GTMY and Minister for Immigration and Border Protection

[2014] AATA 340

[2014] AATA  340

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/1277
Re	GTMY
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Mr Dean Letcher, QC, Senior Member
Date	29 May 2014
Place	Sydney

The decision under review is affirmed

...............[sgd].........................................................

Mr Dean Letcher, QC, Senior Member

IMMIGRATION AND CITIZENSHIP – visa refusal – failure to pass character test – substantial criminal record – discretion to cancel applicant's visa – Ministerial Direction No 55 applied – protection of the Australian community – seriousness and nature of the relevant conduct – the risk conduct may be repeated – best interests of minor children – decision under review affirmed

Migration Act 1958 (Cth)

NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38,

Direction No. 55 - Visa refusal and cancellation

REASONS FOR DECISION

Mr Dean Letcher, QC, Senior Member

29 May 2014

1. The Applicant seeks review of the Respondent’s delegate’s decision to refuse a Protection (Class XA) Visa under s 501(1) of the Migration Act 1958 (‘the Act’) on the basis that he does not satisfy the requisite character grounds. The Applicant applied for a Protection (Class XA) Visa on the basis of having reasonable fear of persecution as a homosexual man in Tonga.

   FACTUAL BACKGROUND

2. The Applicant is a male citizen of Tonga born there on 1974. His account of his life is that he lived with his family, completed high school and began accountancy studies at university in Tonga. He and his family were members of the Church of Latter day Saints (‘the Church’). In 1992 he commenced study in Hawaii at Brigham Young University (conducted by the Church) on a scholarship and also worked at the Polynesian Cultural Centre.

3. He ceased study between 1995-1997, and was a Church missionary in Virginia during that time. He then returned to the University in 1997. However, in August 1998 he was expelled from the university after being found having sex with another male student in his room. He then moved to California, working as a hotel desk clerk for about a year and then to a new hotel in Salt Lake City Utah in about September 1999.

4. On 12 May 2001 the Applicant was picnicking in a Salt Lake City park with gay and lesbian friends. He went to the public toilet and urinated. He now says that he noticed a young boy go to the opposite end of the wall urinal trough while he did this.

5. Shortly after the Applicant left the toilet, the boy’s father and others accused him of being a ‘child molester’ and masturbating in front of his son at the urinal. The group was aggressive, police were called and the Applicant was charged with “Lewdness Involving a Child” – a “Class A Misdemeanour” in Utah. He says that he attended court when the case was adjourned to another date, and he retained a lawyer who attended court with him in November or December 2001. He says that he heard no more from the lawyer or the court and “hoped that the whole thing had been dismissed or withdrawn or had gone away”.

6. In February 2002 he was detained and taken to the county jail by “federal marshals” because he had breached the conditions of his student visa. He was then told that a warrant had been issued for his arrest on the lewdness charge; that he would remain in jail until the charge was dealt with and that this could take many months. He says that he waited for months and then retained another lawyer who advised him that if he pleaded ‘nolo contendere’ (‘no contest) to the charge he would be given a quick hearing date and would receive a suspended sentence. He said that he followed that advice, was given a suspended sentence, moved to immigration detention and finally deported to Tonga in November 2002.

7. The Applicant remained in Tonga, conducting his own travel and tourism business, until making a trip to Australia in August 2011. He returned to Tonga for a short period before returning to Australia in February 2012 on a business visa. In June 2012 he applied for a Protection Visa. He was granted a Bridging visa while his application was processed but, when the application was refused, he was taken into immigration detention at Villawood and remains there.

   LEGAL BACKGROUND

8. The Minister may refuse to grant a visa if the Minister reasonably suspects that a person does not pass the character test in s 501(6)(a) of the Act, and the person does not satisfy the Minister that he or she passes the character test: s 501(1).

9. A person is taken not to pass the character test if he or she has a substantial criminal record.  A person has a substantial criminal record if he or she has been sentenced to a term of 12 months imprisonment or more, or has been sentenced to two or more terms of imprisonment totalling two years or more: subs 501(6)(a) and (7).

