepting of providing the applicant with the opportunity to remain in Australia on a limited stay visa, with the applicant knowing that any infringement would likely result in a cancellation of that visa.
The Minister (paragraph 55 of the Minister’s SFIC) submits that taking into account the Principles set out in paragraphs 6.3 and 11.1.2(1) of Direction 65 that the expectation of the Australian community would be that a person convicted of 13 counts of serious criminal sexual conduct of the sort described in the charges (see paragraph 37 above) against an 11 year old child would not be granted a visa.
The Tribunal agrees and further notes the wording of paragraph 11.3(1) of Direction 65 quoted above which provides that: “Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa”. The Tribunal is of the view that the crimes of which the visa applicant has been convicted are such that the Australian community would expect that a person convicted of such crimes should not be granted a visa.
This consideration weighs against the grant of the visa.
(iv) Other considerations
Paragraph 12(1) of Direction 65 provides:
12.Other considerations – visa applicants
(1) In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations 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.
While this direction refers to cancelation of visas rather than refusal to grant visas, it is generally taken to also apply to the exercise of the discretion to grant or not to grant a visa. Paragraph 6.2(3) of Direction 65 provides that the relevant factors to be considered in making a decision under s 501 of the Act are identified in Parts A and B, and as a result the considerations in paragraph 12(1) are relevant to the discretion to refuse to grant a visa.
No issues or concerns were identified by the Applicant which would give rise to non-refoulement obligations. Based on the evidence before the Tribunal, the only other considerations that may be relevant in the present case is the impact on family members.
There are three people relevant to this consideration being the Applicant, the 3 year old biological child of the visa applicant and the 15 year old daughter of the Applicant. The interests of the children were considered above under the heading: “Best interests of minor children in Australia”.
The Applicant was born and grew up in India. Her first marriage in 2001 was to an Indian in India. Her first daughter was born in India. She came to Australia with her first husband and her daughter in 2007. Evidence was led that she suffers anxiety and depression because of her separation from the visa applicant and the stress associated with the visa application process. She says that she feels that she is judged by other members of the Indian community in Perth because she is raising her children as a single mother (paragraph 65 of Exhibit A3). She says that
…being seen in public with her husband is an important way of getting respect in the community. The social stigma of not having a complete family is very strong and many Indian people I know refuse to even touch [the 3 year old child] because of our family circumstances.
She goes on at paragraph 66 of Exhibit A3 to say:
The emotional support I get from [the visa applicant] as a husband when I am with him in India is indescribable. Having him with me gives me so much peace of mind and someone to share the responsibility of looking after [the two girls] so that I can have a break.
The Applicant’s statement and evidence at the hearing also covered the issues that she has as a single mother balancing raising two children and working to support them. She also in her statement (Exhibit A3) says that;
73. I suffer depression and stress from the emotional and financial pressure of having to live separately from [the visa applicant] and looking after [the girls] on my own. I need [the visa applicant] to join us to help me build a secure, stable life and healthy family environment for my daughters.
74. In 2017 I was diagnosed with adjustment disorder, which I have been told by a psychologist will probably go away once I don’t have to deal with the stress of [the visa applicant] not being in Australia.
…
77. Spending time in India can be difficult for me because the weather triggers my asthma much more often than the weather in Australia does. Even though it makes me uncomfortable I will keep visiting [the visa applicant] in India as much as I can until he is allowed to come to Australia.
78. My employment prospects and professional advancement would suffer as well if I had to go back to India so [the visa applicant] and I could be together. I have put a lot of work into establishing my teaching career in Australia as completed my teaching practicum when I was 39 weeks pregnant and I feel I would be throwing that all away if I had to leave Australia. I will be keeping my children in a very risky and unsafe situations over which we have no control especially for girls in a country like India.
The circumstances in which the Applicant met the visa applicant are set out in her statement Exhibit A3 as follows:
Establishing contact with [the visa applicant]
24. [The visa applicant] and I first made contact through a Christian matrimony website Christian Matrimonial.com in August 2011. My family in India encouraged me to get married because they could see how much I was struggling to cope on my own with work, study and looking after [the applicant’s older daughter].
25. The first time [the visa applicant] and I spoke on the phone was during the October 2011 school holidays. We talked for about six hours straight because we wanted to know everything about each other because of our experiences in our previous marriages.
26. We started speaking to each other on Google Hangout. Our relationship developed by calling each other on the phone every day, regular email chats and Google chats. We also used to use Tango before we changed to WhatsApp.
27. [The visa applicant] and I started talking more often on the phone, sometimes for hours at a time, as well as having email and internet contact throughout the day whenever we had a chance. I spent lot of time on a daily basis like this with [the visa applicant] getting acquainted with him and knowing his likes, dislikes, food habits, hobbies, dreams, career and personal goals, ambitions and future family plans. We also spent a lot of time talking spiritual matters, reading the Bible, singing hymns, and praying for one another. In this way we started supporting each other spiritually, emotionally and psychologically.
