Healy and Minister for Home Affairs (Migration)

Healy and Minister for Home Affairs (Migration) [2018] AATA 1051 (13 April 2018)
Division:GENERAL DIVISION
File Number(s):2018/0401
Re:Daniel Healy
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Member C Edwardes
Date:13 April 2018
Place:Perth

The Tribunal sets aside the decision under review and in substitution decides that the Applicant should not be refused a Skilled (Residence)(Class VB) visa under subsection 501(1) of the Migration Act 1958.
........................................................................
Member C Edwardes
CATCHWORDS
MIGRATION – decision to refuse a visa – failure to pass character test – where applicant has substantial criminal record – South Africa -- culpable homicide (motor vehicle accident) – primary considerations weigh in favour of granting visa – risk of reoffending low – best interests of minor children – expectations of the Australian community – other considerations – decision under review is set aside.
LEGISLATION
Migration Act 1958 (Cth) – s 499 – s 499(2A) – s 500(1)(b) – s 501(1) – s 501(6) – s 501(6)(c) – s 501(7) – s 501CA
Administrative Appeals Tribunal Act 1975 (Cth) para 43(1)(c)(i)
CASES
Labi and Minister for Immigration and Border Protection [2016] AATA 316
Rokobatini v Minister for Immigration and Multicultural Affairs (1990) 90 FCR 583
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA – para 6.1 – para 6.2 – para 6.3 – para 7(1) – para 8 – para 11.1(1) – para 11.1.1(1) – para 11.1.2 – para 11.2(4) – para 11.3(1) – para 12(1)
REASONS FOR DECISION
Member C Edwardes
13 April 2018
THE APPLICATION

This is an application for the review of a decision by a delegate of the Respondent (Minister) under subsection 501(1) of the Migration Act 1958 (the Act) to refuse to grant the Applicant a Skilled (Residence) (Class VB) (the visa) (G5 87) (R1). The decision of the delegate to refuse to grant the Applicant the visa was communicated to the Applicant on 23 January 2018 (G5 87) (R1). The Applicant was taken into Yongah Hill Detention Centre and subsequently lodged this application on 30 January 2018. (G2 3)(R1)
The application for review is made under subsection 500(1)(b) of the Act which allows applications to be made to this tribunal (the Tribunal) for review of a decision of a delegate of the Minister under subsection 501(1) of the Act. The Tribunal is satisfied that it has jurisdiction to review the delegate’s decision.
The application was heard by the Tribunal on 9 April 2018. The Applicant was represented by Ms Alice Graziotti of Estrin Saul Lawyers and the Respondent was represented by Ms Elle Tattersall of Sparke Helmore Lawyers.
ISSUES FOR DETERMINATION
Pursuant to subsection 501(1) of the Act, the Applicant’s application for the visa was refused by the delegate of the Minister on the ground that the delegate was not satisfied that the Applicant passed the character test stipulated under the Act. The issues for determination by the Tribunal are whether:
(a)the Applicant passes the character test under the Act; and
(b)the Tribunal ought to exercise the discretion under subsection 501(1) of the Act to refuse to grant the visa, or not to refuse to grant the visa.
BACKGROUND
The Applicant is a citizen of South Africa. The Applicant arrived in Australia on 2 September 2013 after being granted a Skilled Regional (subclass 489) visa. (A20 2)
On 2 November 2015 the Applicant lodged an application for a Skilled (Residence) (Class VB) (subclass 887) visa. His Temporary visa expired on 2 September 2017 and he was granted a Bridging visa A until the determination of his application. (A20 2)
On 29 November 2017 the Minister’s delegate refused to grant the visa and the Applicant was advised in the following terms:
“…. After careful consideration of your response and the matters listed in the Notice, a delegate of the Minister decided on 29 November 2017 to refuse to grant you a visa under subsection 501(1) of the Migration Act.
The particular grounds of subsection 501(6) under which you did not satisfy a of the Minister that you pass the character test is
subsection 501(6)(a): the person has a substantial criminal record (as defined by subsection 501(7))
Under subsection 501(7)(c), a person will have a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.” (G5 87-8)
History of relevant conduct
The details of all of the Applicant’s convictions are set out below:
·On 30 April 1997 the Applicant was convicted in a court in South Africa of culpable homicide – motor vehicle accident. He was sentenced to “R3000 or one year imprisonment plus a further 18 months imprisonment which is conditionally suspended for four years.” His driver licence was suspended for 6 months. The Applicant paid the fine of 3000 rand.