10. The Applicant concedes that he has a substantial criminal record and does not pass the character test. The Tribunal must determine whether it should exercise the discretion it has to grant or refuse the visa sought.

    DIRECTION NO. 55

11. The discretion in s 501(1) of the Act must be exercised in accordance with Direction No. 55 - Visa refusal and cancellation (Direction 55) which came into effect on 1 September 2012. Direction 55 is made by the Minister pursuant to s 499 of the Act and is binding on the Tribunal: s 499(2A).

12. Direction 55 includes principles which are “of critical importance” in furthering the Government’s objective of protecting the Australia community from harm as a result of criminal activity or other serious conduct by non-citizens: cl 6.2.  The principles relevant in this case are, in summary:

    1)being allowed to enter or remain in Australia is a privilege conferred in the expectation that a person will be law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community;

    2)a person who commits a serious crime, particularly against vulnerable members of the community, should expect to be denied the privilege of coming to, or to forfeit the privilege of remaining in, Australia;

    3)some conduct may be so serious that any risk of similar conduct in the future is unacceptable;

    4)the degree of tolerance of criminal or other serious conduct may be lower or higher depending on the length of time a person has been participating in, and contributing to, the Australian community; and

    5)the length of time that a person has been making a positive contribution to the Australian community, and the consequences of cancellation for minor children and other immediate family members in Australia, are to be considered.

13. Guided by these principles, a decision-maker must determine whether the risk of harm by a non-citizen is unacceptable.  Doing so requires a balancing exercise, involving consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk should be tolerated by the Australian community: cl 7.

14. Recognising that persons holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of their visa, differing considerations apply to visa holders and visa applicants.  In the case of a visa applicant, the following are primary considerations:

    (a)protection of the Australian community from criminal or other serious conduct;

    (b)the best interests of minor children in Australia; and

    (c)whether Australia has international non-refoulement obligations to the person.

15. Other considerations, which should generally be given less weight than primary considerations, must be taken into account where relevant.  They include, but are not limited to:

    (a)impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;

    (b)impact of a decision to grant a visa on members of the Australian community, including victims of the person’s criminal behaviour, and family members of the victim or victims, where that information is available and can be disclosed to the person being considered for visa refusal;

    (c)impact on Australian business interests if the person’s visa application is refused.

16. Primary and other considerations may weigh in favour of, or against, refusal, and one or more primary considerations may outweigh other primary considerations: subcl 8(3) and (4).

    EVIDENCE BEFORE THE TRIBUNAL

17. The Applicant’s application for a protection visa attached a statutory declaration of 6 July 2012 and Forms 866B, 866C and 80. Each of those forms required details of travel to other countries and of any criminal convictions. The Applicant denied such travel and any convictions. His statutory declaration omitted any mention of his 10 years in the USA or his conviction.

18. In his declaration sworn 4 December 2012, the Applicant said:

    “57. I was so embarrassed and ashamed of what I had been accused of in the US, as well as ashamed and unhappy about being expelled from University that I really just blocked out that whole period of my life from my mind. It was the only way that I could deal with it.” and

    “59 I didn’t tell my solicitor or the Department of Immigration about my time in America for this reason, I had blocked the whole 10 years that I had spent in the USA from my mind and life.

    60 It was extremely difficult for me to talk to my solicitor about my experiences as a gay man because this was the first time I had told anyone about what had happened in my life in Tonga.”

19. I do not find that explanation convincing for several reasons. Firstly, the application documents were prepared with the benefit of legal advice from a practice specialising in homosexual and HIV positive clients. The first declaration contained an extensive account of alleged sexual persecution and forced homosexual acts in Tonga.

20. Secondly, in his evidence to the Tribunal, the Applicant continued to explain his failure to reveal his time in the USA and his conviction, as he did in the declarations. In his Tongan travel business he dealt with passports, visas and their requirements. He must have realised the importance of his past residence and criminal history. I believe he did not reveal it because he knew that he might not be admitted to Australia because of the conviction, and revealing his stay in the USA would lead to a police check there. During his evidence it was suggested to the Applicant that he did not reveal the USA stay because he wanted to exclude any enquiries that might reveal the conviction. He denied that.

