HBDV and Minister for Home Affairs (Migration)
[2018] AATA 4409
•23 October 2018
HBDV and Minister for Home Affairs (Migration) [2018] AATA 4409 (23 October 2018)
Division:GENERAL DIVISION
File Number(s): 2018/4545
Re:HBDV
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member R. Pintos-Lopez
Date of decision: 23 October 2018
Date of written reasons: 22 November 2018
Place:Melbourne
For the reasons given orally at the hearing, the Tribunal sets aside the decision under review and remits the decision to the Respondent with the finding that the Applicant passes the character test under section 501(1) of the Migration Act 1958.
..................[sgd].....................................................Senior Member R. Pintos-Lopez
MIGRATION – visa refusal pursuant to 501(1) – whether the applicant passes the character test – significant social support – consideration of expert psychological evidence – applicant passes the character test – decision set aside and remitted
Legislation
Crimes Act 1958 (Vic)
Migration Act 1958 (Cth)
Cases
Ayache and Minister for Immigration and Border Protection [2018] AATA 310
Cao and Minister for Home Affairs (Migration) [2018] AATA 1261
Hong v Minister for Immigration and Multicultural Affairs [1999] FCA 1567
Lei Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
QKVH and Minister for Home Affairs [2018] AATA 1855
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466Secondary Materials
Ministerial Direction No. 65
REASONS FOR DECISION
Senior Member R. Pintos-Lopez
22 November 2018
The Applicant seeks review of a decision, dated 8 August 2018, made by a delegate of the Respondent, the Minister for Home Affairs (variously the Respondent or the Minister). The Respondent’s decision was made, pursuant to s 501(1) of the Migration Act 1958 (Cth) (the Act), to refuse to grant the Applicant a Safe Haven Enterprise (Class XE) visa (the visa).
The decision to refuse to grant the visa was made because the Minister’s delegate:
(a)determined that the Applicant did not pass the character test by reason of s 501(6)(d)(i) of the Act; and
(b)exercised the discretion pursuant to s 501(1) to refuse to grant the Applicant the visa.
For the reasons that follow, that decision is set aside and remitted back to the Respondent.
On 23 October 2018, I made the decision to set aside the earlier decision and remit it back to the Respondent. On that day, I gave a short summary of the oral reasons for the decision. The written reasons that follow supplement the oral reasons for the decision.
I. BACKGROUND AND RELEVANT FACTS
The Applicant is a 32 year old refugee from Iran. He grew up in Iran in an Islamic family.
The Applicant fled Iran because of an illicit relationship with a married woman.
In July 2013, the Applicant arrived by boat to Australia. Upon arrival he was held in immigration detention. The Applicant was released from detention in August 2013 upon being granted a bridging visa. The Applicant was later found to be owed protection obligations.
In around April 2014, the Applicant, having been released from detention, moved to Melbourne.
The Applicant initially engaged in volunteer work before working at a sports centre and later a furniture store.
In 2014, the Applicant, met the pastor of a Baptist church (the Church), who would later become his father-in-law (the father-in-law), when the Applicant offered to assist another Iranian man by interpreting for him.
Thereafter, the Applicant regularly attended the Church and met with the father-in-law to discuss religion and morality.
Around that time, the Applicant met his future wife, the daughter of the pastor.
In October 2015, the Applicant became engaged to the daughter.
In the first quarter of 2016, before getting married, the Applicant committed two sexual offences specifically in:
(a)January 2016 while teaching a piano lesson (the January offence); and
(b)March 2016, after posting a fake job listing and having a woman come to his house (the March offence).
As it turned out, the March offence was reported to the police before the January offence. Proceedings in the Magistrates’ Court followed for both offences and each was found to constitute a sexual assault pursuant to s 40 of the Crimes Act 1958 (Vic).
The Applicant was sentenced as follows, in:
(a)August 2016, he was sentenced for the March offence at the Magistrates’ Court in Melbourne to a community corrections order (a CCO) for 18 months with conditions of supervision, 100 hours community work, and relevant treatment; and
(b)March 2017, he was sentenced for the January offence at the Magistrates' Court in Broadmeadows to a CCO of 18 months with conditions of supervision and relevant treatment.
After being charged the Applicant met regularly with his father-in-law to discuss his offending.
In September 2016, the Applicant converted from Islam to Christianity and was baptized at the Church.
In October 2016, the Applicant got married.
On 1 December 2016, the Applicant’s bridging visa, which permitted him to be in the community, was cancelled and he was put into immigration detention.
At the time of the hearing, the Applicant had been in immigration detention since December 2016, which amounts to 22 months.
Following his detention, and because the CCOs were unable to be performed in migration detention, they were converted to fines, being $2000 for the January offence and $2500 for the March offence. The Applicant has paid the fines.
The Applicant was initially detained at Maribyrnong Immigration Detention Centre. At Maribyrnong, his wife visited him on a daily basis. His mother and father-in-law visited him in detention almost every day. He also received regular visits from his brothers and sisters-in-law and friends.
On 19 December 2016, the Applicant applied to the Respondent for the visa, which is a category of a protection visa.
In April 2017, the Applicant was moved to the Christmas Island Detention Centre. His removal to Christmas Island had a significant deleterious impact upon his wife and family as they were unable to meet with him on a daily basis.
While on Christmas Island, the Applicant was moved to a unit specifically for low risk people. While there the Applicant participated in various programs and counselling. He also attended a church within the centre.
The Applicant was later moved to Yongah Hill Immigration Detention Centre in Western Australia.
Most recently, the Applicant was moved back to immigration detention in Melbourne.
On 10 August 2018, a delegate of the Respondent notified the Applicant that his application to be granted the visa had been refused.
On 14 August 2018, the Applicant applied to the Tribunal for review.
II. RELEVANT PROVISIONS OF THE ACT
Section 501(1) of the Act provides:
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.