·On 3 February 1995 the Applicant was convicted in South Africa of driving a motor vehicle whilst under the influence of intoxicating liquor. He received a penalty of “R1 000 or 6 months imprisonment of which R500 or 3 months imprisonment is conditionally suspended for 4 years.” The applicant paid the fine. (G8 114) (R1)
·On 20 August 2014 the Applicant was convicted in the Bunbury Magistrates Court in Western Australia of exceeding .08 grams of alcohol per 100 millilitres of blood whilst driving. He was fined $750 and had his licence disqualified for 9 months. (G7 112) (R1)
LEGISLATIVE FRAMEWORK
Subsection 501(1) of the Act is as follows:
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
Relevantly, subsection 501(6) of the Act is as follows:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7));…
Relevantly, subsection 501(7) of the Act is as follows:
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or…
Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, if the directions are about the performance of those functions or the exercise of those powers. Subsection 499(2A) of the Act mandates that a person or body must comply with the directions. The Tribunal is such a body and accordingly must comply with any relevant direction when exercising the discretion under subsection 501(1) of the Act (Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583).
Under section 499 of the Act, the Minister has given written directions to the Tribunal, namely “Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 65). That the Tribunal must comply with.
Paragraph 6.1 of Direction 65 sets out the objectives of the Act, with the following relevant to the Applicant’s case:
6.1 Objectives
1The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
2Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test…Where the discretion to refuse to grant or cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
3…
4The 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 65 provides:
6.2 General Guidance
1The 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.
3The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
The “principles” referred to in the General Guidance (as set out above) are set out in paragraph 6.3 of Direction 65 as follows:
6.3 Principles
1Australia 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.
2The 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.
3A 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.
4In 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.
5Australia 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.
6Australia 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.
7The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1) of Direction 65 sets out how the discretion under subsection 501(1) to refuse the grant of a visa is to be exercised:
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
(b)….
Paragraph 8 of Direction 65 further states:
8. Taking the relevant considerations into account
1Decision-makers must take into account the primary and other considerations relevant to the individual case…
2In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
3Both 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.
4Primary considerations should generally be given more weight than the other considerations.
5One or more primary considerations may outweigh other primary considerations.
Part B of Direction 65 (paragraphs 11 and 12) sets out considerations that are relevant when deciding whether to refuse a non-citizen’s visa application.
EVIDENCE
The Tribunal received the following evidence:
·Exhibit A1 – Email enclosing documents attached to Respondent’s notice of visa refusal dated 2 February 2018.
·Exhibit A2 – Index – Applicant’s Bundle of Evidence dated 9 March 2018.
·Exhibit A3 – Witness statement of Daniel Healy dated 9 March 2018.
·Exhibit A4 – Witness statement of Magdalena Healy dated 9 March 2018.
·Exhibit A5 – Witness statement of Annerie Naude dated 8 March 2018.
·Exhibit A6 – Witness statement of Mark Naude dated 7 March 2018.
·Exhibit A7 – Draft witness statement of Peter Clark undated.
·Exhibit A8 – Letter from Douglas Hatchett dated 8 March 2018.
·Exhibit A9 – Psychological report from Mercurio Cicchini dated 6 March 2018.
·Exhibit A10 – Character reference from Austin Dignan dated 6 March 2018.
·Exhibit A11 – History for Court – Criminal and Traffic dated 27 February 2018.
·Exhibit A12 – Prosecution Notice and written plea dated 3 July 2014.
·Exhibit A13 – Letter from Magistrate’s Court – East London dated 13 April 2012.
·Exhibit A14 – Letter from Department of Justice (Queenstown) stamped 12 April 2012.
·Exhibit A15 – Crime administration system extract and note dated 25 January 2011.
·Exhibit A16 – Letter from Rev. J van Rensburg undated.
·Exhibit A17 – Letter from MJ Allam dated 24 April 2013.
·Exhibit A18 – Letter from Dora Nell dated 9 December 2012.
·Exhibit A19 – Letter from LG Kriedemann dated 1 January 2011.
·Exhibit A20 – Statement of Facts, Issues and Contentions (SOFIC) dated 9 March 2018.
·Exhibit A21- Hearing certificate with list of witnesses dated 12 March 2018.
·Exhibit A22- Signed statement of Daniel Healy dated 29 March 2018
·Exhibit A23 – Summons material from Dr Hatchett dated 29 March 2018
·Exhibit R1 – G1-G18 (pages 1-130) documents received 14 February 2018.
·Exhibit R2 – Statement of Facts Issues and Contentions (SOFIC) dated 23 March 2018.
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.
At the commencement of the hearing the Applicant drew to the attention of the Tribunal an amendment at paragraph 114 (A20) of his submission – reference to the Applicant’s son-in-law should in fact be referenced to the Applicant’s mother-in-law
SHOULD THE TRIBUNAL EXERCISE THE DISCRETION UNDER S 501(1) OF THE ACT TO REFUSE TO GRANT THE VISA?
