Harris and Minister for Home Affairs (Migration)
[2019] AATA 718
•17 April 2019
Harris and Minister for Home Affairs (Migration) [2019] AATA 718 (17 April 2019)
Division:GENERAL DIVISION
File Number: 2018/3787
Re:Benjamin Harris
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Member C Edwardes
Date:17 April 2019
Place:Perth
The decision under review is set aside. The matter is remitted for reconsideration with the direction that Mr Liam Harris passes the character test pursuant to s 501(1) of the Migration Act 1958 (Cth).
...................................[sgd].....................................
Member C Edwardes
CATCHWORDS
MIGRATION – application for visitor short stay visa – battery conviction -- whether decision-maker is to exercise discretion to refuse the grant of a visa – whether the applicant is of good character – future conduct s 501(6)(d)(i)-- Direction 79 – decision set aside and remitted with direction.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 43(1)
Migration Act 1958 (Cth) – ss 499, 499(2A), 500(1)(b), 501-501(6)
CASES
Bushell v Repatriation Commission (1992) 175 CLR 408
CMHV and Director–General of Security and Minister for Foreign Affairs [2017] AATA 1547
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Shi v Migration Agents Registration Authority (2008) 235 CLR 286Yao v Minister for Immigration and Border Protection (2014) 140 ALD 21
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth) -- Direction No. 79 – Migration Act 1958 -- Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA – paras 6.1, 6.2, 6.3, 7.1(a), 8, 11(1), 11.1.1(b), 12.1, Annex A
REASONS FOR DECISION
Member C Edwardes
17 April 2019
INTRODUCTION
The Applicant Mr Benjamin Harris seeks review of a decision of a delegate of the Respondent (the Delegate) made on 5 June 2018 refusing to grant the Applicant’s brother, Mr Liam Harris, a Visitor (Tourist) (subclass 600) visa (the Visitor visa) (R1, T33, p254-255). The Delegate:
(a)was not satisfied that the Applicant passed the character test, by virtue of
s 501(6)(d)(i) of the Migration Act 1958 (Cth) (the Migration Act); and(b)exercised discretion to refuse to grant the applicant a Visitor visa, having regard to the considerations in Direction No. 65 – Migration Act 1958 (Cth) [Direction 65 was revoked with the commencement of Direction No. 79 which came in to force on 28 February 2019].
The decision of the Delegate to refuse to grant the Applicant’s brother, Mr Liam Harris, the visa was communicated on 5 June 2018 (R1, T33, p254).
BACKGROUND
Mr Liam Harris is a citizen of the United Kingdom where he is a bricklayer by trade, currently employed as a senior project manager for a number of construction sites across the United Kingdom (A1).
On 29 December 2016 Mr Liam Harris applied for a Visitor (Tourist Stream)(Class FA) visa. This application was refused by the Minister’s delegate on 28 May 2018 (R1, T33, p259).
The reasons for refusal of the visa by the Delegate are summarised accordingly (R1, T33, p261–265):
CHARACTER TEST
3. The relevant ground of the character test in this case is s501(6)(d) in the event that the person were allowed to enter or to remain in Australia, there is a risk that the person would (i) engage in criminal conduct in Australia.
4. In considering the risk that Mr HARRIS would engage in criminal conduct in Australia, I have regard to Mr HARRIS’ criminal history and considered the risk of him reoffending in the future.
Criminal Conduct
5. On 28 November 2012 Mr HARRIS was convicted by the Magistrates Court of Gwent in the United Kingdom of ‘Battery’ and sentenced to suspended imprisonment of 168 days, wholly suspended 12 months; costs 500GBP, disqualified from driving – non-motoring offence 42 days, unpaid work requirement.
Risk to the Australian community
6. I am mindful of the principle expressed in the Direction that Australia has a very low tolerance for any criminal conduct by visa applicants, particularly those who are not in Australia and have not made any significant contribution to the Australian community, and that the Australian community’s tolerance for any risk of future harm lessens as the seriousness of the potential harm increases.
7. …I have noted that Mr HARRIS has not received any further convictions since his Battery conviction in November 2012.
…
18. While I acknowledge that Mr HARRIS has no recorded convictions since 2012, I find that there is a risk, albeit low, that Mr HARRIS will reoffend.
…
23. Having considered all available information, in particular Mr HARRIS’ criminal history and the risk of him reoffending, I find that in the event that Mr HARRIS were allowed to enter in Australia, there is a risk that he would engage in criminal conduct in Australia. Having been given an opportunity to comment on this, Mr HARRIS has not satisfied me that he passes the character test. I find that Mr HARRIS does not pass the character test by virtue of s501(6)(d)(i).
DISCRETION
24. Having found that Liam Shane HARRIS does not pass the character test and having assessed the information set out in Mr HARRIS’ Penal Certificate, personal statement, his employer’s reference and the representations by his migration agent, his brother Ben Harris, and friends on his behalf, I considered whether to exercise my discretion to refuse to grant Mr HARRIS a visa. In doing so, I was bound by Ministerial Direction No.65 – Visa refusal and cancellation under s501 (“the Direction”). I determined whether, considering all the circumstances of the case, Mr HARRIS presents an “unacceptable risk” to the Australian community. In deciding this, I bore in mind the government’s commitment to protect the Australian community from harm and the principles set out at 6.3 of the Direction.
Primary Considerations
25. I gave primary consideration to the protection of the Australian community, taking into account of the nature and seriousness of Mr HARRIS’ conduct and risk to the Australian community should Mr HARRIS commit further offences or engage in other serious conduct; the best interests of minor children in Australia and the expectations of the Australian community.
Protection of the Australian Community
Nature and seriousness of the person’s conduct
...
