GYNF and Minister for Home Affairs (Migration)

GYNF and Minister for Home Affairs (Migration) [2019] AATA 959 (21 May 2019)
Division:GENERAL DIVISION
File Number: 2018/4419
Re:GYNF
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Mr A. Maryniak QC, Member
Date:21 May 2019
Place:Melbourne

The Tribunal sets aside the decision under review and in substitution decides that the Applicant not be refused a Return (Residence) (Class BB) visa under s 501(1) of the Migration Act 1958.
..............[sgd].........................................................
Member
Catchwords
refusal of visa under s501(1) – where applicant fails the character test – sexually - based offences involving a child - Ministerial Direction No. 79 - protection on the Australian community – impact on family members - expectations of the Australian community - decision under review set aside and substituted
Legislation
Migration Act 1958 (Cth)
Administrative Appeals Tribunal Act 1975
Cases
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Mr A Maryniak QC, Member
21 May 2019

By an application made on 3 August 2018, the Applicant seeks review of a decision of a delegate of the Respondent dated 11 July 2018 to refuse to grant the Applicant a Return (Residence) (Class BB) visa (the Visa) pursuant to s 501(1) of the Migration Act 1958 (Cth) (the Act).
The application for review is made in accordance with s 500 of the Act, which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of decisions made by delegates of the Respondent under s 501(1) of the Act.
This matter was previously adjourned to give the Applicant, presently living overseas, the opportunity to obtain legal representation. Such attempts were unsuccessful and the Applicant remains represented by his wife, who is not legally qualified. The Applicant did not lodge a Statement of Facts, Issues and Contentions. Mr Cunynghame, solicitor for the Respondent, properly assisted the Tribunal consistent with the model litigant principles.
The Tribunal has closely analysed the facts relevant to this matter and for the reasons set out below finds in favour of the Applicant.
The Law
Section 501(1) of the Act provides that “[t]he 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.”
Relevantly, s 501(6)(e) of the Act relevantly provides that:
“For the purposes of this section, a person does not pass the character test if:
…
(e)a court in Australia or a foreign country has:
(i)convicted the person of one or more sexually based offences involving a child; or
(ii)found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction…”
Annexure A of Ministerial Direction No. 79 (Direction 79) concerns the character test. It relevantly provides in relation to s 501(6)(e) that:
“7.(2)      Sexually based offences involving a child include, but are not limited to offences such as:
(a)       Child sexual abuse;
(b)       Indecent dealings with a child;
(c)       Possession or distribution of child pornography;
(d)       Internet grooming; and
(e)       Other non-contract carriage service offences.
(3)This provision applies irrespective of the level of penalty or orders made in relation to the offence.”
Section 501(1) confers a discretion on the decision maker. Even if the Applicant does not pass the character test, the Tribunal has the discretion as to whether the Visa should be refused.
In order to guide the decision-maker in the process under s 501, the Minister can provide a Direction under s 499 of the Act. The current Ministerial Direction is Direction No 79. In deciding whether the Applicant passes the character test, and if not, then in deciding how to exercise its discretion, the Tribunal must have regard to Direction 79.
Part B of Direction 79 concerns refusal of visas. Paragraph 11 identifies the primary considerations that are to be taken into account as follows:
“(1)In deciding whether to refuse a non-citizen’s visa, 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;
(c)Expectations of the Australian Community.”
Paragraph 12 identifies the other considerations that are to be taken into account as follows:
“(1)In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These conditions 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.”
These considerations are given their purpose by the principles set out in paragraph 6.3 of the Direction which are as follows:
“(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 women or children or vulnerable members of the community such as 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.”
Material before the Tribunal
The Tribunal heard oral testimony from the Applicant (via telephone), the Applicant’s wife, the Applicant’s Pastor and the Pastor’s wife. Statements from these individuals were tendered in evidence. In addition, the Tribunal had before it documents provided under section 37 of the Administrative Appeals Tribunal Act 1975 (the G- Documents).
Background
On 9 July 1968, the Applicant was born in Iran. On 31 March 2010, the Applicant arrived in Australia as the holder of a Student visa. On 22 December 2017, the Applicant departed Australia as the holder of a Protection visa.
On 31 March 2015, the Applicant was convicted in the County Court of Victoria at Melbourne of: Use A Carriage Service For Sexual Activity With Person Under 16 Years; Use Carriage Service to Transmit Indecent Communication Person Under 16 Years (2 Counts); and, Use Carriage Service For Child Pornography Material. The Applicant was ordered to serve a community corrections order for a period of 18 months. He was also ordered to perform 120 hours of community service within 18 months and was placed on the Victorian Register of Sex Offenders for eight years. In summary, the Applicant communicated online and engaged in inappropriate sexual communication with an undercover police officer, whom he believed to be young children, and with the intention of procuring to engage in sexual activity.