It is clear that the Applicant does not pass the character test under subsection 501(6) of the Act. In April 1997, the Applicant was convicted of culpable homicide – motor vehicle accident in South Africa. He was fined R3000 or one year imprisonment plus a further 18 months imprisonment conditionally suspended for four years. Subsection 501(6) of the Act provides that a person does not pass the character test if he has a “substantial criminal record.” Paragraph 501(7)(c) of the Act provides that a person has a substantial criminal record if he has been sentenced to a term of imprisonment of 12 months or more.
However, as mentioned in paragraph 12 of this decision, pursuant to subsection 499(2A) of the Act, the Tribunal must comply with written directions that are stipulated in Direction 65 in considering whether or not to refuse the grant of the applicant’s visa.
PRIMARY CONSIDERATIONS
Pursuant to paragraph 11.1(1) of Direction 65, the following are “primary considerations” that the Tribunal must take into account in deciding whether to refuse to grant the visa:
a)protection of the Australian community from criminal or other serious conduct;
b)the best interests of minor children in Australia; and
c)expectations of the Australian community.
(a) Protection of the Australian Community
Paragraph 11.1(1) of Direction 65 provides that when considering the protection of the Australian community, 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. There is a low tolerance for visa applicants who have previously engaged in criminal and other serious conduct. Decision-makers are also to give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(Emphasis added)
11.1.1Nature and seriousness of the conduct
Paragraph 11.1.1(1) of Direction 65 provides a list of factors to which decision-makers must have regard in considering the nature and seriousness of a person's criminal conduct. Relevantly, these include:
11.1.1 The nature and seriousness of the conduct
1In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
(b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c)…
(d)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
(e)The sentence imposed by the court 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)…
The Applicant’s relevant conduct

In the Respondent’s SOFIC the Minister contends that the correct and preferable decision is to exercise the discretion in subsection 501(1) to refuse to grant the applicant a visa. In particular, it is the Minister’s position that the principles and considerations in Ministerial Direction No. 65 weigh in favour of refusing the applicant a visa.” (R2 1)
The Respondent’s contentions include the following:
21. The applicant concedes that he does not pass the character test as a result of his 1997 conviction for ‘culpable homicide – motor vehicle accident.’ (R2 5)
The circumstances of that accident are described accordingly:
“38. In relation to the 1997 conviction, the Applicant has no memory of the accident that caused him to go into a coma for two days. His version of events is based on the eyewitness testimony of a driver who was driving behind him at the time the accident occurred and the evidence presented at his trial. The Applicant states:
On the 3rd August 1995 myself and some friends went after work from Queenstown to East London, which is 168km away, to visit some friends there. It was around 8pm when we left the city. On our way out, I was driving past a service station when a woman driver drove out of the service station onto the road (into my lane), failing to stop.
As I was only 20 years old and wasn’t as experienced as a 40-year-old driver, I swerved to avoid a collision. I lost control of my car and it hit a concrete pillar in front of a restaurant that was only a foot away from the road.
I woke up in ICU two days later and was then notified that one of my friends passed away in the accident. I had head injuries and an injury to my back and was released from hospital about three days after I woke up from the coma. To this day I have no recollection whatsoever of the accident and my account of it is based on an eyewitness account that was presented at trial.
The South African law at that time stated that I as the driver had to be charged. I was charged with dangerous/negligent driving (I do not remember the exact charge) and with culpable homicide. On the 30 April 1997 after a two-year court case I was found not guilty of dangerous or negligent driving. I was instead found guilty of culpable homicide as I was the driver of a car that was involved in an accident from which someone died. There was no fault or negligence proven.
I couldn’t defend myself in the case as I have until today no recollection of the accident. I went to several clinical psychologists and even tried hypnosis to recall the accident so I could provide a statement to the court and deal with the trauma the accident had caused.
…The accident was totally unavoidable, and it took me years to forgive myself for my friend who passed away. She was the girlfriend of another friend of mine who was in the car with us. He never blamed me for her death and viewed the accident as totally unavoidable. During the trial he also gave evidence that he had no recollection of the event and only remembered the car swerving.