29. I find that Mr HARRIS has engaged in criminal conduct involving violence against a person he was in a relationship with, for which he was sentenced to a term of imprisonment, albeit wholly suspended. Overall, I find his criminal conduct to be serious.
Risk to the Australian community
…
31. I find that there is an ongoing risk of Mr HARRIS reoffending, albeit low...
Best interests of minor children in Australia
…
33. Mr HARRIS has a niece, [name omitted] born [birth date omitted] 2010. I find that it is in [name omitted]’s best interest that Mr HARRIS’ visa not be refused, to enable him to develop a face-to-face relationship with her.
34. Mr HARRIS has a nephew, [name omitted] born [birth date omitted] 2013. I find that it is his nephew’s best interest that Mr HARRIS’ visa not be refused, to enable him to develop a face-to-face relationship with him.
Expectations of the Australian community
35. I find that the character concerns or offence in this case, involving violent offending are such that the Australian community would expect Mr HARRIS’s application to be refused.
Other Considerations
Impact on Australian residents or citizens
36. …I found no evidence that [Mr Harris’ brother, sister-in-law, niece and nephew] would suffer actual hardship if Mr HARRIS is refused a visa.”
[original emphasis]HISTORY OF RELEVANT CONDUCT
Mr Liam Harris was convicted with the offence of Battery occurring on 28 August 2018 in the Gwent Magistrates Court on 28 November 2012 (R1, T35, p266). He received a penalty of suspended imprisonment of 168 days, wholly suspended for 12 months. He had to pay costs of 775 pounds and compensation of 500 pounds. He was disqualified from driving for a non-motoring offence for 42 days and received an unpaid work requirement (community service).
Mr Liam Harris states at (R1, T36, p267):
2. My personal account of that day was that myself and my girlfriend at the time was [sic] travelling back to my house, when an argument occurred where she told me she had been unfaithful with my best friend. This made me emotional, upset and I spoke to her in a way that wasn’t myself and I told her to leave my vehicle, which left her a couple of miles from her home.
Later that day she rang the police to make a complaint from her friend’s house, I believe she made this phone call in spite as she knew the relationship was over. I was then taken to the police station and questioned where I was open and honest about what had taken pace [sic]. Here I found out that the girl was falsely accusing me of striking her with my hand…
On 8 July 2018 an application to review the Delegate’s decision was made to the General Division of the Administrative Appeals Tribunal (the Tribunal) (R1, T1, p3-9).
JURISDICTION
Section 500(1)(b) of the Migration Act provides the Tribunal with the jurisdiction to review the decision. The Tribunal is ‘under a duty to arrive at the correct or preferable decision in the case before it according to the material before it’ (Bushell v Repatriation Commission (1992) 175 CLR 408 per Brennan J at [4-5]). In so doing, it may exercise all the powers and discretions conferred upon the initial decision-maker; and may affirm, vary, or set aside the decision under review, and in the latter case substitute the decision or remit the matter for reconsideration (s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act)).
LEGISLATIVE FRAMEWORK
Section 499(1) of the Migration Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Section 499(2A) of the Migration Act mandates that the decision-maker (in this case the Tribunal) must comply with a direction under s 499(1) of the Migration Act. Accordingly, the Tribunal must comply with any relevant direction when exercising the discretion under s 501(1) of the Migration Act (Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583).
Under the authority granted by s 499 of the Migration Act, the Minister has given written directions with which the Tribunal must comply, namely Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 79) which revoked and replaced the earlier Direction No. 65.
Section 501(1) of the Migration Act is as follows:
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.
Relevantly, subsection 501(6) of the Migration Act is as follows:
(6)For the purposes of this section, a person does not pass the character test if:
…
(d)in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia.
(ii) harass, molest, intimidate or stalk another person in Australia; …
The role of the Tribunal in such a review is to determine for itself what is the correct and preferable decision based on that evidence (see Shi v Migration Agents Registration Authority (2008) 235 CLR 286 (Shi); Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 (Drake)). The Tribunal conducts its own de novo assessment and determination of the matter. Its role is “‘to do over again” what the original decision maker did’ (see Yao v Minister for Immigration and Border Protection (2014) 140 ALD 21, 28 [41] per Perry J (White and Wigney JJ agreeing) referring to Shi at [100] per Hayne and Heydon JJ, see also at [37] per Kirby J; see also CMHV and Director-General of Security and Minister for Foreign Affairs [2017] AATA 1547 at [37] referring to Drake).
MINISTERIAL DIRECTION 79
On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs made Direction 79 pursuant to s 499 of the Migration Act, which commenced on 28 February 2019.
Paragraph 6.1 of Direction 79 sets out the objectives of the Migration 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.
…
(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 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(2) 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 79 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 are set out in paragraph 6.3 of Direction 79 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 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.
Paragraph 7(1)(a) of Direction 79 states that 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;…
Paragraph 8 of Direction 79 further states that in taking the relevant consideration 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 the visa.
(4) Primary considerations should generally be given more weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
Paragraph 7(1)(a) of Direction 79 provides that, informed by the principles set out in paragraph 6.3 of Direction 79, the decision-maker, in this case the Tribunal, must take into account the considerations in Part B of Direction 79 in order to determine whether the visa should be refused. If it is determined that the Applicant’s brother does not pass the character test, then the three primary considerations in paragraph 11(1) of Direction 79 must be applied to the specific circumstances of his case. They are:
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(1) of Direction 79 requires that other considerations which are to be taken into account in deciding whether to refuse a visa, 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.
Annex A to Direction 79 (Annex A) provides direction on the application of the character test set out in s 501(6) of the Migration Act.