On 4 January 2018 the Applicant applied for the Visa. On 22 March 2018, the Respondent issued a notice of intention to consider refusal of the Applicant’s application for the Visa under s 501(1) of the Act, stating that the Respondent had information about the Applicant’s criminal history that suggested he did not pass the character test under s 501(6)(e)(i) of the Act. The letter contained the then relevant Direction 65, the Applicant’s National Police Certificate, sentencing remarks regarding the Applicant’s offending, and various statements from the Applicant’s character references and other documents provided by the Applicant (including those relating to the health of the Applicant’s wife and child). The Applicant provided a personal circumstances form dated 22 April 2018 in response to the notice of intention to consider refusal and provided further documents in support of the application, including statements from his wife and child and various medical and academic documents.
The Character Test
The Applicant does not satisfy the character test for the purpose of s 501(6)(e) in light of his sexually-based offences involving a child. Specifically, paragraph 7(1) of Annexure A to Direction 79 provides that a person will not pass the character test if they have been convicted of one or more sexually-based offences involving a child. As noted above, paragraph 7(2) defines but does not limit sexually-based offences to “[i]ndecent dealings with a child” and “[o]ther non-contract carriage service offences”, and paragraph 7(3) provides that s 501(6)(e) of the Act applies “irrespective of the level of penalty or orders made in relation to the offence”.
The Applicant did not submit otherwise and the Tribunal finds that the Applicant fails the character test. In the circumstances, the Tribunal needs to consider whether to exercise the discretion available under s 501(1) of the Act, by reference to Part B of Direction 79.
PRIMARY CONSIDERATIONS
Protection of the Australian Community
The Respondent submitted the matters set out in paragraphs 20 to 24 below.
Paragraph 11.1.1 of Direction 79 sets out the factors to which decision-makers must have regard when considering the nature and seriousness of the Applicant’s criminal offending or other serious conduct. The Applicant’s offending was sexual in nature, and must be viewed particularly seriously (Direction 79 11.1.1(1)(a)). Notably, the sentencing Judge made the following findings in relation to the Applicant’s offending:
(a)“During the conversation, you communicated with her with the intention of procuring her to engage in sexual activity by way of explicit conversations. You also masturbated during some of these exchanges while the officer could see you. You asked her to take part in a sexual role play and told a pornographic story which is the subject of Charge 4.”
(b)The Applicant’s exchanges with the undercover police officer “were of a salacious sexual nature and contained indecent suggestions.”
(c)The Applicant’s behaviour was “abhorrent” which “extended over a period of seven months and so it can be said to have been sustained and a course of conduct.”
(d)The Applicant’s offending was for “sexual gratification” and was “not ameliorated by your intoxication, though no doubt such a state would provide a disinhibiting factor.”
Limited consideration should also be given to the AFP Statement of Facts in which the Applicant’s interactions with the undercover police officers posing as young children are recorded. The Respondent properly conceded that it was not clear whether this was the Prosecution Summary (Exhibit A), as referred to by the sentencing Judge on 31 March 2015. Further, the Applicant’s offending involved crimes committed against a minor (Direction 79 11.1.1(1)(c)). Notwithstanding that the victims were not in fact children (and instead were undercover police officers), the Applicant pleaded guilty to and was convicted of sexually-based crimes involving children. Although the sentences imposed by the Court were at the lower end of the scale of possible sentences, the Applicant was nevertheless sentenced (Direction 79 11.1.1(1)(f)).
In assessing whether the Applicant represents an unacceptable risk of harm to the Australian community, regard must be had to paragraph 11.1.2 of Direction 79, which provides that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. 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 available information and evidence on the risk of the Applicant re-offending.
The Respondent further submitted that, notwithstanding some evidence of rehabilitation provided by the Applicant, there is an unacceptable risk that the Applicant will continue to perpetrate premeditated sexual crimes on members of the Australian community (Direction 79 11.1.2(1)). The nature of the harm to members of the Australian community should the Applicant re-offend would be significant (Direction 79 11.1.2(3)(a)). People who commit sexually-based crimes involving children should have no expectation that they would be able to remain in Australia (Direction 79 11.1.2(4)).
The Respondent submitted that the Protection of the Australian Community consideration weighs heavily in favour of refusal of the Applicant’s Visa.
Consideration
The Protection of the Australian Community consideration has two aspects:
(a)the nature of seriousness of the Applicant’s conduct to date; and
(b)the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
It is clear from the evidence that the Applicant’s wife obviously loves her husband, the Applicant, and her son very much. She is doing what she can to try to get her family back together. She believes in the Applicant and stated that he is remorseful and has realised the grave and serious nature of his offending. She also believes that he will not re-offend. Her faith in her husband and his‘re-birth’ is underscored by the fact that she represented him at the hearing of this matter. The Applicant’s oral testimony was consistent with these findings.
The Applicant is essentially self-represented though with the assistance of his wife. Whilst in such circumstances it is not for the Tribunal to run the Applicant’s case, it is necessary for the Tribunal to accord procedural fairness and ensure an even-handed, merits-based review.
In contrast to the Respondent’s submissions, there is material supportive of the Applicant not being refused the Visa. The following remarks and findings of the sentencing Judge are highly relevant. His Honour Judge Gucciardo stated:
