HMYH and Minister for Home Affairs (Migration)
[2018] AATA 1868
•27 June 2018
HMYH and Minister for Home Affairs (Migration) [2018] AATA 1868 (27 June 2018)
Division:GENERAL DIVISION
File Number: 2018/1859
Re:HMYH
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Brigadier A G Warner, Member
Date:27 June 2018
Place:Perth
The decision under review is affirmed.
......[sgd]..................................................................
Brigadier A G Warner, Member
CATCHWORDS
IMMIGRATION – section 501 visa refusal – whether applicant passes character test – risk that applicant would engage in criminal conduct in Australia – whether discretion should be exercised in accordance with ministerial direction – primary considerations – protection of the Australian Community – expectations of the Australian Community – other considerations – impact on family members – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 35(3)
Migration Act 1958 (Cth) – s 499 – s 501 – s 501(1) – s 501(6) – s 501(6)(d)
CASES
PHNR and Minister for Immigration and Border Protection [2017] AATA 1742
SECONDARY MATERIALS
Minister for Immigration and Border Protection, Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (22 December 2014) – paragraphs 6, 6.2, 6.3, 7(1), 8(1), 11(1), 11.1(1), 11.1(2), 11.1.1(1), 11.1.2, 11.2(1), 11.3(1), 12(1), 12.4(1), 14.5(1) - Section 2 Annex A
Office of the Children’s eSafety Commissioner, Submission No 22 to Senate Legal and Constitutional Affairs References Committee, Parliament of Australia, Phenomenon colloquially referred to as ‘revenge porn’, which involves sharing private sexual images and recordings of a person without their consent, with the intention to cause that person harm, January 2016
REASONS FOR DECISION
Brigadier A G Warner, Member
27 June 2018
INTRODUCTION
Pursuant to s 35(3) of the Administrative Appeals Tribunal Act1975 (Cth), the Administrative Appeals Tribunal (the Tribunal) can restrict the publication of the names of parties and any information tending to reveal the identity of a person to proceedings and allocate a pseudonym to the parties if the Tribunal deems it appropriate to do so. Accordingly, the Applicant in these proceedings will be referred to by the pseudonym “HMYH”. The Tribunal has also determined that it should not disclose the names of witnesses or those who provided character references in support of HMYH.
This is an application for a review of a decision of a delegate of the Minister for Home Affairs and Minister for Immigration and Border Protection (the Delegate) received by the Applicant on 4 April 2018, refusing to grant a Skilled (Provisional) (Class VC) visa (the visa) to HMYH on the ground that he does not pass the character test within the meaning of s 501 of the Migration Act 1958 (Cth) (the Act).
HMYH attended the hearing before this Tribunal for a review of the Delegate’s decision and was represented by Mr H Glenister. Mr A Gerrard appeared for the Respondent.
BACKGROUND
HMYH is a citizen of India born in 1991. HMYH first arrived in Australia in February 2014 as the holder of a student visa. He studied for a Master of Computing and Innovation and was granted another student visa on 15 February 2016.
In March 2016, HMYH began a relationship, and on 31 December 2016, HMYH was arrested by South Australian Police and charged with compelling his partner to have sexual intercourse with him, and threatening to distribute invasive images of her (threat offence) (Exhibit A1, para 14). HMYH was released on bail on 31 December 2016.
On 11 January 2017, HMYH was charged with two further offences against his former partner – failing to comply with a condition of his bail agreement by contacting his former partner (breach offence), and attempting to dissuade his former partner attending as a witness in judicial proceedings (Exhibit A1, para 17).
On 9 March 2017, HMYH lodged an online application for a Skilled (Provisional) (Class VC) visa, and was granted an associated bridging visa (Subclass 010 (Bridging A) visa) (the Bridging Visa).
On or around 8 May 2017, HMYH received an Indian police clearance indicating no criminal history in India (G8/23).
In the South Australian Magistrate’s Court on 15 June 2017, HMYH pleaded guilty to the threat offence and the breach offence. The other two charges were discontinued. On 9 August 2017, he was sentenced to five months imprisonment, suspended on entering a bond of $1000 to be of good behaviour for two years, for the following offences:
(a)Fail to Comply with Bail, Granted Agreement; and
(b)Threaten to Distribute Invasive Image of Person Over 17 years.
A Final Intervention Order against HMYH for the protection of his former partner was issued on 9 August 2017 and remains in effect (G21/79).
On 31 August 2017, HMYH’s Bridging Visa was cancelled (G22/94-96) and he was subsequently placed in immigration detention.
On 15 September 2017, the Migration & Refugee Division of the Tribunal affirmed the decision to cancel HMYH’s Bridging Visa (G35/161).
On or around 15 September 2017, a National Police Certificate recorded that HMYH’s only offences in Australia were those detailed at paragraph 9 above (G11/41).
On 9 February 2018, HMYH was issued a notice of intention to consider refusal of his visa under s 501(1) of the Act (G11/37-39). HMYH, through his migration agent, provided a response on 9 March 2018 (G12/42-54).