ISSUES
The issues before the Tribunal are whether or not Mr Liam Harris passes the character test as required by s 501 of the Migration Act, and if he does not, whether the Tribunal should exercise its discretion to affirm the decision to refuse to grant the visa.
EVIDENCE
The Tribunal received the following evidence:
·Applicant’s submissions dated 11 January 2019 (Exhibit A1);
·Letter of support by Ben Harris (undated) (Exhibit A2);
·Letter of support by Mark Baines dated 9 October 2018 (Mr Liam Harris’ Accountant) (Exhibit A3);
·Further letter of support by Mark Baines dated 9 October 2018 (Mr Liam Harris’ Accountant) (Exhibit A4);
·Letter of support by Michael Ewers dated 7 October 2017 (Mr Liam Harris’ Personal Trainer) (Exhibit A5);
·Letter from Paul Morris (lawyer) to Mr Liam Harris dated 29 November 2012 re Common Assault case (Exhibit A6);
·Letter of support by Benjamin Harris and Kirsty Davies (undated) (Exhibit A7);
·Liam Harris’ UK Police Statement (Exhibit A8);
·Liam Harris’ payments from AAD Ltd for past six months (Exhibit A9);
·Proof of Birth declaration from Peel Health Campus; Mr Liam Harris’ niece (Exhibit A10);
·Travel confirmation for flights from London to Perth for Mr Wyndham Harris and Mrs Lynda Harris, and copy of Lynda Harris’ passport (Exhibit A11);
·Kirsty Davies’ Personal History re. pregnancy (Exhibit A12);
·Hearing Certificate (Exhibit A13);
·T documents (T1-T43, pp1-282) (Exhibit R1);
·Respondent’s Statement of Facts, Issues and Contentions (SoFIC) dated 15 February 2019, with Annexure A (Exhibit R2); and
·Hearing Certificate (Exhibit R3).
The matter was to be heard on the 1 March 2019. That date was vacated.
The matter was heard on 10 April 2019. The Applicant appeared in person. His brother, Mr Liam Harris, appeared in person by phone from Wales and the Respondent was represented by Mr Burgess from Sparke Helmore.
The Tribunal has reviewed all of the material before it and is satisfied all relevant evidence was before it, and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
The Applicant contends the following (A1):
The Tribunal member 'the member' is respectfully asked to consider the following issues and make a determination in favour of the visa applicant 'the applicant' for review.
The applicant for review is the natural brother of the visa applicant and resides in Australia as a permanent resident with partner and new born child.
The applicant has long term plans to migrate to Australia as a skilled points based applicant and is ultimately wanting to establish his own building company on arrival in Australia.
Nature of the Offence
The circumstances and facts of the offence have been outlined in the submissions, Police Clearance Certificate on the Tribunal file.
The member will note the applicant has shown remorse and deeply regrets his actions. The applicant has never committed a similar offence or indeed any other offences.
The Visa Applicant
The visa applicant is a citizen of the United Kingdom.
The applicant is currently employed and has never been unemployed in his trade of a bricklayer. The applicant has never received any unemployment benefits and prides himself on his work ethic, love of work and success on his working life.
The applicant is currently sub-contracting in a senior managerial role with Anthony A Davies Ltd as a project manager on various construction sites in the United Kingdom. The applicant has a monthly wage of £3500.00.
The applicant is in a high pressure, high responsibility position which requires costing and complex site management of building sites up to £1000000.00 in value and more. In essence the applicant is a person who is involved in complex managerial and administrative decision making on a daily basis.
Wales is a part of the United Kingdom known for mass unemployment, crime and broken communities. The achievements of the applicant are all the more inspiring coming from such a poor deprived area of the United Kingdom. The achievements of the applicant in his career are exceptional given his background. The applicant is a responsible professional and a model citizen in the United Kingdom and will continue on his path of achievement, work and desire to migrate and be with his brother in Australia.
The applicant is currently in a stable relationship with a woman and has ongoing long term plans to marry his partner Rebecca Needle, the applicant has been in a relationship for over five and a half years.
The applicant has a son called [name omitted] who is four years old.
The applicant would like to build a house and business in rural Western Australia near his brother on the outskirts of the Perth metropolitan area.
The applicant has plans to set up a building and construction company in Perth using his extensive British expertise and knowledge in building insulation.
Likelihood of posing a risk to Australian community
The applicant will be living with brother and sister in law at all times.
The applicant will be supervised by his family in Perth.
The applicant will not be driving a motor vehicle and will be residing with his brother who will entertain him during the whole of his two week period in Australia. The applicant will stay only two weeks in Australia. The risk or likelihood of confrontation or situation of conflict is therefore minimal. Suburban Perth is not a high risk area such as Sydney's eastern suburbs or St Kilda in Melbourne.
The applicant is wanting to spend quality family time with brother and his new family. The visit will be a chance for the applicant and his son to visit a new born family member in Perth. There will be no excursions to night clubs or socialising in hotels. All socialising with be with the family and the newly born baby.
The applicant will not place himself in any situation of potential conflict while on his short visit with his partner and child. The applicant is busy in his important role in the United Kingdom and can only spend two weeks in Perth.
This will be a family only 'time out holiday experience with the two families' [sic]
The applicant is keen to spend time in the outback and see the wildlife and experience 'the Bush and Aboriginal culture' [sic] with his partner and son.
The exotic wildlife of Australia is of interest to the applicant and his family.
The applicant is keen to enjoy a new cultural tourist experience and has no intention of consuming alcohol in excess, or consume any form of legal or illegal drugs. The applicant is a family man and does not consume alcohol or drugs.
Qualifications Skills Assessment and Migration to Australia
The applicant is also keen to possibly schedule his tourist visa with a skills assessment in Perth with VETASSESS as a bricklayer.