Section 501(6) of the Act relevantly provides:
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;
…
Otherwise, the person passes the character test.
Section 499 of the Act grants power to the Minister to give directions:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
…
(2A)A person or body must comply with a direction under subsection (1).
Ministerial Direction No. 65 made under s 499 of the Act currently applies to decisions made pursuant to s 501(1) (Direction No. 65).[1] Direction No. 65 sets out the objectives of the Act along with general principles and guidance in relation to the manner of exercising the discretion contained in s 501(1).
[1] The Direction was made on 22 December 2014.
Direction No. 65 provides at paragraph 6.1(1):
The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
The Direction then sets out a number of principles at paragraph 6.3:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1) sets out how to exercise the discretion:
Informed by the principles in paragraph 6.3 above, a decision-maker:
a) must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 8 explains how decision-makers are to take the relevant considerations into account:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
As referred to in paragraph 8 of Direction No. 65, the considerations are in three parts, which apply to the decision depending on the circumstances. Part B applies to visa applicants and provides, at paragraph 11(1), the three primary considerations:
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.
Each of these primary considerations are then explained further in Part B.
Direction No. 65 prescribes, at paragraph 12(1), certain other considerations that must be considered, if and where they apply:
In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a) International non-refoulement obligations;
b) Impact on family members;
c) Impact on victims;
d) Impact on Australian business interests.
In relation to the balancing of the various considerations under Direction No. 65, the authorities provide that:
(a)the Tribunal is obliged to consider the Direction and assess the degree of the considerations and, having done so, it must “put its conclusion on the issue on the scales in the manner provided for by the Direction”: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 589, per Whitlam and Gyles JJ.
(b)The Tribunal is not bound to accept the version of events put by the applicant; the decision-maker will give the applicant’s story such weight as he or she considers appropriate in all the circumstances: Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 427, per Davies J.
(c)When applying the discretion, the Tribunal must genuinely weigh factors leading to opposite conclusions and not artificially limit any of the factors: Hong v Minister for Immigration and Multicultural Affairs [1999] FCA 1567 at [20].
III. APPLICATION
These reasons proceed, in accordance with s 501(1) of the Act, to consider:
·first, whether the Applicant fails the character test because in the event that the Applicant were allowed to enter or to remain in Australia, there is a risk that the Applicant would engage in criminal conduct in Australia; and
·second, if the Applicant fails the character test, whether the discretion contained in s 501(1) should be exercised to not refuse to grant the Applicant the visa.[2]
[2] This is also expressed by Direction No. 65 as follows: informed by the principles in the Direction, and taking into account the considerations in Part B, whether the Applicant will forfeit the privilege of being granted a visa.
I find that the Applicant does not fail the character test. Further, I find that although not necessary to decide, had I been required to exercise the discretion in s 501(1), I would have exercised it in favour of the Applicant.
A. Whether the Applicant passes the character test
The Respondent relies on s 501(6)(d)(i) of the Act, which is one of the grounds contained in s 501(6)(d).
Section 501(6)(d)(i) provides that a person does not pass the character test if, in the event the Applicant were allowed to enter or to remain in Australia, there is a risk that the Applicant would engage in criminal conduct in Australia. That ground, by reason of the words “would engage”, necessarily requires an assessment as to the future risk of the Applicant of engaging in criminal conduct.
The Respondent referred to the decision of Deputy President Forgie in QKVH and Minister for Home Affairs [2018] AATA 1855, in which the Deputy President considers the ground provided for in s 501(6)(d)(i) of the Act. The Deputy President refers to clause 6 of Annexure A to the Direction as assisting in interpretation. That clause provides:
(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 risk that the person would engage in the future in the specified conduct set out in section 501(6)(d)
(Emphasis added.)
The Deputy President stated:
The word “risk” is not defined but its ordinary meanings when used as a noun, as it is in s 501(6)(d)(i), include the following which is relevant:
"... 1 the chance or possibility of suffering loss, injury, damage, etc;
Therefore, having regard only to the ordinary meaning of the word “risk”, the issue under s 501(6)(d)(i) becomes whether there is a chance or possibility of QKVH’s engaging in criminal conduct in Australia. The word “risk” must, however, be interpreted in its context and that is the context of the Migration Act and so in the context of who may, and may not, come to and/or remain in Australia. In that context, the word “risk” cannot be seen to mean simply a “chance or possibility” of a person’s engaging in criminal conduct in Australia for to do so would not take account of the realities of everyday life. Take, for example, members of the Australian community who drive a motor vehicle. Even if they have never done so before, there is a chance or possibility that any one of them may have a lapse in concentration or judgment and commit an offence against the road laws of a type for which a conviction may be imposed. That chance or possibility will, of course, be greater if the person has a history of traffic offences so that the risk of his or her doing so increases. Section 501(6)(d)(i) is not directed to the risk that a person will engage in criminal conduct if allowed to remain in Australia at what might be thought to be a theoretical level. It is directed to an assessment of risk at a level which is, as Direction No. 65 says,"... is more than a minimal or remote chance ..” of engaging in conduct which is, in this instance, criminal conduct. It cannot be set at a greater level than that for the word “risk" is not qualified by any adjective such as "significant, "substantial”, “real”, any of which might have done so.
There is no question that QKVH has engaged in criminal conduct in the past but I am required to assess the risk of his doing so if permitted to remain in Australia in the future. His past conduct does, however, inform the future as do his actions and behaviour since his last offending.[3]
[3] [13]-[14].
The assessment that the Tribunal must make according to QKVH and Minister for Home Affairs [2018] AATA 1855, is whether there is more than a minimal or remote chance of the Applicant engaging in future criminal conduct in Australia. The Respondent adopted that interpretation.[4]
[4] [11].