21. When asked “Did you think the Australian authorities might be interested in hearing about it?” he replied: “Yes” but when asked “Why would they be interested?” he said “I don’t know”.

22. He also said that he did not come to Australia in 2012 intending to stay and make a protection visa application. I note that his solicitor’s letter of 12 September 2012 to the Department says at page 3:

    “[x] left Tonga in 2012 in an attempt to live a life free of fear of persecution.”

23. I take that statement to mean that in 2012 the Applicant entered Australia intending to stay (contrary to his Business visa).

24. The Department’s enquiries revealed the Applicant’s Utah conviction before he disclosed it. After interviewing the Applicant, and revealing the conviction, the Department received a further statutory declaration sworn 4 December 2012 disclosing his 10 years in the USA, and giving a version of the events of his charging and conviction (paras 34-35). That version was repeated in his later statutory declaration sworn 23 April 2014 (paras 28-52) shortly before the Tribunal hearing.

25. At some time before the hearing in the Tribunal, the Applicant’s solicitor obtained the Utah court documents. These showed significant differences to the Applicant’s sworn accounts.

26. In August 2001 a warrant of arrest was issued against the Applicant. This is quite inconsistent with him appearing with a lawyer before the court in ‘November or December’. He had obviously failed to appear when required to do so.

27. The ‘Probable Cause’ statement supporting the issue of the warrant says:

    “1 The statement of [Infant Child] DOB 7/19/91 that on May 12 2001 at 1600 East 21200 South in salt lake County, the defendant [X] exposed and rubbed his penis in IC’s presence. The defendant then asked IC if IC wanted to touch the defendant’s penis and asked if he could touch IC’s penis.

    2 The post-Miranda statement of the defendant that he was in the bathroom at Sugar House Park with IC and that he had been drinking a lot of wine”.

28. Clearly the allegation against the Applicant went beyond exposing or masturbating. The Applicant conceded that his lawyer had read over to him the Statement before he entered a plea. The expression ‘post-Miranda’ means that the Applicant’s statement was made after he had been warned that he need not say anything, but that if he did it could be used against him in accordance with the US Supreme Court decision of that name.

29. Another document from the Utah court is headed “Statement of Defendant Entering a Guilty Plea”, and it recites notice of the charge, waiver of specified constitutional rights and ‘Consequences of Entering a Guilty Plea’ including the words “I am admitting that I did commit the crime[s] to which I plead guilty. I convict myself the same as if I were found guilty by a judge or jury….”. The Applicant agreed that he and his attorney signed the document as did the judge. There is no doubt that the Applicant pleaded guilty to the charge and did not plead “no contest’ as he had sworn in his declarations. The difference is that the Applicant continues to assert his innocence of the charge, and says he regarded a ‘no contest’ plea as not an admission of guilt. The plea of guilty entered would indicate otherwise.

30. I do not accept that the Applicant believed a plea of nolo contendere was being entered on his behalf. I do accept that he believed a plea bargain had been made and that he would not serve additional jail time for the offence. In 2002 the Applicant was an educated 28 year old man and in 2012 he was aged 38 years. At the Tribunal hearing he had seen the documents, and had time to reflect, but still denied the charge and his knowledge of the plea. This causes me to doubt the reliability and credibility of the evidence of the Applicant on other issues apart from the events of 2002.

31. The Applicant’s declarations give graphic and detailed descriptions of the violence and ill-feeling that the Applicant experienced from his family and local community in Tonga as a direct result of his homosexuality. He was not cross-examined on the incidents he alleged, except that it was put, and he agreed, that the state and its agents were not the source of his problems; rather, it was a widespread prejudice and preparedness to use violence in the general population and especially within his family. It is not necessary or desirable to set out the details and it was not suggested to the Applicant that these events had not occurred. Accordingly, I accept his account.