[original emphasis]
The Applicant further contends (A1):
This trade assessment for his qualification as a bricklayer will take approximately one day. The applicant completely respects and fully understands an application to migrate to Australia cannot proceed without a resolution of this character issue. The applicant is mindful and respects Australia’ [sic] government policy that migrants must share Australian values and respect of Australian law. The ability to travel to Australia will be an opportunity to show his serious intention of his desire to make a contribution to Australian society and be reunited with his family. The applicant is fully aware his permanent residency can be cancelled at any time after his entry into Australia should he offend in Australia or before entry.
The applicant will be required to undergo full Australian and United Kingdom Police checks before permanent residency is granted and therefore will not place in jeopardy his residency application. The very high costs of a skilled visa application require the character issue to be resolved before costs are incurred and out laid.
The skills assessment and migration application will take between twenty and twenty eight months to complete including visa waiting times.
Effectively the date of the relevant offence will be outside the Limitation period after the skills visa decision maker again has an opportunity to assess character issues in either 2021 or 2022.
It is the writers [sic] view, a cruel and arbitrary denial of a visa is contrary to basic human rights of a family reunion. The writer is of the view the applicant should not be subjected to cruel and arbitrary ongoing punishment after the punishment has been served fully and discharged in the United Kingdom.
The writer is aware many drug offences, affray, serious traffic offences, drinking driving offences have been approved by the Departmental decision makers in many skilled visa applications. After a skills application is lodged the decision maker in a skills visa points based application has discretion to assess and evaluate the circumstances and facts in total over a longer period of time. Part of this assessment procedure is the passage of time and long term pattern of criminal behaviour overall and current lifestyle. The applicant is now a happily partnered family man with a child.
The writer submits ultimately the decision on whether the applicant passes the character test should rest with the decision maker of the skilled visa application. This will allow further time to pass and the decision maker at the time can be satisfied the likelihood of re offending is zero or negligible
The Tribunal member can confidently be assured the skilled visa decision maker must be satisfied the character requirements are met. The skilled visa decision maker will have the benefit of a further two or three year period to pass and to assess whether the applicant has offended again in this period.
Each character issue is to be determined on a case by case basis.
Each character consideration is dependent on the facts of the case.
The facts of this case suggest no re offending is likely. The very specific circumstances leading to the assault are unlikely to be repeated.
The personal circumstances of the applicant are greatly changed and he is now a family man with a child.
The dispute as outlined related to an admission of infidelity.
The applicant is now in a new relationship, with a child and in full time employment.
The assault victim maliciously reported the incident to the Police Reporting to the Police resulted in a charge and a prosecution. The Police under guidelines at the time where required to prosecute. It is fair to say if the incident involved a male complaining against a women for assault in similar circumstances no action would have been taken by the by Police.
This writer has been instructed in 2016 the applicant met his former girlfriend [former girlfriend] by complete chance at a night club called Auberge Bar 25 Frogmore St Abergavenny NP7 5AH. The applicant was confronted by [former girlfriend] who slapped his face a number of times and verbally and physically assaulted him many times on the dance floor. The male Police officer who took the complaint said it was of no interest as it was an assault against a male by the female ex-partner of the complainant.
The applicant reported the matter to the Police who dismissed the complaint because it involved an assault against a male in the context of a former couple relationship break up. The writer is of the view the Police in the United Kingdom have a [sic] institutionalised bias against men in domestic violence and assault allegations. The fact the Police refused to pursue the complaint by the applicant after the night club incident in 2016 is very disappointing particularly as the complaint by the former girlfriend was pursued so aggressively by the Police.
The applicant was told [his former girlfriend] only received a caution over the phone after the violent incident and assault.
The Applicant has not been able to secure any form of Police report or court sentencing remarks from either matter due to the Police incompetence.
The applicant is fully mindful fully respects and understands Australian government policy on domestic violence in particular violence towards women.
The applicant was at the time of the offence an immature young male and was tragically and sadly overcome with emotion when his partner admitted infidelity.
Most young people sadly, be they male or female, are usually involved in some incident or activity such drug use, affray, property, driving or drink driving offences. We can accept, sadly, these unfortunate incidents are part of the growing up process of life for many young people and fortunately many of these incidents lead to character reformation and building outcomes.
Increasingly with the breakdown in society values and norms, young people of all backgrounds and sexes are subjected to enormous pressures which did not exist one or two generations ago. The issue is whether unfortunate incidents involving the law lead to character reformation and character building. In the fact circumstances of this unfortunate case the applicant has undergone a radical character reformation and has been subjected and exposed to a valuable life changing experience. Confirmation of his character reformation is in the model life the applicant now leads with a successful career family life and child.
The real issue to be address [sic] by the member and which must be considered
1. The member must determine and be satisfied whether the violent pattern is capable of repeat and is ongoing. It follows the Member must correctly express a concern and reject the review appeal if there is a real risk to the Australian community any assault or offence can be committed by the applicant .
This is clearly not negotiable. Risking possible violence against any member of the Australian public will never be acceptable.
2. The member must evaluate the current circumstances and lifestyle of the applicant and must carefully assess whether the current lifestyle may pose a risk of future re offending when in Australia. The applicant has a very stable employment situation and is a model citizen in his home Country of Wales in the United Kingdom. The family lifestyle history of the applicant is clearly one of a law abiding, tax paying productive and entrepreneurial individual who is moving forward with his life together with his family. The larger picture and long term life goal is for the applicant and his family to be united with his brother and parents in Perth Australia. The applicant would like to migrate with his parents to Perth within five years. The family will be united in Perth WA.