The state of satisfaction that the Tribunal must reach necessarily entails a prediction of future conduct. The Tribunal is required to reach a present state of satisfaction based upon evidence. It cannot, based upon that evidence, discount the possibility that there is “a” risk of future criminal conduct. That risk cannot be ruled out, as the Deputy President sought to explain in her example, in the case of any person and even more so in the circumstances of a person who has committed a criminal offence. Such an interpretation would render the formulation in s 501(6)(d)(i) otiose as the mere existence of past criminal offending without more would lead to a finding that a person is not of good character. It follows that the mere possibility that an applicant may in future engage in criminal conduct ought be excluded from the assessment. Similarly, trivial or immaterial risks.
I consider that properly assessed, there must be in the mind of the Tribunal, an apprehension of a risk of future offending. The Tribunal must conclude, on the basis of the evidence presented, that an applicant poses an actual and not theoretical risk of future criminal conduct.
1. The lay evidence
An assessment of whether the Applicant fails the character test in this instance requires consideration of the facts and the conduct of the Applicant in relation to his past criminal conduct, as well as an assessment of the wider circumstances and the Applicant’s conduct prior to and following his criminal conduct.
At the hearing, the Applicant tendered 16 witness statements including those of his wife, her family and friends. The following persons gave oral evidence:
(a)the wife;
(b)the father-in-law;
(c)the mother-in-law;
(d)two of the sisters-in-law; and
(e)a member of the Church, who is a friend of the wife’s family.
Documents were tendered in evidence including police reports detailing the Applicant’s offending along with other documents and letters of support relevant to the application.
In addition, an expert report of a psychologist was tendered on behalf of the Applicant. The psychologist also gave evidence at the hearing. The expert report is considered below under a separate heading and following consideration of the lay evidence.
In order to consider the lay evidence in the context of assessing whether the Applicant is a risk of engaging in future criminal conduct, it is necessary to set out the evidence as follows:
(a)The factual circumstances surrounding the two sexual offences.
(b)Evidence that assists an understanding of the Applicant’s level of remorse and insight into his offending.
(c)Evidence that shows the support that the Applicant has in the community from his wife, family and the Church.
(d)Evidence of the effect on the Applicant, his wife and family of his offending and time in immigration detention.
The two sexual offences and the nature of the offending
As noted above, the Applicant committed sexual offences in January and March 2016.
The January offence
In relation to the January offence, the Applicant was taken to and agreed with the statement of facts contained in a Victoria police document entitled “Preliminary Brief – Statement Made By Informant.” That statement provided in summary that:
(a)the victim responded to an advertisement on a website for piano tuition. In January 2016, she attended a house and was greeted by the Applicant. The lesson was conducted for approximately 1 1/2 hours without incident.
(b)Six days later, the victim arrived at the Applicant’s house for a second lesson and they went to the Applicant’s bedroom where the keyboard was set up. This was the same as the previous lesson.
(c)The Applicant stood behind the victim as she sat at the piano and corrected her posture. The Applicant then proceeded at various moments to touch her hair, back and chest, inside her top and kissed her neck.
(d)The victim told the Applicant to stop each time she was touched.
(e)Finally, the Applicant placed his hand on her breast, which was rebuked by the victim. He then asked her inappropriate questions. The victim left the house.
The March offenceIn relation to the March offence, the Applicant was taken to and agreed with the statement of facts contained in a Victoria police document entitled “Preliminary Brief – Statement Made By Informant.” That statement provided in summary that:
(a)the Applicant set up an account on a social media platform and posted an advertisement for a model/sales assistant.
(b)The victim and the Applicant sent messages to each other discussing the job and the Applicant requested that the victim attend a house for an interview.
(c)The victim caught a train to the property. The Applicant picked her up from the station and drove her to the property.
(d)At the house, the Applicant requested that the victim show him her resume and identification and they discussed the job. He told her that the job duties would include customer service as well as some modelling.
(e)The Applicant asked the victim to try on certain items of clothing, which he said was necessary for her to pose for photographs.
(f)The Applicant touched the victim various times on the pretext of arranging her for the photographs. During the course of that touching, the Applicant touched the victim on the breast. The victim told the Applicant not to touch her.
(g)The Applicant asked the victim to change clothes, which she did. The Applicant again proceeded to touch her on the pretext of arranging her for his photographs. He touched her on the arm and she told him not to touch her. The Applicant then touched her thighs pretending to adjust her skirt.
(h)The Applicant then, on another pretext, rubbed oil into the victim’s neck. He moved to her chest and she told him to stop.
(i)The victim then told the Applicant that she would leave the house. The Applicant then said some words and brushed his hand on the outside of the victim’s clothing and over her genital area. The victim left the house immediately.
The Applicant agreed that the business and job were fake.
The conduct of the Applicant, other than his deceit during the March offence, was broadly similar as it involved the continuation of sexually suggestive touching after being told in clear terms to stop.
The Respondent submits that the Tribunal ought conclude that there is a risk that the Applicant will again engage in sexual offending. He submits that the two sexual offences are in the not-too-distant past and notes relevantly that the Applicant left Iran because of having an affair with a married woman. It is not evident how the latter issue is relevant to the decision.
The Respondent also submits that each of the offences were committed by the Applicant when he was in a position of “some trust and power”, first as a teacher, and second as a “potential employer”. I agree with the Respondent that trust and power are relevant to the offending.
A repetition of the Applicant’s conduct, being touching of a sexual nature in circumstances where the person being touched tells the person to stop, would amount to criminal conduct. Importantly, the apparent escalation between January and March, because of the deceit by posting a fake advertisement, and engaging the victim in a fake interview, is significant. In relation to the March offending, the Applicant had many opportunities to abandon his course of conduct. The conduct in March was not spontaneous or opportunistic, but rather planned and deceitful. As such, the escalation exhibits a pattern of behaviour that increases the risk of future offending because, in part, it shows that the January offence was not an isolated event.