“6Using a carriage service to procure persons under 16 years of age for sexual activity carries a maximum sentence of 15 years, as does transmitting child pornography. Using a carriage service to groom a person under 16 years of age for sexual activity carries a 12 year maximum sentence. Transmitting indecent conversations by way of a carriage service carries a maximum sentence of seven years. By these maxima, the law reflects the seriousness of this offending and I take these into account.
7I first look to the objective seriousness of your offending. The offending did not involve real child victims but undercover police officers, and though this is not a mitigating factor, it lacks, in my view, the aggravation had there been real children at the end of the line. The distance from you to the victim was on which, though you indicated could be overcome, meant in fact that you would not actually have ever had ready access to these young persons.
8… It cannot be said that your behaviour has had an impact upon a victim as most sexual crimes do. There can be no doubt that the offending was for sexual gratification and it is not ameliorated by your intoxication, though no doubt such a state would provide a disinhibiting factor.
9… Punishment for this offending must be proportionate and clear, and in my view, the offending, though serious, is properly at the lower to middle range of offending of this nature, although it falls squarely as the mischief which the legislation seeks to address.
10… Your plea is a significant mitigating factor, demonstrating a willingness to facilitate justice, take responsibility for your offending and is indicative of remorse.
11The plea here was entered at the earliest opportunity. It is clear that you come before the court as a man with no prior criminal history, although it is also clear that in this area of offending frequently offenders come before the court without convictions. This lack of criminal antecedents should be given less weight than is usually the case.
12In my view, based on the personal circumstances outline, your prospects for rehabilitation are good, particularly if any offence specific program administered is undertaken by you. In my view, the aspects of punishment and general and specific deterrence in your case can properly be met with the imposition of a community corrections order. Such a disposition here is not only appropriate because it would be seen to be more consistent with the rehabilitative aims rather than punitive aims of the sentence, but because the synthesis of circumstances of the offences and the offender in this case lead to my determination that such an order constitutes appropriate deterrence and denunciation and has the effect to exact proportionate punishment in all of the circumstances.
…
14You are 46 years old. You have no prior convictions. You were born in Iran and you reached university studies in translation at the University of Tehran. You married, and with your wife, you had a good work history. A son was born to you. In March 2010, you moved to Australia with your family. You have been accepted to a Master’s degree at Monash University. You needed to complete a bridging course before commencing this degree and you completed a number of graduate certificates in teaching, languages and translation with Holmesglen, Cambridge University, the Box Hill Institute, the Victorian Multicultural Commission and NAATI.
15I viewed a number of diplomas and certificates tendered on your behalf. You are now qualified as a professional level interpreter and you are completing a Master’s degree in international development practice at Monash University. You live with your wife and your 14 year old son. Your wife is a pathologist, and having been born Muslims, you are now both practising Christians and I have read references from your pastor which I take into account.
16You engaged with your GP since your arrest to arrange for a mental health plan and a referral to a psychologist, Mr Sharman, who provided a report to the Court, as well as a counsellor. You continue to see these professionals on a regular basis. You now consume alcohol only once a week, limited to one drink.
17Your offending began at a time when your wife and son were away and you resorted to the internet for company and developed an unsavoury habit while drinking excessively, perhaps. In my view, these matters, when placed beside the circumstances of your offending, require a disposition which adequately punishes, and at the same time, bestows on the community the long term benefit of rehabilitation and reclamation of an individual. These are objects which, at times, imprisonment fails to achieve…
18In my view, your prospects for rehabilitation are good, as I have said, with prospects of employment, ongoing study, family support and community and church involvement. The references that I have referred to emphasise the shame you have felt and the genuine remorse for your behaviour. Clemency in this case is not inappropriate and I have also taken into account the report provided to the court by Mr Martin Sharman, the clinical psychologist. You have actively engaged with therapy, but it is clear you will benefit from a targeted sex offender program and I intended to make your attendance upon such a program a condition of the community corrections order.
19The Community Correctional Services found you, upon assessment, to be suitable. I will order that you be placed on a community corrections order in relation to the four charges for a period of 18 months; that you receive assessment and treatment for alcohol and mental health treatment and monitoring and you will undergo assessment and participation in the sex offender advice and treatment services.
20You will be supervised by Ringwood Community Correctional Services and I will order that the order be subject to judicial monitoring. You will report to the Ringwood offices within two days from today. Although I did not request an assessment for a condition of community work, I do order that you perform 120 hour of community work.”