Since this very ugly and unfortunate incident the applicant has not re offended and will undertakes will never re-offend [sic].The applicant has fully reformed himself and has been taught a very sad and extremely painful lesson from this conviction.
The prospect of not being able to migrate to Australia to start a new life with his brother and his family is overwhelming. The applicant can make a large and very positive contribution to Australia when he ultimately migrates as a skilled independent migrant.
The Tribunal member will respectfully note
A. The applicant has not re-offended since the original offence in 2012.
There is no pattern of violence, drug taking, traffic, sexual offences or any criminality in the history of the applicant
B. [sic]
The punishment has been served in full in accordance with British law.
There is no record on the criminal file the applicant attempted to evade his punishment.
It is inconceivable the applicant will be barred from Australia permanently.
The applicant has shown remorse. The applicant has received and understood a painful lesson and undergone a radical character overhaul. Fully recognising violence against any person of whatever gender is totally unacceptable.
While fully and completely accepting any violence is unacceptable the writer makes the comment the current circumstances of the applicant must be assessed.
The applicant, six years later, is now with a son and partner in a stable relationship. The applicant is a family man in full time employment.
The writer is of the view violence can never be acceptable in any form however in the opinion of the writer drug dealing, sexual offences, violent armed offences and terrorism can never under any circumstances be dismissed or accepted and are in a different category.
C. [sic]
The applicant will be commencing his application to migrate to Australia after his tourist family visit of two weeks. The final determination as whether the applicant passes the character test should rest with the final decision maker in the skilled visa application. A further two or three years will have lapsed after preparing for his permanent residency application which would allow the decision maker at that time to confirm the applicant was not involved in any criminality or violence against any person.
D. [sic]
The departmental line of questioning in the early stages of the application process involved concerns about misinformation in his application and employment history. This then turned to issues of violence and the criminal record of the applicant. As this issue was not raised immediately initially the writer has concerns the decision maker was on a fishing expedition or exercise to reject the applicant regardless The decision maker did not exercise the decision making process in good faith .
E. [sic]
The applicant will spend only two weeks in Australia and will not be in any situation where he can consume drugs or alcohol. The applicant does not consume intoxicating substances. The entire period will be spent with his brother who is providing accommodation and will not put himself in a situation of risk. The applicant will be with his partner and child and his new born niece and brother.
The applicant has incurred very significant costs in the appeal procedure with the Tribunal .This is an indication of his commitment to Australia and a respect for the processes of Australian law. The cost, dedication and delay in pursuing this appeal is a very good reflection of his desire to establish to the Tribunal and the department his good intentions, remorse at his past and genuine reformation of his character.
The desire to celebrate the birth of his newly born niece and see his brother and to eventually migrate is a strong motivation never to re-offend.
Allowing the applicant to travel visit and prove himself with the Department will pave the way for his migration and family reunion in Australia.
[original emphasis]
The Respondent contends (R2):
The character test
26.On 28 November 2012, the visa applicant was convicted of battery in relation to an offence that occurred on 28 August 2012. The visa applicant acknowledges that the offence was committed against his then girlfriend. The visa applicant was found guilty of the assault following a hearing before a Magistrate and was sentenced to 168 days imprisonment, suspended for 12 months. He was also disqualified from driving for 42 days and subjected to unpaid work requirements, a £500 compensation order and ordered to pay costs of £775 (T35).
27.The visa applicant has provided submissions (T42) which addressed his recollection of the circumstances of his offence. In particular, the visa applicant states that:
On the date of the incident the former girlfriend admitted she did not like the applicant and had been seeing another man sexually. The former girl friend admitted infidelity. The admission was made as the couple were returning from a night out. The admission was made in the motor vehicle owned by the applicant. The applicant was devastated by this admission and was overwhelmed with grief as he was planning to purchase an engagement ring and propose to the former girlfriend. Whilst in this highly distressed state the applicant and former girl friend had a verbal argument. The applicant asked his girlfriend to leave the car in the centre of town. The applicant believed the former girl friend exaggerated the nature of the dispute and fabricated the physical eviction from the motor vehicle. The applicant recalls opening the door of the car and may have touched the former girlfriend. This incident was maliciously exaggerated to ensure the applicant was charged by the Police. There were no injuries or bruises as a result of this alleged physical expulsion from the car. The applicant received poor legal advice and consented to have his matter heard before a Magistrate.
28.This recollection is repeated in the visa applicant’s statement at T36. In that statement the visa applicant alleges that his former girlfriend falsely accused his of striking her with his hand in the car.
29.The visa applicant has not provided any independent evidence of the circumstances of the offence which supports a finding that he did not strike his then partner resulting in the conviction for battery against his then girlfriend.
The visa applicant has alleged that his inability to obtain any records from the UK Police or Courts is a result of “Police incompetence”.
30.Notwithstanding the visa applicant’s description of the offence, the visa applicant acknowledges that the charges went to Court and that he was found guilty of the offence (T36).
31.The Minister contends that the visa applicant has attempted to downplay his involvement in the assault, regularly blaming the victim of the domestic assault and that this demonstrates that the visa applicant is not remorseful for his actions and at a risk of reoffending.
32.In the visa applicant’s submissions dated 11 January 2019, the visa applicant attempts to downplay his offence, specifically noting that:
The assault victim maliciously reported the incident to the Police. Reporting to the Police resulted in a charge and a prosecution. The Police under guidelines at the time where required to prosecute. It is fair to say if the incident involved a male complaining against a women for assault in similar circumstances no action would have been taken by the by Police.
33.In circumstances where the visa applicant has not accepted any wrongdoing in respect of his convictions, the Minister contends that there is a an unacceptable risk that the visa applicant will reoffend in a similar manner and that in doing so he could place members of the Australian community at risk of harm.