Evidence of remorse and insight into offending
Evidence of real remorse and insight tends to lessen the risk of the Applicant reoffending because it shows that he is able to appreciate that he has harmed others by his conduct.
The Applicant provided a written statement dated 26 September 2018. The Applicant also referred to and relied upon a number of earlier letters and statements provided in relation to the cancellation of his visa, dated 6 December 2016, 20 March 2017, 10 April 2017, 22 July 2017, and an undated document.
The Applicant stated that he understood the nature of his offending and was deeply remorseful.
The Applicant stated that he understood that the psychologist had recommended further counselling for him. He stated that he had been proactive in seeking out counselling and that he would pursue any counselling that was suggested to him by the Department.
Many of the witness statements referred to the Applicant having communicated his regret and remorse to those witnesses.
The Applicant’s wife was shown her statement, dated 26 September 2018, which she affirmed. In that statement, she referred to and relied upon various letters of support dated 4 December 2016, 7 March 2017, 17 July 2017, 1 November 2017 and 5 February 2018 in relation to the cancellation of her husband’s visa.
The Applicant’s wife stated that the Applicant exhibited great shame and remorse for his actions and the hurt that he had caused his victims, family, church and her.
The father-in-law provided a statement, dated 26 September 2018, in which he referred to and relied upon letters of support, dated 4 December 2016, 27 July 2017 and 29 January 2018.
The father-in-law stated that the Applicant had spoken openly about how sorry he was for his conduct. He stated that the Applicant continues to show remorse for his behaviour and stated that he did not believe that the Applicant would offend again.
One of the Applicant’s sisters-in-law gave evidence at the hearing along with providing a statement, dated 5 October 2018. She also referred to and relied upon an earlier letter of support, dated 23 July 2017, in relation to the cancellation of the Applicant’s bridging visa.
The sister-in-law stated that the Applicant had told her of his remorse on multiple occasions.
The Applicant stated that his offences had been as a result of his immaturity and that he had matured since then.
The Applicant did not fully explain the reason for committing the piano lesson offence other than to say that at the time he was not working, felt lost and was not thinking clearly. He stated that because he was not working at that time that he felt worthless and not productive.
The Applicant was questioned as to why he had engaged in the deception in relation to the March 2016 offence, including the use of a false name. In relation to other aspects of deception in the March 2016 offence, such as the fact that he did not have and was not planning to open a store and did not have any intention of employing the victim, the Applicant repeatedly referred to his lack of maturity. He also referred to his sexual frustration at the time.
The Applicant’s evidence in relation to his motive for offending was superficial. As such, it is suggestive of a lack of insight.
There are other circumstances relevant to the Applicant’s remorse and insight into his offending. One such circumstance is the Applicant’s lack of candour with his Iranian family in relation to his offending.
The Applicant stated that he had not told his family in Iran about his convictions because his parents had a “heart condition”.
The Applicant stated that in 2016 he told his older brother that he had been convicted of the offences in Australia.
The Applicant's failure to tell his parents in Iran of his offending shows a concealment of his wrongdoing. However, against this is the evidence of his widespread and detailed admissions to his family in Australia. This includes the fact that he approached his father-in-law immediately after being charged and the many meetings with his father-in-law thereafter.
On balance, and based upon the findings set out above, I find that the Applicant was a person who is deeply remorseful, affected and entirely willing to confront and accept his wrongful conduct.
The Applicant’s social support and integration into the Australian community
The Applicant’s social support network acts as a preventative to further offending. There is significant evidence of social support, relevantly:
(a)the Applicant’s social network along with the support he has received in relation to and following his revelation of his offending to others;
(b)the support that the Applicant received in detention such as visits and other contact while he was in detention; and
(c)the Applicant’s shared future goals should he be released from immigration detention.
Social network
The Applicant stated that he started attending the Church in 2014. He stated that in 2015 he was going to Church two times a week, on Thursdays and Sundays, at which time he undertook Bible studies and music sessions.
The Applicant’s wife stated that she met the Applicant in April 2014 and that they had started dating around August 2014. She stated that they were engaged in October 2015 at a music concert.
The father-in-law stated that his relationship with the Applicant is very close.
The father-in-law stated that he first met the Applicant four and half years ago when the Applicant offered to provide interpreting for another Iranian man. The Applicant later attended the Church with the Iranian man.
Subsequently, the Applicant began attending the Church on a regular basis. The father-in-law stated that at that time the Applicant became interested in the Christian faith and began to attend Bible studies, youth groups and Sunday sessions.
The father-in-law stated that the Applicant assisted him with music at the Church by playing the piano.
The father-in-law stated that he is aware that the Applicant has pleaded guilty to two charges of sexual assault.
The father-in-law stated that he was speechless when the Applicant first told him of the offending.
The father-in-law stated that the Applicant and he discussed the offences in great detail. The father-in-law read the police charge sheets and heard the police interview. At the time, they spoke about the pressures upon the Applicant and what constitutes acceptable behaviour in the Australian community.
The Applicant stated that his father-in-law provided counselling and spiritual advice and told him that he needed to grow up, take responsibility for his actions and consider the impact of his actions upon others.
The father-in-law gave evidence as to the integration and closeness of his immediate family and the Applicant’s position in that family. The father-in-law stated that the Applicant was an integral member of the family unit and that he had been greatly missed while in detention. The father-in-law stated that the absence of the Applicant was pronounced, particulary during family events, including Christmas celebrations. The father-in-law stated that the Applicant’s Christmas presents were in a cupboard waiting for his return. The father-in-law stated that the Applicant had provided a recording of his music which was played at a family wedding.
The sister-in-law is 19 years old and is currently studying nursing at university. She stated that her relationship with the Applicant was different from that of her sisters, in that the Applicant has a deeper intellectual engagement with her. She stated that the Applicant had assisted her with her high school studies in relation to some difficult subjects such as mathematics. She stated that the Applicant “and I care for each other like siblings, he is like an older brother to me and I am like a younger sister he never had.”