28. Whenever I was a little sad or down [the visa applicant] instantly recognised it, speaks lovingly and caringly and prays for me, encourages me and lifts my spirits. We understood each other so well in such a short period of time that the long distance between us was not a constraint on our relationship developing and blossoming. We understood each other's strengths and weaknesses and took time to listen to each other, counsel and encourage each other. I finally found a man that I love after years of abuse in my previous marriage who was a devout Christian like me. He made me feel valued, cared for and respected.
29. [The visa applicant] and I started making plans for our future. We decided that I would go to university to improve my career prospects while he continues with his office managerial career. We also planned on having children together later in life after things settle down a little. Our families were both very supportive of our relationship and gave us a lot of advice on family issues.
30. One of the things that [the visa applicant] told me about himself was that he had been convicted in the USA for sexual offences involving a minor. Because I am a teacher and had [my daughter] to look after I was very cautious about this. I asked [the visa applicant] about what he had done to the girl and he told me that he had not touched her. I remember specifically telling him that I thought it was inappropriate that the girl had gotten in the car with him and he agreed with what I said. I realised that he was very honest and truthful by telling me about this and he did not hesitate to answer to any of my questions. We even prayed about it together after he had answered all my questions. It was a shock but I stayed in contact with him because I felt that it did not represent the kind of person that he is now.
…
Meeting [the visa applicant] in person and our married life
35. I visited [the visa applicant] in India from 11 January to 21 January 2012. We got engaged on 16 January 2012.
36. I sponsored [the visa applicant] for a subclass 300 Prospective Marriage visa, which was refused on 28 October 2013 on character grounds. I was extremely depressed and shared my feelings with my friend […] who supported me emotionally to come out of my hopelessness.
37. I returned to India with [my daughter] from 3 to 29 January 2014. We went wedding shopping together and [the visa applicant] asked [my daughter] about her opinion on everything. She really loved that he paid her so much attention and we had all had fun together. [The visa applicant] and I were married on 15 January 2014. [My daughter] and I finally felt like we had peace in our lives, safe and comfort when we are together as a family.
…
41. I had fallen pregnant while I was in India. It was depressing and devastating for me that I went through the journey of being pregnant without [the visa applicant] by my side. I had to rely on [my daughter] for help, which was not fair to her because she was only 12 years old.
What is significant from the above chronology is that at the time that the Applicant married the visa applicant in 2014 and became pregnant, the visa applicant’s application for a subclass 300 Prospective Marriage visa, sponsored by the Applicant, had been refused in October 2013 (Exhibit A3, at paragraph 36 of Applicant’s statement) because of the visa applicant’s convictions in the United States. Notwithstanding that, the Applicant chose to proceed with the marriage to the visa applicant and become pregnant with the child who is now 3 years old. She made that choice in the full knowledge that there was a significant likelihood that the application for the Partner (Provisional)(Class UF) visa the subject of this application would be refused on the same grounds.
Further, the Applicant’s evidence is that she would rather not go back to live in India for the following reasons:
(a)she may suffer more frequent asthma attacks in India;
(b)she would, in her view, suffer a career setback; and
(c)she considers that Australia would be a safer place to raise her daughters.
In the end it would be the Applicant’s choice not to go back to India to live with the visa applicant if the visa was not granted.
The Minister accepts (paragraph 59 of the Minister’s SFIC) that the impact on the family members is a factor that weighs in favour of the grant of the visa but says that that is outweighed by the need to protect the Australian community and the expectations of the Australian community that someone convicted of the crimes that the visa applicant has been convicted of should not be granted a visa. The Tribunal accepts the Minister’s submission.
CONCLUSION
The visa applicant does not pass the character test under s 501 of the Act.
In relation to the primary considerations that the Tribunal must take into account under Direction 65:
(a)the protection of the Australian community weighs heavily in favour of the visa applicant not being granted a visa. The nature and seriousness of the visa applicant’s conduct and the likelihood of his re-offending pose an unacceptable risk to the Australian community;
(b)the interests of the two children weigh in favour of a grant of a visa, however, only marginally and are far outweighed by the other primary considerations; and
(c)the expectation of the Australian community would be that in the present case the visa applicant would not be granted a visa.
DECISION
For the reasons set out above, the decision under review is affirmed.
I certify that the preceding 95 (ninety-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President S Boyle
......[sgd]..................................................................
Associate
Dated: 27 April 2018
Dates of hearing: 15 and 16 January 2018 Counsel for the Applicant: Nicholas Poynder Solicitors for the Applicant: Kinslor Prince Lawyers Counsel for the Respondent: Allyson Ladhams Solicitors for the Respondent: Australian Government Solicitor
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