34.On this basis, the Tribunal can be satisfied that the visa applicant has engaged in conduct of character concern and that the risk of him engaging in further such behaviour is greater than “minimal or remote”. Accordingly, the Tribunal should conclude that the threshold issue of risk has been made out.
Discretion to refuse the Visa
35.The Minister contends that the determinative issue for the Tribunal in this matter is whether the grant of the visa should be refused. Below, this issue is addressed by reference to the factors set out in Part B of Direction 79.
The Protection of the Australian Community
36.Pursuant to paragraph 11.1 of Direction 79, this factor involves consideration of (a) the nature and seriousness of the visa applicant’s conduct to date, and the(b) the risk to the Australian community should he commit further offences or engage in other series conduct.
Nature and seriousness of conduct
37.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 visa applicant’s criminal offending or other serious conduct. Taking into consideration the factors relevant to the present application, the Minister contends that the visa applicant’s prior conduct was both criminal and serious (Direction 79, para 11.1.1(1)(a)).
38.As foreshadowed earlier in these submissions, Direction 79 was enacted to direct the Tribunal to place greater weight on violent offences committed against women. In circumstances where the visa applicant’s offending, involved physical domestic violence against his girlfriend, the Tribunal is directed to view those offences “very seriously, regardless of the sentence imposed” (Direction 79, para 11.1.1(1)(b)).
39.Notwithstanding the qualification in Direction 79, para 11.1.1(1)(f), the Minister contends that the objective seriousness of the visa applicant’s offence is reinforced by the sentence imposed on the visa applicant. Sentences of imprisonment are the last resort in the sentencing hierarchy and are reserved for the most serious criminal conduct.
40.The Tribunal has previously highlighted the seriousness of domestic violence in Ahori and Minister for Immigration and Border Protection [2017] AATA 601 at [53]:
Domestic violence is a very serious matter. In no way can violence in a domestic situation by one partner against another be trivialised or downplayed. The implications of such violence on the children, broader family and friends of the parties involved can be serious and long lasting.
41.In Leau and Minister for Immigration and Border Protection (Migration) [2017] AATA 918 at [48], the Tribunal cited with approval Divane and Minister for Immigration and Border Protection (Migration) [2016] AATA 728 at [57], in which the Tribunal observed that:
The Respondent has submitted that the Government also takes a very serious stance on domestic violence in particular. They pointed to the numerous and costly measures that it is currently taking to address domestic violence in Australia. Further, in a media release issued in September 2015, Prime Minister Turnbull and a number of other government Ministers expressed the view that domestic and family violence has a devastating impact on the Australian community; that domestic, family or sexual violence is unacceptable in any circumstances, and that the issue must be elevated to our national consciousness. I find this material a persuasive statement of the Government’s views on domestic violence.
Risk to the Australian community
42.In assessing whether the visa 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 visa applicant re-offending.
43.The Minister contends that the nature of the harm if the visa applicant were to reoffend is serious and is likely to involve physical and psychological harm to members of the Australian community. Further domestic violence, and the harm that would be caused if it were to be repeated, is sufficiently serious that any likelihood that it may be repeated is unacceptable.
44.The Minister contends that the protection of the Australian community strongly weighs in favour of refusal.
Best Interests of Minor Children
45.Direction 79 sets out a number of factors to be considered in assessing the best interests of minor children. These include: the nature and duration of the relationship between the child and the person; the extent to which the person is likely to play a positive parental role in relation to the child; the likely effect that any separation from the person would have on the child, whether there are any other people who fulfil parental roles with the child; any known wishes of the child; and any evidence that the person abused or has neglected the child or that the child has otherwise suffered from trauma from the person’s actions.
46.The visa applicant has identified three minor children that would be affected by a decision to refuse the visa applicant’s visa: his nieces and nephews aged 0, 5 and 8.
47.The Minister contends that this consideration should be given limited weight in the visa applicant’s favour, in circumstances where:
a. The visa applicant has not previously had any substantial face-to-face relationship with the children (Direction 79, para 11.2(4)(a)).
b. The children reside with their parents who fulfil the parental role (Direction 79, para 11.2(4)(a) and (e)).
c. Ongoing separation from the children is unlikely to negatively effect the children given the lack of previous physical contact (Direction 79, para 11.2(4)(d)).
d. The visa applicant is able to communicate with the children in other ways such as via telephone or video communication (Direction 79, para 11.2(4)(d)).
48.On balance, the Minister contends that this consideration does not weigh in the visa applicant’s favour and is, at its highest, neutral.
Expectations of the Australian community
49.This primary consideration also weighs heavily against refusal. Regard must be had to the Principle that the Australian community would expect the government to refuse the visas of non-citizens who have committed serious crimes, such as the visa applicant.
50.In relation to a non-revocation decision, Mortimer J observed in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 that this consideration is linked to the protection of the community and “in substance… is adverse to any applicant” (at [76]). Her Honour accepted that the “expectations” referred to “are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes” (at [76]). Mortimer J went on to say (also at [76]):
The Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
51.The Minister contends that a similar approach would apply to a visa refusal such as this matter.
52.The enactment of Direction 79 makes it clear that the Australian community would particularly expect that a non-citizen that had committed a violent crime against a woman would be expected to be denied the privilege of coming to Australia (Direction 79, para 6.3(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
53.The Minister contends that this primary consideration weighs heavily against the grant of the visa applicant’s visa.
Other Considerations
Impact on victims
54.There is no evidence that the victim of the visa applicant’s offending would be impacted by a decision in this matter. This factor neither weighs for or against refusal.