The Applicant’s mother-in-law provided a statement, dated 26 September 2018, and also gave evidence at the hearing. She also referred to and relied upon previous letters of support that she had provided in relation to the cancellation of the Applicant’s visa.
The mother-in-law stated that she had attended the Magistrates’ Court in January 2018 when the Applicant’s community corrections order was converted into a fine. The father-in-law stated that he had also attended Court at that time.
Contact while in detention
The list of visits to the Applicant while he has been in detention is lengthy and runs for many pages.
The Applicant’s wife stated that prior to the Applicant being moved to Christmas Island that she visited him every day except for two. While the Applicant was on Christmas Island, she stated that she spoke to him on the phone and by internet almost every day.
The Applicant’s wife stated that when the Applicant was transferred to Yongah Hill, that she travelled to Western Australia with her mother to see him for a weekend.[5]
[5] The mother-in-law stated that she accompanied her daughter to visit the Applicant when he was detained at Yongah Hill.
The father-in-law stated that he communicates with the Applicant through his daughter as well as via Facebook, email and phone calls. The father-in-law stated that he would often visit the Applicant when he was in detention in Melbourne.
The sister-in-law stated that she made time each Wednesday to see the Applicant.
The mother-in-law stated that she had visited the Applicant as much as possible.
Shared future goals
Evidence of the Applicant’s future goals may be relevant to an assessment of risk as it can show further social connection to the Australian community.
The Applicant’s wife stated that she and the Applicant have many goals and dreams including saving money to buy a home, starting a family, travel and creating a CD with him playing piano and her singing.
The Applicant stated that he had thought about his potential life and contribution to the Australian community were he to be released and that this included wanting to commence a bookkeeping course at TAFE and wanting to complete the Christian music album that he had commenced with his father-in-law. The father-in-law discussed the album that he and the Applicant had commenced writing and that he is looking forward to completing that project if the Applicant is released.
The father-in-law stated that he will personally mentor and assist the Applicant in Bible studies and be a father figure to help and support him. He stated that he intends to see the Applicant at least three to four times a week if he is released.
I find that the Applicant’s overall social support network and the support that he has received in relation to his offending is real and significant. The involvement of his father-in-law ought be singled out as persuasive evidence that the Applicant has emotional support and counselling in relation to his offending which is a factor that significantly diminishes the risk of reoffending. The daily visits ought be similarly singled out as evidencing that the Applicant has deep, committed and continuing support from his wife and family despite the effect of detention, which is considered below. The Applicant’s stated future goals I find are credible in so far as they amount to personally held beliefs on the part of the Applicant.
The effect of the Applicant’s offending and immigration detention
The effect of being charged, sentenced and the consequent loss of visa and detention, are relevant to the risk of reoffending, insofar as the Applicant is able to correlate his wrongful conduct to its serious consequences.
The Applicant stated that his time in detention at Christmas Island had been very tough. He stated that it was like jail and that he had witnessed bullying, fights and self-harm. He stated that on Christmas Island that he felt that he needed to survive and keep of out of trouble.
The Applicant stated that on Christmas Island he had been housed in the facilities for those detainees who were of good behaviour, being Green 1 for 6 to 7 months and Gold 2 for 11 months.
The Applicant’s wife stated that in October 2016 she lived for approximately two months with the Applicant following their marriage before he was taken into detention. She described the day of his detention as the worst day of her life.
The Applicant’s wife stated that “being away from him has been heart-wrenching and painful. I am helpless to do anything but write letters. Since he has been in detention he has left a massive hole in our family.”
The Applicant’s wife stated that the emotional stress of her situation has affected every facet of her life including her personal life and her work.
The Applicant’s wife stated that the situation also resulted in her seeking medical assistance including help from a psychologist. She has had to take medicine to deal with various medical complaints and has had trouble sleeping.
The father-in-law gave evidence of his concerns in relation to the well-being of his wife and daughter if the Applicant were forced to return to Iran. The father-in-law was visibly emotional when giving evidence about the impact of the Applicant’s detention on his daughter.
The sister-in-law gave evidence that she had serious concerns for her sister’s well-being. She also stated that she is deeply affected and continues to cry in relation to the Applicant’s detention.
The sister-in-law stated that the Applicant’s situation and visa uncertainty affects every member of her family. She stated that her mother struggles and constantly worries about the Applicant and her daughter.
The mother-in-law gave evidence of the severe impact of the Applicant’s detention upon her daughter, the Applicant’s wife. She stated that when the Applicant was moved to Christmas Island that it was very hard on her daughter and the family. She stated that her daughter broke down crying from time to time but that only the family was able to observe this as she is not a person who shows her emotions to others. She stated that her daughter had had difficulty in eating due to stress and that she had encouraged her daughter to seek professional help.
The mother-in-law stated that the separation of the Applicant from her daughter had had a huge impact on her daughter and on the family.
Summary
The wife’s evidence is of considerable weight in favour of the Applicant. She was an emotional and compelling witness. The terrible impact of the Applicant’s detention upon her entire life is plain. It was also notable that she has remained steadfast and visited the Applicant almost every day while she is able. Her commitment forms a significant emotional and supportive base for the Applicant; the Applicant’s relationship with his wife and her unwavering support for him weighs as a preventative factor against the likelihood of the Applicant re-offending.
I find that the effect of the Applicant’s conduct upon him, his wife and family, has been severe. It must be noted that the sentence in relation to his offending did not result in a custodial sentence. I find that the Applicant understands that his family’s suffering is on account of his behaviour.
I find that the consequences upon the Applicant and others who he cares about both in the past and as a future prospect of him reoffending, because of his social connections, significantly reduces the likelihood of his reoffending and thus the risk of engaging in criminal conduct in future in the event that he is allowed to remain in the Australian community.