39. No alcohol or drugs were found in the Applicant’s system immediately following the accident, and he was not convicted of reckless or negligent driving. The accident should be viewed by the Tribunal as nothing more than that – a tragic accident in which the Applicant did his best to avoid a collision and to avoid injury to himself and his passengers. The loss of control of his car, resulting in the death of one of his passengers (the girlfriend of his friend who was also a passenger), was not the result of any reckless or dangerous activity and is something that could and does happen to even the most careful of drivers.” (A20 5)
As a result of the incident on 3 August 1995, the Applicant was sentenced to R3,000 or one year imprisonment (plus a further 18 months imprisonment which was conditionally suspended for six months) for the offence of culpable homicide involving a motor vehicle accident which occurred in 1995. He paid the fine and spent no time in prison. (A20 1-2)
In 1994 the Applicant, then 20 years old was charged with a drink driving offence. The circumstances of that offence involved the following:
“In October/November 1994 I was 20 years old. One night I went out with some friends to watch rugby. We had a couple of drinks. On my way home I was stopped at a RBT. I blew over the limit and was taken to the police station for a statement. As I pleaded guilty of having drinks the case went to the court on the 3rd February 1995. There was no secondary test done as I admitted I was drinking. I was fined R500 (approx. AUD 50) or 3 months’ imprisonment. I paid the fine.” (A20 5)
In 2014, twenty years later, the Applicant was charged with exceeding .08 grams of alcohol per 100 millilitres of blood whilst driving. The circumstances of that charge were:
“On the night of the 27 June 2014 I went out for drinks with some friends from work. Around 11pm that evening I wasn’t feeling well and felt like someone put something in my drink. I walked to the taxi rank to find there was no taxis there. As Bunbury is still a regional town I thought I would just drive home as I stayed 2km away. I didn’t think I was over the limit. I know I told myself 20 years back that I would never drive again if I have a drink – I did this because I did not believe I was over the limit, was feeling so unwell and just wanted to get home. Thinking back on it now, I think I was also struggling with being in a new country.
On my way home I was stopped by a RBT. I blew over the limit and was taken to the police station for a secondary test. I was summoned to court where I pleaded guilty at the first opportunity and was fined $750. My driver’s licence was suspended for nine months. I paid the fine and abided by all the conditions of my licence. I had no hesitation about pleading guilty because I am one to take responsibility for my actions.” (A20)
In considering the factors identified in paragraph 11.1.1(1) of Direction 65 relating to the nature and seriousness of the Applicant’s offending conduct, the Tribunal finds that:
·the Applicant’s offences and conduct did not involve violent and/or sexual crimes;
·the Applicant has not committed crimes against vulnerable members of the community;
·the crime was not committed while the Applicant was in immigration detention; during an escape from immigration detention; or after an escape from immigration detention;
·the Applicant’s criminal record shows that subsequent to his conviction in 1997, and prior to the Applicant’s drinking and driving conviction in 2014, the Applicant did not have any other criminal history in Australia;
·the sentence imposed by the Court in South Africa for the offence of culpable homicide indicate the special circumstances (lack of intention) for which the Applicant was convicted;
·the Applicant’s criminal record indicates that he is not a frequent offender;
·the cumulative effect of the Applicant’s offending, indicates that whilst the Applicant has committed one drink driving offence in Australia, and one drink driving offence in South Africa 20 years prior to committing the drink driving offence in Australia, he has a low risk of reoffending;
·the Applicant has not provided false or misleading evidence or statements to the Department in relation to his application for a visa.
When cross-examined at the hearing the Applicant, the Tribunal observed the following:
In relation to the offence of culpable homicide
·The Applicant:
ocame across as sincere and truly remorseful about the circumstances surrounding the offence of culpable homicide;
owas still suffering from the death of his passenger friend on the day the accident took place. He broke down on a number of occasions whilst giving evidence;
owished that he had died on the day of the accident rather than his friend and passenger – “I wish I had died…”
ohas no recollection of the events that led to the accident and tried various treatments to unravel the events that led to the accident;
osaid he never intended for the accident to occur;
orelies on the evidence of a Doctor following his vehicle on the day to provide a picture on how the accident unfolded.
In relation to the Applicant’s life in Australia
·The Applicant:
osold all of his assets in South Africa when he decided to come to Australia in 2013;
ois a cabinet maker by trade and has resided in the regional City of Bunbury, Western Australia;
ois very close to his family in Australia and rings his mother and visits on a regular basis and the impact in particular on his mother (62 years old) and grandmother (93 years old) would be significant.
In relation to the drinking and driving offences:
·The Applicant
ohas decided to stop drinking alcohol since his last offence in 2014;
oviews his drink driving offences as being “very silly to drive and a stupid mistake;”
oappreciates the seriousness of the offences that he has committed;
oclaims he is not a reoffender;
oaccepts that on 20 August 2014 he could have walked home rather than drive;
ostates that on 20 August 2014 drink driving offence occurred as a result of a break up with his de facto partner;
oclaims he is a moderate drinker, but recognises that he turned to alcohol on the evening of 20 August 2014 when his personal situations became difficult and this is why he has decided to abstain from alcohol permanently and decided to seek medical assistance.