Impact on family members
55.The Minister acknowledges that there would some impact on the visa applicant’s family in Australia if the visa was refused. There is no evidence which suggests that the visa applicant’s family is unable to visit the visa applicant in the UK.
56.The Minister contends that this consideration weighs in favour of the visa applicant, but should only be given limited weight and is not outweighed by any of the other considerations weighing against refusal.
Impact on Australian business interests
57.Paragraph 12.4(1) of Direction 79 provides that this consideration involves the impact on Australian business interests if the non-citizen’s visa application is refused, noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project, or delivery of an important service to Australia.
58.The visa applicant is not employed in Australia and this factor neither weighs for or against refusal.
[original emphasis]
HEARING
Mr Liam Harris opened by stating:
·He was a bricklayer and self-employed Project Manager.
·He was only ever in trouble with the law once in 2012.
·He is hard-working and wants to come out to Australia to visit his family.
Mr Bishop opened by stating:
·The Respondent relied on its SoFIC (R2).
·The Applicant’s character and protection of the Australian community was the critical test in this application.
·Direction 79 had placed great weight to the protection of women and children.
·The Applicant’s past conduct was of particular concern in this application.
Under cross-examination Mr Liam Harris stated:
·He agreed that he had been convicted to a charge of Battery in 2012.
·He disagreed with the particulars that led to his conviction and was strident in saying he did not assault or reverse his car into the complainant, his former girlfriend.
·He said whilst he agreed he was convicted by the Magistrates Court with the offence of Battery he said – ’I told the truth I did not do it.’
Mr Burgess claimed the Applicant failed the character test and failed in the majority of elements in the discretion provision to approve the application. Direction 79 had strengthened provisions relating to offences against women and children. The offence of battery was a serious offence and the Court had utilised a suspended sentence, and disqualified the driver’s licence of Mr Liam Harris as part of his penalty for unlawful behaviour. Finally, Mr Burgess contended because Mr Liam Harris continues to downplay the circumstances of the offence he is not remorseful for his past actions.
CONSIDERATION
Whether Mr Liam Harris passes the character test
The Delegate relied on s 501(6)(d)(i) of the Migration Act to determine that Mr Liam Harris did not meet the character test. The Respondent claims that if Mr Liam Harris is allowed to enter Australia there is a risk, albeit low, that he would engage in criminal conduct.
The Tribunal can find no evidence to support this claim. The Respondent could only come to this conclusion on the basis of Mr Liam Harris’ past battery conviction in the United Kingdom in 2012.
There is no evidence in the Respondent’s SoFIC (R2) or submissions made at the hearing that suggest to the Tribunal that either the victim who resides in the United Kingdom, or any person in Australia, would be the subject of any criminal activity by Mr Liam Harris.
The Respondent relies on paragraphs 29-33 of the SoFIC (R2) to substantiate its claim that the Applicant is at risk of engaging in conduct as outlined in s 501(6)(d)(i) of the Migration Act. The Tribunal however is mindful of the following:
·The conviction occurred in 2012.
·There are no criminal convictions attached to Mr Liam Harris up to the offence in 2012 and since the time of his conviction.
·He received a suspended imprisonment sentence.
·He wanted to visit Australia in 2017 for a period of two weeks to attend his brother’s wedding and a dying family member.
·The Respondent places Mr Liam Harris at the low risk of re-offending.
·Mr Liam Harris is a family man and a father to a young child.
The issue before the Tribunal is the determination of whether, based on his conviction for battery in the United Kingdom in 2012, there is a risk that Mr Liam Harris would ‘engage in criminal conduct in Australia’ (R1, T10, p37) should he be successful with this application.
The Respondent’s contentions are based around the prior conduct of Mr Liam Harris and the associated risk of him engaging in criminal conduct whilst in Australia. There is however no evidence submitted to the Tribunal by the Respondent which demonstrates how the conclusion of Mr Liam Harris’ continued risk of engaging in criminal conduct was reached by the Respondent, other than the assumption of the Tribunal which was based on his previous conduct alone.
The Tribunal notes the Delegate assessed the risk of further offending by Mr Liam Harris as low. The Tribunal needs to be satisfied (R1, T10, p72):
…that there is more than a minimal or remote chance that the person, if allowed to enter or remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.
The Tribunal notes paras 6 and 6.1 in section 2 of Annexure A of Direction 79, which state:
6 Risk in regards to future conduct (section 501(6)(d))
(1)A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would engage in any of the conduct specified in section 501(6)(d) of the Act. The types of conduct specified are discussed below.
(2)The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.
(3)It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.
6.1Risk of engaging in criminal conduct in Australia (section 501(6)(d)(i))
(1)A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person will engage in criminal conduct in Australia.
(2)The reference to criminal conduct must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded.
The Tribunal notes in particular that Direction 79 (R1, T10, p72) states (at para 6(3)):
(3) It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.
The Tribunal again notes Direction 79 (R1, T10, pp71-72) which states (at paras 5.1-5.2):
5.1 Past and present criminal conduct
(1)In considering whether a person is not of good character on the basis of past or present criminal conduct, the following factors are to be considered:
a) The nature and severity of the criminal conduct;
b) The frequency of the person's offending and whether there is any trend of increasing seriousness;
c) The cumulative effect of repeated offending;
d) Any circumstances surrounding the criminal conduct which may explain the conduct such as may be evident from judges' comments, parole reports and similar authoritative documents; and
e) The conduct of the person since their most recent offence, including:
i.The length of time since the person last engaged in criminal conduct;
ii. Any evidence of recidivism or continuing association with criminals;
iii. Any pattern of similar criminal conduct;
iv. Any pattern of continued or blatant disregard or contempt for the law; and
v. Any conduct which may indicate character reform.