2. The Expert Report
A psychological report, dated 26 September 2018, was provided on behalf of the Applicant as a report prepared for the purpose of the proceeding in the Administrative Appeals Tribunal (the Report). It was prepared by a qualified psychologist (the Psychologist).
The Psychologist gave evidence that she had been providing psychological assessments and reports in all jurisdictions since 1992. The Psychologist gave evidence at the hearing.
The Report considered a number of documents and was prepared as a result of a clinical interview with the Applicant and observations. The Report also took into account results of a number of what are referred to as psychological assessment instruments, including one entitled Risk for Sexual Violence Protocol.
The Report provides that the Applicant did not present with symptoms to warrant a diagnosis of any mental health disorder. However, he did display symptoms indicating mild stress, mild depression and moderate anxiety, all of which were considered as arising from the Applicant’s uncertain situation.
The Report states that the Applicant’s guilt and remorse is an appropriate response to his offending.
The Report provides:
The current state of assessment regarding sexual offending indicates that historical factors are the most robust predictors of sexual re-offence and the fact of a past sexual offence increases the likelihood of another sexual offence and more than one increases the risk more. Thus, based on the fact that this man has committed 2 sexual offences he must be considered at least some risk of re-offence.
The Report lists factors that, in the Psychologist’s opinion lessen the Applicant’s risk profile:
He is well connected socially with a supportive social network. This means he is not isolated and lonely. He does not have major mental illness as a destabilizing factor and he does not have prescription or illicit drug use as a destabilising factor.
There is no chronicity of sexual offence as both occurred within a discrete period of time. There is no indication of diversity of sexual offence which increases risk; both offences appear similar - characterised by inappropriate touching. There are no suggestions of physical violence and none of psychological coercion although the work related incident suggests attempt at psychological persuasion. He did not persist in a threatening manner when his advances were rejected.
He does not display any attitude that supports or condones sexual offence or violence.
He has not displayed unreliability in response to court imposed conditions and he does not present as an individual who would be rebellious or antagonistic towards any obligation to perform community work or engage in counselling. His past response when he was granted a disposition with obligations to report and perform community work indicates conscientiousness and reliability.
The Psychologist gave evidence at the hearing and was asked whether exposure to domestic violence increased the risk of re-offending in relation to sexual offences. She stated that this could be a factor, but later stated that there was “no direct link”, with the qualification that it was nonetheless an important part of a person’s upbringing. She stated that the Applicant’s father was frequently violent towards the Applicant and had high expectations of him.[6] She stated that the exposure to the domestic violence could have a positive or negative effect on a person. She stated that, in her opinion, the Applicant had a determination that he would never be like his father, and that as a result it was a positive factor, in that he would try to avoid that behaviour. She stated that the Applicant had confronted his father in relation to his conduct.
[6] The Applicant stated that his father is a TV broadcasting manager. He stated that his father had been violent towards his mother and brother. He stated that in particular, he remembered his mother being beaten up when he was 9 to 10 years old. The Applicant stated that his father had recently apologised to him, saying that he had made mistakes because he was too young when he married and started a family.
The Psychologist was shown various supplementary documents and stated that these documents did not alter the opinion in the Report.
The Psychologist was cross-examined in relation to the Applicant’s supportive social network, which, in the Psychologist’s opinion, was a factor that tends to reduce the Applicant’s risk of reoffending. Counsel for the Respondent put to her that the effect of that supportive social network could not lead to a reduction in the risk of reoffending in circumstances where the Applicant was already part of that supportive community and offended nonetheless. The Psychologist stated that she did not think that at the time of offending that the Applicant’s social support network was as entrenched or fixed as it was at the time of the Report or at the time that the Psychologist gave evidence.
The Psychologist provided two reasons for the Applicant’s offending: sexual frustration and what she described as a brief period of “identity confusion”. She stated that in her opinion, the Applicant’s former employer had influenced him and coached him to form relationships with women. The Psychologist described the Applicant’s behaviour as involving boundary confusion, being influenced by what his employer had told him.
The Psychologist in her evidence reaffirmed her opinion that the Applicant presented only two of over 20 “historical risk factors” and did not present any “dynamic factors”. She stated that these factors were the best predictor of future behaviour.
The Psychologist during her evidence was referred to an Assessment Outcome Report, dated 7 March 2017, which assessed the Applicant’s suitability for a CCO and stated that the Community Correctional Services “has assessed the accused as being medium risk of reoffending according to the Level of Service Risk Assessment Tool”. The Psychologist stated that the report ought be discounted as such reports are prepared in a day and for a targeted and limited purpose. She stated that in her opinion the 7 March 2017 report was not a properly considered psychologist report.
Importantly, the Psychologist gave evidence that in preparing reports such as the Report that she only ever selected from one of three risks: high, medium or low.
The Report provided in summary and conclusion:
This man is considered to be low risk of sexual re-offence and no risk of any other offending behaviour. Other than the historical factors of offence that create a low risk profile, the only other factor is that he has some very slight minimization of the gravity of the offending and this can be easily addressed in a post release counselling program. This does not need to be to the extent of a sex offender program.
When asked, the Psychologist stated that her Report could not have resulted in an assessment that was lower than “low risk” but that in considering the spectrum of risk embraced by the envelope of behaviour contained in the category that she opined was “low risk”, that she was of the opinion that the Applicant was at the bottom part of that category and that he was a “low risk tending towards non-existent”.
I accept the Psychologist’s evidence that, because of the existence of the Applicant’s prior offending, it cannot be said that there is “no” risk of reoffending. In the words of the Psychologist, this meant that she could only, at an absolute minimum, opine that the Applicant was a low risk of reoffending.