The Respondent contends, and the Tribunal acknowledges that some of the Applicant’s evidence lacks independent verification. The Tribunal however was able to observe the Applicant in the hearing, and concluded that he gave truthful evidence under oath. The Tribunal also finds that whilst evidence pertaining to the Applicant’s conviction of culpable homicide lacks documentation arising from official records in South Africa, the Tribunal however is only able to make a decision from all of the information that is available before it. This includes the Respondent and Applicant’s submissions, expert evidence, and testimonies from various witnesses brought before the Tribunal.
11.1.2 The risk to the Australian community should further offences be committed.
Paragraph 11.1.2 of Direction 65 sets out the principles and factors to which the Tribunal should have regard in assessing whether a non-citizen represents an unacceptable risk of harm to members of the Australian community. It provides:
11.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
1In 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.
2In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
3In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)     information and evidence from independent authoritative sources on the likelihood of the non-citizen re-offending; and
(ii)    evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that the decision should not be delayed in order for rehabilitative courses to be undertaken); and
(iii)   the duration of the intended stay in Australia.
4Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.
In the Respondent’s SOFIC the following contentions are made:
“29. In considering the risk to the Australian community, the Tribunal must have regard to (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 such conduct in the future.
30. Taking these in turn, firstly, the nature of the harm to victims if the applicant were to reoffend in the future is very serious and could involve physical, financial and psychological harm to members of the community.
31. Secondly, the applicant has not provided any independent evidence of engagement in rehabilitation or education programs and the report of Mr Cicchini suggests that the risk of the applicant re-offending is not absent.
32. The risk of harm must also be considered in the context of the applicant applying for a permanent visa (paragraph 11.1.2(4)).
33. Accordingly, the Minister contends that this consideration weighs in favour of refusal.” (R1 1-10)
The Tribunal notes the following comments at paragraph 2 of the Applicant’s statement of reasons for refusal of his visa application dated 29 November 2017. “Having considered all available information detailed above, including Mr Healy’s criminal history, efforts at rehabilitation, the changes he has made to his life, I find Mr Healy to be an ongoing risk of reoffending, albeit low.” (A9 33)
This assessment is re-enforced by the Clinical Psychologist report of Mercurio Cicchini (Mr Cicchini) dated 6 March 2018. Mr Cicchini stated:
…the fact that two incidents exist when Mr Healy broke the law by driving whilst intoxicated raises questions as to whether a problem exists with regard to chronic or problematical use of alcohol, which would lead to an increased probability of that type of offending behaviour recurring. Notwithstanding the two occasions of drink-driving, no evidence is present to suggest an unresolved addiction to, or reliance on, alcohol…
In my opinion, Mr Healy manifests genuine pro-social values and attitudes of caring for, and respecting, others, which in two instances over his lifetime have been compromised by convictions of driving whilst affected by alcohol. In the context of the histories and behaviours of thousands of offenders assessed by me in the WA justice system, I consider Mr Healy’s two driving whilst intoxicated transgressions as not being indicative of a chronic disrespect of legal obligations and responsibilities, but more as lapses in commitment which he can rectify. The incentive of being able to live in Australia, I believe, will help motivate his total rehabilitation in that area.
...I would consider Mr Healy’s risk of reoffending (via traffic violations) to be low, but not entirely absent. The risk of other antisocial behaviours involving violence or dishonesty is likely to be negligible and lower than that of the average citizen. (A9 33)
The Tribunal notes Mr Cicchini’s professional expertise and background. Mr Cicchini has worked within the Western Australian Justice system from 1987 to 2014. Mr Cicchini commenced as a psychologist in 1973. He specialised in conducting psychological assessments on generalist violent and sexual offenders for sentencing purposes for the Department of Corrective Services as an external contractor. Mr Cicchini has also published work in areas including psychopathy and crime. (A8 37)
Mr Cicchini stated in respect to the Applicant’s penalty for the offence of culpable homicide the following:
I have no knowledge of the application of judicial penalties in South Africa or other countries, but in WA a distinction exists between the penalties that a Court may determine in a particular case and the application or enactment of that penalty. Most importantly, a distinction exists between penalties of imprisonment that are applied, and those that are suspended, usually subject to the continuing good conduct of the offender.