5.2 Past and present general conduct(1)The past and present general conduct provision allows a broader view of a person's character where convictions may not have been recorded or where the person's conduct may not have constituted a criminal offence.
…
b) In considering whether the person is not of good character, the relevant circumstances of the particular case are to be taken into account, including evidence of rehabilitation and any relevant periods of good conduct.
[original emphasis]
On the evidence before the Tribunal, it finds that other than a conviction in 2012, Mr Liam Harris has been a law abiding citizen of the United Kingdom both prior to and after the offence. He is a successful businessman in the construction industry in that country. There is no evidence before the Tribunal to suggest he would engage in unlawful conduct should he be permitted to enter Australia on a Visitor visa. At its most extreme, his re-offending category is described by the Respondent as ‘low’. Whilst the category is not minimal or remote as described in paragraph 6.2 of Section 2 of Annex A of Direction 79, the Delegate stated: ‘While I acknowledge that Mr HARRIS has no recorded convictions since 2012, I find that there is a risk, albeit low, that Mr HARRIS will reoffend’ [original emphasis] (R1, T33, p263).
The Tribunal notes at the time Mr Liam Harris made his application to visit Australia, his intention in 2017 was to attend his brother’s wedding and spend time with his family, including a dying family member. He has, as a result of the refusal by the Delegate to approve his application at the time, missed both of these important family events. He told the Tribunal he also missed a family gathering for Christmas 2018.
Mr Liam Harris was cross-examined at length at the hearing, and whilst he did not accept the facts which led to his conviction, he accepted he was found guilty and understood the consequences of that finding.
Mr Liam Harris presented as a truthful witness whose story surrounding why he wants to come to Australia is consistent. He wants to visit his family on this occasion and in the long term he would like to join them permanently.
What is not clear to the Tribunal is the severity of the battery on the victim. It would have been helpful to the Tribunal to have had access to the sentencing remarks of the sentencing court and a copy of the victim impact statement. The Tribunal accepts efforts have been made to obtain a copy of the transcript of the Magistrate’s Court that sentenced the Applicant, without success.
Direction 79 contains provision relating to women and children. Principle 6.3(3) states:
(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 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.
The Tribunal equally is cognisant of primary considerations relating to the nature and seriousness of the conduct in question at 11.1.1(1)(b) of Direction 79:
(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:
…
b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
The Australian community views those people engaged in any form of domestic violence very seriously. In this case the Tribunal notes Mr Liam Harris has a different interpretation to the events that led to his conviction, however the Tribunal also notes he was convicted of the offence he was charged with and was sentenced to a term of suspended imprisonment of 168 days, wholly suspended for 12 months with compensation and costs.
The Tribunal was regrettably unable to observe Mr Liam Harris, however his demeanour over the phone was at all times respectful in his engagement with Mr Burgess and the Tribunal. Mr Harris’ brother, the Applicant, and the Applicant’s partner attended the Tribunal in person to provide support to him.
The primary question for the Tribunal to determine is whether Mr Liam Harris is a person of good character and whether he is likely to engage in criminal conduct in Australia. These are significant matters which the Tribunal must consider.
There is no evidence before the Tribunal to show that an incident such as that which occurred in 2012 constitutes an ongoing pattern of behaviour against women by Mr Liam Harris. The Applicant has provided letters of supports from references who attest to the fact that Mr Harris is a hard-working and lawful member of his community in the United Kingdom (A3–A7). The Tribunal notes however that none of the references other than that provided from his brother, the Applicant, (A7) refer to his conviction in 2012. The Respondent states there is no evidence of rehabilitation or psychiatric assessment indicating his risk level for re-offending.
References in support of such applications need to acknowledge, at the very least, that they are aware of the past criminal behaviour of those persons for which they are attesting to have any weight before the Tribunal; otherwise they have limited value to the Tribunal.
The Tribunal views references from family members cautiously for obvious reasons.
The Tribunal also notes that the circumstances that gave rise to Mr Liam Harris’ past conduct in 2012, whilst considered serious and which cannot be condoned in any way, appear to be non-existent at the present time. He has been in a stable family relationship for five and a half years, and has a young child who is four years of age.
The Tribunal has no evidence before it in the form of conduct, offences, circumstances or characteristics which might indicate that there is more than a minimal or remote chance, that the Applicant’s behaviour would fit within s 501(6)(d)(i) of the Migration Act. There is no pattern of conduct since his conviction in 2012 to indicate to the Tribunal that if granted a Visitor visa, he would be a risk to the Australian community.
On the basis of the evidence presented, the Tribunal finds there is nothing to suggest that there is more than a minimal or remote chance that Mr Liam Harris would engage in conduct referred to in s 501(6)(d)(i) of the Migration Act. The lack of offending prior to and after the offence do not indicate to the Tribunal that he is at risk of engaging in such unlawful conduct in Australia should he be granted this application.
On this basis the Tribunal finds Mr Liam Harris does satisfy the character test and therefore it is not necessary to address the discretionary provisions under s 501(1) of the Migration Act to refuse a Visitor (Tourist) Subclass 600 visa.
DECISION
Having considered all the oral and written evidence before it, the Tribunal determines the decision of the Delegate of 5 June 2018 against Mr Liam Harris should be set aside. The matter is remitted for reconsideration with a direction that Mr Harris passes the character test pursuant to s 501(1) of the Migration Act 1958 (Cth).
I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes
...............................[sgd].........................................
Associate
Dated: 17 April 2019
Date(s) of hearing: 10 April 2019 Solicitors for the Applicant: Mr D Donjerkovich Representative for the Respondent:
Mr A Burgess Solicitors for the Respondent: Sparke Helmore
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