I take into account the Psychologist’s conclusion and opinion that the Applicant’s risk of reoffending is low tending towards non-existent. For the purposes of the question posed, that is, whether the Applicant fails the character test because there is a risk that if allowed to remain in Australia that he would future engage in criminal conduct, I find that the Psychologist’s opinion is evidence that weighs significantly in the Applicant’s favour.
The Applicant’s failure to properly perform the CCO
The Respondent in his written submissions stated that it was not apparent that the Applicant had taken his first CCO especially seriously. He stated that the report on the Applicant’s compliance was not especially positive.
The Applicant was questioned in relation to the allegation that he had not communicated his lack of availability to the managers overseeing the graffiti removal, which was work that he was obliged to do as a condition of his CCO. The Applicant stated that he had informed the managers that he would not be available on each occasion. The Applicant also provided emails showing that he had sought approval for and had notified the managers of his absences.[7] The Psychologist stated that it was common in her experience for there to be miscommunications such as those raised by the Applicant.
[7] See the emails to his case manager: T documents 289 - 290.
I accept the Psychologist’s evidence as an expert with decades of experience in this area. I also accept the documentary evidence provided by the Applicant. As a result, I find that there is insufficient to no evidence that the Applicant failed to properly perform the CCO, and consequently this is not a circumstance to which I attribute any weight.
3. Summary
I find that the January and March 2016 offending is serious because it involves sexual offending. In particular, the March offending was more serious as it shows an escalation of the Applicant’s behaviour because it was planned and deceitful. That escalation is relevant to an assessment of risk as it tends to show that the Applicant has embarked on a course of offending. That said, the Applicant only offended in a similar manner twice and, as such, it cannot be said that he engaged in a “course” of offending.
I find that the Applicant’s apparent insight into the reasons for his offending was poor as he was not able to offer an adequate explanation. However, I find that his remorse is real and significant; I am convinced of that mostly because of the evidence of others who have witnessed his deep remorse and regret. The Applicant suffers from a deep regret of his actions, mostly in relation to his embarrassment and the suffering he has caused to those closest to him. The Applicant’s remorse shows a maturity and acceptance and confrontation of his offending. The Applicant’s remorse and regret tend to show that he will not re-offend because he is more likely to identify and contain his impulses.
I find that the Applicant has a committed and stable social network because of the evidence given by his wife and her family. The Applicant’s wife is a significant figure in his life and has provided him with consistent support throughout what has been an extremely difficult separation. The father-in-law has also provided, and presents, the Applicant with an adult figure to emulate and a person who provides him with counsel. The Church also presents a social network that assists the Applicant. Overall, that social network supports a finding that the Applicant will not re-offend as it acts as a monitor for his behaviour and provides him with a set of norms that are acceptable in the Australian community.
I find that the effect of the Applicant’s detention has been profound. That effect is obviously most pronounced in relation to the Applicant, but it has also been extremely damaging to his wife. I also accept the terrible effect upon the rest of the family. The effect of the Applicant’s conduct upon him and others tends to support a conclusion that the Applicant will not re-offend.
The expert Report, insofar as the Psychologist concludes that the Applicant poses a low risk tending towards non-existent, supports a finding that the Applicant is not a risk of re-offending in the manner specified in s 501(6)(d)(i) of the Act.
On the basis of the evidence and the findings set out above, I am satisfied that the Applicant passes the character test as defined by s 501(6)(d)(i) of the Act. Put another way, I am not satisfied that the Applicant fails the character test because, in the event the Applicant were allowed to enter or to remain in Australia, there is a risk that the Applicant would engage in criminal conduct in Australia.
B. Exercise of the discretion pursuant to s 501(1) of the Act
As I have found that the Applicant does not fail the character test, the discretion as to whether to grant the visa notwithstanding failure of the character test does not arise. Even if I had found that the Applicant fails the character test, then I would have exercised the discretion to not refuse the visa. Although not necessary, I turn to consider the discretion.
Part B of Direction No. 65 sets out three primary considerations and a number of other considerations.
1. Primary considerations
The Direction contains three primary considerations that must be taken into account being the:
(a)protection of the Australian community from criminal or other serious conduct;
(b)best interests of minor children in Australia; and
(c)expectations of the Australian community.[8]
Protection of the Australian community
[8] Paragraph 11(1).
The Direction provides that decision-makers should have regard to the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.[9] In relation to this primary consideration, decision-makers should have regard to the:
(a)nature and seriousness of the non-citizen’s conduct to date;[10] and
(b)risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[11]
[9] Paragraph 11.1.1(1).
[10] Paragraph 11.1.1.
[11] Paragraph 11.1.2.
Nature and seriousness of the conduct to date: paragraph 11.1.1(1) of the Direction provides:
In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:
a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
d) The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
e) The sentence imposed by the courts for a crime or crimes;
f) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
g) The cumulative effect of repeated offending;
h) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
i) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
In assessing, particular offences, the Tribunal may not impugn a sentence or put in issue the propriety of a conviction or the fairness of the trial.[12] The Tribunal may, however, examine the circumstances surrounding the commission of the relevant offence for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant’s criminal conduct: Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 at 358.[13]
[12] Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at 240.
[13] See also Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354, Fisher and Lockhart JJ, at 358, 359-60; and Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at 244-245.
Risk to the Australian community: in terms of the risk to the community, Direction No. 65 provides at paragraph 11.1.2(1):
In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.
Paragraph 11.1.2(3) provides that in considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
ii.evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
iii.the duration of the intended stay in Australia.
Nature of the harm should he engage in further criminal activity: I find that the harm to individuals, groups or institutions in the Australian community, should the Applicant re-offend, is serious notwithstanding that the criminal conduct is at the lower end of sexual offences. Sexual offences are singled out in the Direction as serious.
Likelihood of re-offending: As I have found that the Applicant poses no more than a minimal or remote chance of re-offending, this circumstance is of little to no weight against the Applicant.