    DIRECTION NO. 55 – FACTORS IN EXERCISING THE DISCRETION

32. The Applicant does not pass the character test in s 501(6) of the Act given the conviction and sentence in Utah (albeit suspended) and a determination on the discretion is required. The primary considerations in the case of visa applicants are set out above and in this case only two are of real relevance.

    Best Interests of Minor Children in Australia

33. The Applicant has not fathered any children. There are no children in Australia whose best interests would be significantly affected if the applicant left Australia. Insofar as this factor may involve children of other parentage, he has a nine year old niece with whose family he lived for about a year, and he had a warm relationship with her (although questioned by Dr Ventura, as discussed further below). She has a father and mother caring for her as they have for the whole of her life. This factor is not of significance.

    Protection of the Australian Community from Criminal or Other Serious Conduct

34. In assessing the seriousness of the offending or other conduct to date, Direction 55 at the relevant parts of 11.1.1 requires me to note that :

    (a)sexual crimes are viewed seriously - this was a sexual crime.

    (b)crimes involving vulnerable members of the community are viewed seriously – this involved suggested sexual contact with a 9 year old boy.

    (d)conduct constituting failure of the character test is serious.

    (e)severity of the sentence imposed – not so serious but still substantial, although suspended.

    (f)   and (g)   frequency of offending – only a single offence.

    (h)giving false information to the Department – consistent failure to reveal the true situation concerning USA residence, offence and conviction on entry cards, application for visa documents, interview and statutory declarations.

    (i)a foreign offence classified as a serious offence in Australia.

35. The risk to the Australian community of future offending (11.1.(1)(b) is assessed by evaluating the probability of an offence occurring and the seriousness of such an offence. Sexual abuse of children is regarded as highly serious in this community. Such offences may not be revealed by children for many years which may mean the offender goes undetected, and/or the psychological impact on the child is not known and hence not able to be treated. The harm may affect the child for the rest of his or her life.

36. The Applicant tendered a report prepared by Dr Ventura, a Consultant Psychiatrist. Dr Ventura said the probability of re-offending is difficult to assess. There are static factors to be taken into account but there are also ‘dynamic’ factors. Using the Static-99 test, and given the offence, which she took to be exposing his penis to a child (and masturbating) in 2001 but without any further offence for 13 years and without ‘paedophilic paraphilia’ being present, Dr Ventura’s opinion was that the risk of re-offending was low. However, if she accepted that the Applicant had asked to touch the child’s penis and whether the child wanted to touch his, she said her clinical opinion would change significantly (Transcript 10.5). If the child were not related, the risk is higher (12.10). Paedophilic paraphilia was defined as an attraction to children who are pre-pubescent, but Dr Ventura had assumed that the information about the Applicant was accurate and that he did not exhibit that trait. She said that if she accepted that he had said those things to the child, that he had not volunteered that he had said them (15.45), that he had pleaded guilty while now denying the charge and the specifics of the charge (18.1), that he denied contact with children not related to him, when he in fact volunteered for work in activities where he was surrounded by children (22.18, 23.02), then based on her clinical experience and the reading she had done about paedophilia, that would increase her concern. The reason for the increase in concern is that the Applicant might be hiding a sexual attraction to children, with Dr Ventura stating “it does increase my level of suspicion that he may in fact be masking other factors which may increase his risk of re-offending but I have got no evidence for it” (29.1).

37. The doctor said: “It appears as if he might have misrepresented the truth. It goes to a lack of honesty and transparency perhaps, but I think that has been amply demonstrated by the further information provided to me today” (28.40)

38. The evidence was that the Applicant had involved himself in many activities with children’s groups, from cultural dancing to rugby, and it was quite clearly untrue to tell the doctor that he did not have a chance to interact with children who were not close to him (22.20).

1. My finding is that there is a raised index of suspicion that the Applicant is indeed attracted to children and that he may offend again. I believe that any significant likelihood that the Applicant’s offence (or something similar) may be repeated is unacceptable to the Australian community. It is a concern that he explains away giving false information to the Department by saying that he blocked out 10 years of his life. It is even more of a concern that he should not tell the truth to the psychiatrist retained by his own solicitors.