My understanding is that penalties imposed generally reflect the nature and severity of the crime, in combination with factors particular to that case, such as prior offending history and future risk to the community. The fact that Mr Healy was not required to serve a prison sentence for the culpable homicide traffic conviction, but that the penalty was suspended, suggests to me that circumstances favourable to him were taken into consideration, including, possibly, a judgement that if released to the community he would not be a risk to the community. Furthermore, the fact that the imprisonment never occurred during the period in question indicates that Mr Healy’s performance in the community was satisfactory”... (A8 7)
Mr Cicchini has further stated:
I believe that a suspended term of imprisonment ought to be clearly recognised as being a lesser penalty that a prison sentence required to be served in custody. Mr Healy advised that to date he has never been inside a prison. He has had no deliberate association with peers who are antisocial or disrespectful of the law, and whilst in Western Australia has attempted to offer both his work skills and caring and considerate nature in helping others in the community. (A8 8)
There is no evidence that since the Applicant’s conviction in 2014 the Applicant has committed any other serious or traffic offences.
Under cross-examination Mr Cicchini stated the following:
·In his assessment of the Applicant, he took a full account of the Applicant’s history and information from records provided.
·He claimed that he was not an advocate for the Applicant, but his opinion and assessments of the Applicant were based on his professional credentials, and his 30 year experience working with offenders in criminal justice system.
·He claimed that the Department’s decision in denying the Applicant a visa was erroneous.
·He put the Applicant in the “low risk category” for reoffending in terms of drink driving offences.
·He could not say that the Applicant had ceased drinking, but he stood by the written psychological report that he made concerning the Applicant (A9)
The Tribunal recognises Mr Cicchini’s professional credentials as a registered clinical psychologist and as an experienced external contractor for the Department of Corrective Services (providing psychological assessments of persons). The Tribunal gives weight to evidence provided by Mr. Cicchini accordingly.
In terms of the Applicant’s conviction of culpable homicide in 1997, the Tribunal finds that there is no evidence before the Tribunal to show that he had drugs or alcohol in his system at the time of the accident. The Tribunal accepts the Applicant’s remorse in respect to the accident. The Tribunal also notes that the Applicant’s actions were unintentional. This is confirmed in the Applicant’s decision record dated 29 November 2017 and stating: “the offence of culpable homicide in 1995 was not of a deliberate violence…” (PG5 97)(R1).
The Tribunal does however have some concern relating to the other offences committed by the Applicant involving drink driving and will look at the totality of the offences in its determination. Whilst the Tribunal notes that the offences of drink driving are some 20 years apart, the Tribunal acknowledges that the Australian community has a very low tolerance for such offences.
Best interests of minor children

Paragraph 11.2(4) of Direction 65 sets out the factors the Tribunal must consider if relevant in considering the best interests of a child. They are:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is not existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that contact has, or will have, a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are any other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant was in a de facto relationship prior to being placed in detention. That relationship commenced in February 2014 and involved 2 of the de facto partner’s children. Evidence before the Tribunal indicates the Applicant supported the single mother and 2 children for the duration of that relationship. (P65 94)(R1)
In view of the separation in this relationship, the Tribunal affords no weight in considering the above paragraphs.
11.3 Expectations of the Australian community
Paragraph 11.3(1) of Direction No. 65 states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.
In analysing this primary consideration, the Tribunal again refers to the stated principles in paragraph 6.3 of Direction 65, in particular, the principles that:
·the Australian community expects the Australian Government to refuse to grant visas to non-citizens who commit serious crimes (paragraph 6.3(2));
·non-citizens who commit serious crimes, including crimes of a violent or sexual nature, should generally expect to be denied the privilege of coming to Australia (paragraph 6.3(3));
·in some circumstances if the offence were to be repeated the consequences would be so serious that any risk of similar conduct is unacceptable (paragraph 6.3(4)); and
·the length of time a non-citizen has been making a positive contribution to the community (paragraph 6.3(7)).
The Tribunal notes the statement of Deputy President McCabe in Labi and Minister for Immigration and Border Protection [2016] AATA 316 at [60]:
The Direction points out the Australian Community expects non-citizens will obey Australian laws while they remain in this country. But the Direction implicitly acknowledges the community is not completely intolerant of risk: rather, it will have regard to the nature of the character concerns or offences and make a reasonable judgment. In short, one can rely on the Australian community, when fully informed of the facts, to demonstrate some perspective and settle on an outcome that is proportionate.
The Respondent maintains the following:
“35. This primary consideration weighs in favour of refusal. The Direction indicates at paragraph 11.3(2) 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. It further notes that decision makers should have due regard to the government’s views in this respect.
36. The Minister also notes Principle 2, confirming the expectation of the Australian community that a person who commits serious crimes should have their visa application refused.