The best interests of minor children
The Applicant in his submissions referred to the evidence of his niece as a circumstance that weighs in favour of granting the visa as it is the best interests of his niece that he remain in Australia.
A second sister-in-law provided a statement, dated 3 October 2018, and gave evidence at the hearing. She referred to and relied upon to two letters of support, dated 31 January 2018 and 23 July 2017.
The second sister-in-law is 25 years old and is employed as a retail store manager. The sister-in-law gave evidence of the relationship between the Applicant and her two-year-old daughter. She stated that the daughter had been impacted upon by the absence of the Applicant. She stated that when the Applicant was initially detained in Melbourne that she would take her daughter to visit him weekly and that since his return to detention in Melbourne that she takes her daughter to visit the Applicant every fortnight.
The second sister-in-law stated that the Applicant was a valuable presence in her daughter’s life as an uncle and also as an adult who is capable of teaching the daughter piano and a second language.
The Respondent pointed to the very young age of the niece at the time of the Applicant’s interaction with her and at the time of the hearing as factors that tended to diminish or extinguish the possibility of any weight being given to the best interests of minor children.
The parties warned me of the consequences of not properly considering the best interests of the niece. I presume that is because of decisions such as Lei Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133.
I accept that the best interests of the niece could be a factor that weighs in favour of the Applicant. I also accept the evidence of the second sister-in-law of her belief of the importance of the relationship with the Applicant’s niece. However, I agree with the Respondent that it could not be said that the best interests of the niece is a factor of more than a negligible or immaterial weight given her age at the time of the Applicant’s interaction with here and at the time of the hearing. If the niece were the Applicant’s child, this consideration would be a significant factor weighing in favour of the grant of a visa.
Expectations of the Australian community
In relation to the primary consideration regarding the expectations of the Australian community, Direction No. 65 provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.[14]
[14] Paragraph 11.3(1).
Paragraph 6.3, which sets out the principles that inform the decision, by application of paragraph 7, to refuse to grant a visa or not contains, at paragraph 6.3(2), a principle directed to the expectations of the Australian community:
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.
Also relevant in the circumstances of this case are the following principles from paragraph 6.3:
(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.
The Minister has provided a statement of the government’s views as to the expectations of the Australian community. The views of the Australian community that I must take into account are those of members of that community who are informed, reasonable, fair-minded and mature.[15] I am of the view that those members, to the extent that they are informed, have knowledge of all of an applicant’s relevant circumstances.[16]
[15] See my earlier decision: Cao and Minister for Home Affairs (Migration) [2018] AATA 1261, [162]-[168]. See also discussion of the character of the community expectations in Direction No. 65: YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [31] and [76], per Mortimer J; and Ayache and Minister for Immigration and Border Protection [2018] AATA 310 at [65]-[66], per Forgie DP. See also Respondent’s Statement of Issues, Facts and Contentions at [76].
[16] The fact that the Australian community referred to is expected to have specific knowledge of an applicant is a natural consequence of the words in paragraph 11.3(1) of Direction No. 65 which states, among other things, that visa refusal “may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa.”
I would have found, had I not found that the Applicant was of good character, that the Australian community, properly apprised of all of the facts, including the details of offending and surrounding circumstances, and particularly knowing of the Applicant’s deep and significant social support network and family, would not expect that the Applicant be denied a visa. It is also relevant that the offending, while serious because it is sexual, is at the lower end of the offending spectrum; along with the finding that the Applicant poses only a minimal risk of reoffending.
2. Other considerations
Direction No. 65 provides for other considerations in addition to the primary considerations. The Direction states:
In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a) International non-refoulement obligations;
b) Impact on family members;
c) Impact on victims;
d) Impact on Australian business interests.[17]
International non-refoulement obligations
[17] Paragraph 12(1).
The Respondent accepts that the Applicant has been found to be a refugee or, more precisely, that it has been found that Australia owes him protection obligations.
The parties made submissions and provided authorities in respect of s 197C of the Act and the duty under s 198 to remove an unlawful citizen non-citizen as soon as reasonably practicable. Much of that argument was directed towards whether the Applicant would have been indefinitely detained if the Tribunal were to affirm the decision.
Further, the Applicant made submissions primarily on the basis that the non-refoulement obligation coupled with the prospect of being returned to Iran or of indefinite detention is a fact that must result in the Applicant being granted the visa.
It is not necessary for me to decide the question of the interpretation of the Act posed by the parties. That said, it is undeniable that the obligation that Australia has towards the Applicant is a significant factor weighing in the Applicant’s favour because either indefinite detention or removal to Iran would be extremely injurious to the Applicant and deeply traumatising for his family.
Impact on family members
Direction No. 65 provides, at paragraph 12.2(1), in relation to the impact on family members:
Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely[18]
[18] Paragraph 14.2.
Had I not determined the application on the basis of good character, I would have found that the impact on family members of refusal is both real and significant and is a factor that weighs heavily in the Applicant’s favour.
Overall and on the question of discretion, on balance, were I to have found that the Applicant failed the character test, I would have set aside the Respondent’s decision and remitted the decision with a direction that the discretion in s 501(1) be exercised in the Applicant’s favour.
IV. CONCLUSION
The Tribunal sets aside the decision under review and remits the decision to the Respondent with the finding that the Applicant passes the character test under section 501(1) of the Act.
184. I certify that the preceding 183 (one-hundred-and-eighty-three) paragraphs are a true copy of the written reasons for the decision of Senior Member R. Pintos-Lopez
.......................[sgd].................................................
Associate
Dated: 22 November 2018
Date of hearing: 23 October 2018 Counsel for the Applicant: Mr Matthew Kenneally Solicitors for the Applicant: Carina Ford Immigration Lawyers Counsel for the Respondent:
Solicitors for the Respondent:
Mr Christopher Tran
Sparke Helmore
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