Consistent with the remarks of the sentencing Judge is the evidence of the other witnesses in this matter and, just as importantly, the Applicant’s conduct since the community corrections order was imposed on 31 March 2015. Such combined oral and written evidence of all the witnesses, including the Applicant, leads to the following findings by the Tribunal:
(a)the Applicant sought out and attended a counsellor and registered psychologist immediately following his arrest in late 2014, whilst he was on parole;
(b)the Applicant was and remains extremely remorseful, and deeply regrets his offending, of which he is embarrassed and full of shame, since his arrest in 2014;
(c)the Applicant has essentially met all of his reporting and other obligations of his community corrections order, save for one reporting misunderstanding which was explained;
(d)the Applicant has made great efforts to restore, and has regained, the trust and confidence of his wife. The love and caring between him, his wife and son is genuine and clear on the evidence;
(e)the Applicant’s wife and son have suffered considerable pain, disruption, distress, anxiety and emotional and financial hardship as a result, predominantly, of the Respondent’s consequential refusal to grant the Applicant the Visa;
(f)the Applicant has completed tertiary studies and will continue to complete further tertiary studies in Australia and has good employment prospects;
(g)the Applicant’s wife and son are Australian citizens and despite the son now studying in the United States of America on a partial scholarship, the family remain close and need the additional financial support which the Applicant could provide, were he living and working in Australia (he is currently unable to work in Iran);
(h)the Applicant’s wife of about 20 years remains truly committed to him, loves him very much and hopes that he may return to Australia, so that they may continue their married life together;
(i)the Applicant has not committed any further offences in Australia since his arrest in August 2014;
(j)the Applicant’s Pastor and the Pastor’s wife, having known the Applicant and his wife since 2011 and baptised them in January 2012, hold a view of the Applicant’s family life consistent with the relevant findings above and know him to be a responsible person, despite his uncharacteristic offending in 2014;
(k)the Applicant’s wife remains fully committed to him and her son. She is making every effort including the difficult task of appearing on his behalf and running his case as best she could, before this Tribunal; and
(l)the Applicant’s offending was out of character and his arrest and sentencing have had a profound impact upon him to such an extent that he is unlikely to re-offend in the future; particularly because he now realises the true consequences of his actions, even in an online setting.
Included in the evidence is a report of Mr Martin Sharman, psychologist, dated 17 August 2016, who saw the Applicant on 12 occasions from 6 November 2014 to August 2016. Whilst the report was specifically not a character reference or risk assessment in nature, it is a “supporting document indicating the psychological sequelae to his offense (sic).”
Mr Sharman reports that the Applicant appears to “completely understand the wrongfulness of his actions, however he reported to me that he believed he was not talking to actual under age people on line. He states he believed that everyone was pretending online.” Whether pretending or not, this online conduct is completely unacceptable. However, it is apparent on the evidence and findings above that the Applicant has learnt his lesson. The Tribunal accordingly finds that the risk of re-offending is low.
The Tribunal accepts that Mr Sharman’s report is qualified with the following limitation:
“I believe a Forensic Psychiatrist or Forensic Psychologist would be better placed to comment on the risk of re-offending; and that his is beyond my area of training or expertise to comment upon.”