37. The Minister also notes Principle 5, confirming that 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 for a short period of time. In the present matter, the applicant has been in Australia for a short amount of time, committed an offence in Australia less than a year after returning following the grant of a Skilled Regional (Provisional) visa (subclass 489) and any contribution to the Australian community has been limited to employment.
38. The Minister also notes Principle 6, confirming that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
39. The Australian community would expect that the applicant, being a visa applicant who has committed a serious offence or otherwise engaged in serious conduct and has limited community engagement should be refused the visa.” (R2 7-8)
On the basis of the evidence before it, the Tribunal considers the Australian community understands that the risk of the Applicant to reoffending is at the low end of the scale of offending behaviour. The Tribunal in this case acknowledges the circumstances surrounding the primary offence of culpable homicide and it has come to the conclusion that whilst the offence resulted in the tragic death of a human being, there was no evidence before the Tribunal to suggest that the incident was a deliberate act on behalf of the Applicant. In the view of the Tribunal the offence resulted from a motor vehicle accident.
The Applicant according to his employer has made a significant contribution to his place of employment. He is a cabinet maker in the regional centre of Bunbury in Western Australia. His employer has stated the following:
I, Peter Clark, of 22 Wakefield Crescent, Australind in the state of Western Australia, Cabinet Maker, make the following statement:
1I am an Australian citizen and I have lived my whole life in Australia.
2Daniel has been employed by me as a cabinet maker for a period of approximately 2.5 years.
3I make this declaration with full knowledge of Daniel’s criminal and traffic history. I know about his two convictions for drink driving and the accident he was in 20 years ago.
4I believe Daniel is of good character and if I didn’t have my trust in him I would be unable to employ him. Daniel has been a very good employee since the first day he started working for me. He is always punctual and takes pride in the work we do.
5I have owned my business, Golden West Cabinets, for the last 27 years. I employ four people (including Daniel). The business focusses on new homes and renovations of old homes as well as some commercial projects. My business has suffered severe setbacks since Daniel has been detained as he makes up a quarter of my workforce. We are now behind on a number of projects.
6The business and our projects are based mostly in the Bunbury metro area. While working for me Daniel has assisted with the Boddington mine site refurbishment, St John of God Hospital in Bunbury (we continue to do a lot of maintenance work for St John’s), Bunbury Regional Hospital (contracted by the government) and numerous housing projects.
7I definitely believe that Daniel has made and would continue to make a positive contribution to regional Australia. Cabinet makers are extremely hard to find, and good cabinet makers are even harder to find. People with cabinet making skills should be retained as much as possible as there are not many people who go into this trade. As an example, I placed an ad in the paper looking to hire someone and I received only one applicant – and it was someone who had already worked for me years back.
8If Daniel is allowed to stay in Australia I will continue to offer him employment as he is a valued, loyal and committed worker. I hope Daniel has a chance to come back to work for me.
9I have been in the car with Daniel before and I have never experienced anything that would suggest to me that he is an unsafe driver or otherwise poses a risk to others on the road.
10I believe Daniel is very close to his mother and sister who live here in Western Australia and it would have a very negative impact on his family if he could not stay. (A6 25-26)
The Tribunal having been fully informed during the hearing, surrounding the circumstances of the Applicant’s offences, his capacity to accept responsibility and the remorse that he has demonstrated is of the view that the Australian community would accept the Applicant as a productive member of the Australian community.
Other Considerations
Paragraph 12(1) of Direction 65 provides:
12. Other considerations – visa applicants
1In 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.
No issues or concerns were identified by the Applicant which would give rise to non-refoulement obligations. Based on the evidence before the Tribunal, the only considerations pertaining to paragraph 12(1) of Direction 65 that may be relevant in the present case is the impact that the decision may have on the Applicant’s family members.
The Respondent makes the following contentions: (R1 9)
42. The applicant’s immediate family, including his sister, mother and grandmother reside in Australia. His mother and grandmother are not however Australian permanent residents.
43. Although it is open to the Tribunal to be satisfied that the applicant’s sister may suffer some emotional hardship in the event of the refusal, the Minister contends that this factor is not sufficiently compelling so as to outweigh the considerations weighing against the granting of the visa.