   Whether Australia has International Non-refoulement Obligations to the Applicant

2. On 19 December 2012 there was a Departmental finding of unknown status that in part stated “1A met”, “Protection Obligations Assessed” and “Protection Required” (T page 136). This was after representations made by the Applicant’s solicitor. I take “1A” to be a reference to Article 1A of the Refugees Convention. The delegate’s decision under review noted the departmental assessment (T page 43) and proceeded to assess the matter in accordance with s 501 of the Act and Direction 55. The Applicant concedes that the Tribunal has jurisdiction under section 501 of the Act. The fact that the Applicant’s circumstances do not fall within Article 1F(b) does not preclude the exercise of that jurisdiction.

3. That assessment does not amount to a grant of a protection visa and does not appear to have been made known to the Applicant until after the refusal. That finding does not bind the decision-maker in exercising a discretion under s 501(1) of the Act whether or not to grant this visa. A finding of “1A’ is a first step in applying s 36 (and following sections) of the Act.

4. Those sections reflect Australia’s interpretation of its obligations, and 11.3 of Direction No 55 requires a decision-maker to consider those obligations. One factor is that an international non-refoulement obligation does not preclude refusal of a visa (11.3(2)), but it requires careful weighing of the obligation against the seriousness of the offending and the risk of harm.

5. The extent of the risk of serious harm to the Applicant if he returns to Tonga requires consideration of the following:

   (d)Although ss 136-160 of the Tonga Criminal Offences Act criminalises homosexual acts, there are no reports of any such prosecutions (T page 103).

   (e)The Applicant lived in Tonga until age 18 and then between 2002-2011 without prosecution or other State persecution.

   (f)The Applicant attended university and conducted his business between 2002-2011 without State hindrance.

   (g)The Applicant’ business visa application in 2011 was under the auspices of the Tongan AFL President, his 2012 application was supported by the Ministry of Labour.

   (h)The harm the Applicant says he suffered in Tonga was not by the State, nor by agents of the State, but by his relatives and community members.

   (i)The Applicant never complained to Tongan police nor was subject to police harassment. He did not complain of police complicity or any inability of the State to protect him.

6. My view is that the evidence of likely persecution of the Applicant if he were returned to Tonga is weak. He is now a mature man who managed a business there for 10 years and, while he may be constrained in his behaviour by his family members and others, he is in a greatly different situation than he was as a teenager. I do not believe that this case is analogous to NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38, where the accepted harm if returned was “of the gravest kind” and there was a real prospect of indefinite detention in Australia. This is an entirely different case.

7. While it cannot be said that if the Applicant were to be returned to Tonga there is no risk that some section of the Criminal Offences Act might not be enforced, the Applicant has adduced no evidence that it is actually applied. My view is that there is not a real risk of the Applicant being persecuted in Tonga by the State or by reason of the actions or inaction of agents of the state for reasons of his membership of a particular group, namely homosexual men.

   OTHER CONSIDERATIONS

8. A large number of character references were tendered supportive of the Applicant’s generosity and Christian beliefs. Few appeared to have any knowledge of his conviction, sexual orientation or alleged persecution in Tonga. I give little weight to these references, preferring the expert and factual evidence, although they do show family and cultural support for the Applicant. I find no significant impact on family members in Australia nor on other members of the community from grant or refusal (except from risk of re-offence). These other considerations are of little weight.

   CONCLUSIONS

9. I find that there is a risk of the Applicant re-offending such that the Australian community would find the risk of harm unacceptable. I find the risk of harm to the Applicant if returned to Tonga to be greatly outweighed by the risk of harm to the Australian community if he remained here. I exercise my discretion so as to refuse the Protection (Class XA) visa sought.

   DECISION

   The decision under review is affirmed.

I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Mr Dean Letcher, QC, Senior Member

........[sgd]................................................................

Associate

Dated 29 May 2014

Date(s) of hearing	6, 7 and 15 May 2014
Counsel for the Applicant	Mr L Robison
Solicitors for the Applicant	HIV/AIDS Legal Centre
Solicitors for the Respondent	Mr L Leerdam, DLA Piper