However, based upon the evidence discussed above, together with the shame and remorse expressed by the Applicant, and the deterrent impact of his previous sentencing, the Tribunal is of the view that the risk of any re-offending is low.
The Tribunal finds that the nature of the online offending and potential harm to the Australian community should the Applicant re-offend, is serious. On balance, however, the risk to the Australian community is low due to the finding that the Applicant is unlikely to re-offend. This consideration falls just in favour of the Applicant.
Best Interests of Minor Children
As submitted by the Respondent, this consideration is not relevant because the Applicant’s son turned 18 years old on 29 November 2018.
Expectations of the Australian Community
The Respondent correctly points to the principle in paragraph 6.3(3) of Direction 79. This is to be balanced with the other relevant principles in paragraph 6.3 including 6.3(7). The Applicant has been living in Australia since 2010, and whilst here has made a positive, if minor, contribution to the Australian community by studying, working and raising his son, with his wife.
In light of the findings above, the Tribunal finds that this consideration weighs slightly in favour of the Applicant. As noted in YNQY v Minister for Immigration and Border Protection[2017] FCA 1466, the Federal Court has held that this consideration is inextricably linked to the other primary consideration regarding protection of the Australian community. The expectations referred to in the Direction are those espoused by the Government in paragraph 11.3 of the Direction.
Impact on Family Members
The consequences for the Applicant and his family are dire should his application be unsuccessful. The Tribunal finds that a denial of the Visa to the Applicant would have a devastating impact upon the Applicant’s wife and their son, both Australian citizens. Although their son is currently studying in the USA, the Applicant is presently unable to work overseas and cannot send money to assist his son with the incremental costs of his education over and above the partial scholarship.
International Non-Refoulement Obligations
Notwithstanding that the Applicant has been found to be owed protection obligations, the Respondent submits that this consideration does not arise in this case in circumstances where the Applicant currently resides in Iran. Notably, and as set out at Direction 79 12.1(1), a non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. The Applicant is already outside of Australia and resides in Iran and Turkey. The Tribunal agrees with this submission and finds accordingly.
Impact on victims
There is no evidence of any adverse impact on any victim if the Applicant were to return to Australia. Therefore, the Tribunal places no weight on this consideration.
Impact on Australian business interests
There is no evidence of any adverse impact on any Australian business interests if the Applicant were not allowed to return to Australia. Therefore, the Tribunal places no weight on this consideration.
Conclusion
In conclusion, the relevant primary considerations weigh slightly in favour of the Applicant and the relevant other considerations weigh in favour of the Applicant. Accordingly, the correct or preferable decision is that the Applicant not be refused the Visa.
DECISION
For the above reasons, the Tribunal sets aside the decision under review and in substitution decides that the Applicant not be refused a Return (Residence) (Class BB) visa under s 501(1) of the Migration Act 1958.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak QC, Member.

...........[sgd].................................................
Associate
Dated: 21 May 2019

Date of hearing: 7 May 2019

Advocate for the Applicant:

Advocate for the Respondent:

Solicitors for the Respondent:

Ms Farinaz Sarkeshi

Mr Adam Cunynghame

SPARKE HELMORE

[2019] AATA 959

21 May 2019

Key Legal Topics

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Immigration

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