The Tribunal notes the following:
·the Tribunal notes until recently, the Applicant has been in a de facto relationship in Australia;
·the Applicant has no family in South Africa, other than a biological father who he has no connection with;
·the Applicant has no business interests in South Africa;
·the Applicant left South Africa 5 years ago;
·the Applicant’s mother and grandmother live in Western Australia;
·the Applicant’s sister is an Australian citizen and resides in Western Australia;
·the Applicant has 2 nephews (children of his sister and brother-in-law), who reside in Western Australia; and
·the Applicant regularly visits his family, travelling from Bunbury. (A2)
The Applicant’s family provided a number of witness statements:
The Applicant’s brother in law – Mark Naude (Mr Naude)
·Mr Naude stated:
o“Daniel is very close to his family and if he is unable to stay in Australia this will affect his family financially;” (A6 22)
othere would be a significant impact on the family should the Applicant be required to return to South Africa;
othat the Applicant had stopped drinking alcohol and had declined to drink alcoholic beverages when offered drinks;
othat the Applicant was hard worker and a good mentor to his apprentices;
othat the Applicant paid his taxes and contributed to the Australian community;
othat the Applicant had given up drinking alcohol in 2014.
oif Applicant was allowed to stay in Australia, the Applicant would have his full financial and emotional support.
othat he had no knowledge of the Applicant’s 2014 offence until the Applicant was placed in immigration detention. When asked why this was so, Mr Naude stated that said he thought the Applicant was embarrassed by his conviction, thus did not disclose it.
The Applicant’s sister – Annerie Naude (Ms Naude)
·Ms Naude stated:
o“Daniel moved to Australia in 2013 and this is definitely home for Daniel, there is nobody or nothing back in South Africa for Daniel... should Daniel be deported this will have a major impact on my whole family, including my mother and grandmother;” (A5 19-21)
othat the Applicant’s offence resulting in the death of a passenger had a huge impact on the Applicant, and it was something very difficult for him to overcome;
othat the 2014 conviction was a “wake- up call for him and he had stopped drinking since that time;”
othat if the Applicant was sent back to South Africa, this would have a significant impact on the family and her mother and grandmother. Ms Naude stated that if this were the case, her mother and grandmother would return to South Africa;
othat her mother had sold all her assets and cashed in her pension to come to Australia;
othat she was unaware of the Applicant’s 2014 drink driving offence until Mr Healy was placed in immigration detention;
·Ms Naude broke down many times as she spoke about the Applicant.
The Applicant’s mother (Ms Healy)
·Ms Healy stated:
o“Please don’t deport Daniel, I used my life savings to ensure Daniel, myself and my mother can come over to start a new healthy life… I cannot express the pain and suffering we are all feeling at this moment…” (A4 16-18)
othat she was a single mother.
othat she and her mother arrived in Australia, once they were sure that the Applicant was committed to Australia.
othat she had sold all her possessions in South Africa and cashed in her pension once she decided to migrate to Australia and call it home.
oshe was aware of the Applicant’s drink driving conviction in 2014.
othat if the Applicant was sent back to South Africa, it would be a disaster for the family as she and her mother were heavily reliant on him. It was stated that the Applicant called in regularly and phoned Ms Healy many times during the week.
o“We will leave Australia if he is sent back.”
·Ms Healy broke down as she recalled the circumstances around the culpable homicide offence.
The Tribunal places some weight to the above paragraphs; however the Tribunal notes that its primary concerns are particularly stipulated under Part A of Direction Number 65.
CONCLUSION
Relevant to exercising its discretion under subsection 501(1) of the Act and complying with Direction Number 65 under subsection 499(2A) of the Act, the Tribunal finds that the Applicant passes the character test. Particularly, the Tribunal notes, in relation to primary considerations that the Tribunal must take into account under Direction 65:
(a)the protection of the Australian community weighs heavily in favour of the Applicant being not being refused the grant of a visa. The nature and seriousness of the Applicant’s conduct and the likelihood of his re-offending pose a low risk to the Australian community;
(b)the best interests of minor children in Australia is not a consideration in this case; and
(c)Whilst the Applicant has been convicted of the offences mentioned in the above paragraphs, the Tribunal finds, taking into account all evidence before it, that the Applicant has a low risk of committing further offences of a serious nature, and that the Applicant’s demeanour during the hearing, and character, as provided by evidence before the Tribunal, does not indicate that the Applicant is a person that will exhibit chronic disrespect of legal obligations and responsibility in Australia. The Tribunal finds that this assessment satisfies expectations of the Australian community. Relevantly, being that non-citizens obey Australian law while in Australia.
DECISION
For the reasons set out above pursuant to paragraph 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution decides that the Applicant should not be refused a Skilled (Residence)(Class VB) visa under subsection 501(1) of the Act.

I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

........[sgd]................................................................
Associate
Dated: 13 April 2018

Date of hearing: 9 April 2018

Solicitors for the Applicant: Alice Graziotti

Solicitors for the Respondent: Daphne Jones-Bolla

[2018] AATA 1051

13 April 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Natural Justice

Date of hearing:	9 April 2018
Solicitors for the Applicant:	Alice Graziotti
Solicitors for the Respondent:	Daphne Jones-Bolla