The Delegate refused to grant HMYH the visa on 3 April 2018 (G2/2-8) and HMYH was notified of this decision on 4 April 2018. On 10 April 2018, HMYH applied to the Tribunal for a review of that decision.
ISSUES
The issues before the Tribunal are whether HMYH meets the character test as defined in s 501(6) of the Act, and if he does not, whether the discretion in s 501(1) of the Act should be exercised to grant a visa pursuant to the considerations set out in Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction No. 65).
EVIDENCE
The evidence before the Tribunal comprised;
·the “G Documents” (G1-G35, pp1-169);
·the “Supplementary G Documents” (SG1-SG17, pp1-135);
·Applicant’s Statement of Facts, Issues and Contentions filed with the Tribunal on 6 June 2018 (Applicant’s SFIC) (Exhibit A1);
·letters in support of HMYH’s application (Exhibit A2, Exhibit A5, Exhibit A6, Exhibit A7, Exhibit A9, Exhibit A10, Exhibit A11 );
·statement of HMYH’s sister dated 4 June 2018 (Exhibit A3);
·statement of HMYH’s brother-in-law dated 4 June 2018 (Exhibit A4);
·letter from Psychiatrist regarding HMYH’s sister dated 25 May 2018 (Exhibit A8);
·four certificates of courses HMYH has completed with Serco (Exhibit A12);
·Serco Invitation to HMYH, filed with the Tribunal on 6 June 2018 (Exhibit A13);
·Western Union Money Transfers (6 pages) (Exhibit A14);
·Respondent’s Statement of Facts, Issues and Contentions (Respondent’s SIFC) dated 31 May 2018 (Exhibit R1);
·the oral evidence of HMYH’s sister;
·the oral evidence of HMYH’s brother-in-law;
·the oral evidence (by telephone) of a character referee (see Exhibit A5); and
·the oral evidence of HMYH.
HMYH’s oral evidence
HMYH’s testimony before the Tribunal included the following:
·The relationship relevant to his offending was his first and he considered that he and his former partner were “boyfriend/girlfriend”, but he had no control over himself at the time. In detention he has been attending classes to learn how to behave in relationships, to understand cultural differences and to improve his English and communications;
·He is very close to his sister and her family, and described his sister’s infant son as being “really like my child”. He financially supports his retired parents in India who took out loans to facilitate his studies in Australia, and tries to meet their health needs; and
·He had originally intended to return to India on completion of his university studies, but when living with his sister and her family he determined that there were better prospects in Australia to earn more and support his parents.
Oral evidence of HMYH’s sister
HMYH’s sister confirmed the contents of her statement dated 4 June 2018 (Exhibit A3).
She contradicted HMYH’s evidence regarding his stated original intention to return to India on completion of his studies, telling the Tribunal that her brother had always intended to remain in Australia permanently.
Oral evidence of HMYH’s brother-in-law
HMYH’s brother-in-law confirmed the contents of his statement dated 4 June 2018 (Exhibit A4).
He told the Tribunal that his wife was in depression and was seeing a psychiatrist. He said that as a consequence, he has needed to take a greater role in parenting their young son.
Oral evidence of close friend/character referee
By telephone conference, the witness confirmed his statement dated 3 June 2018 (Exhibit A5). He told the Tribunal that he understood the nature of the images HMYH had threatened to distribute.
Psychiatric evidence
The Tribunal had regard to the letter dated 25 May 2018 from the psychiatrist who stated that he had seen HMYH’s sister that day. The psychiatrist opined that HMYH’s sister was suffering from major depression “…due to the stressor of her brother being (sic) detention since February 2017. It seems like appeals to have him released from detention have been fruitless” (Exhibit A8).
The psychiatrist did not give evidence at the hearing. The Tribunal notes the inaccurate date of February 2017 as the date that HMYH has been in detention (see paragraph 11 above). The Tribunal did not have the opportunity to question the psychiatrist on the relative contribution of HMYH’s circumstances to the cause of his sister’s depression, when considered with other factors identified in the evidence before the Tribunal, including three previous miscarriages, post-natal depression, other medical conditions, her husband’s business difficulties and a recent motor vehicle accident.
LEGISLATION AND POLICY
Section 501 of the Act deals with refusals or cancellations of visas on character grounds. Subsection 501(1) of the Act provides that 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. Subsection 501(6) of the Act provides:
(6)For the purposes of this section, a person does not pass the character test if:
(a)…
(b)…
(c)…
(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;…
Guidance regarding the character test is found at paragraph 6 of Section 2 of Annex A to Direction No. 65. It relevantly provides that a person does not pass the character test if, in the event the person were allowed to remain in Australia, there is a risk that the person would engage in the conduct contemplated by s 501(6)(d) of the Act. This provision is enlivened if there is evidence suggesting that there is “more than a minimal or remote chance” that if allowed to remain in Australia, the person would engage in the type of conduct contemplated by that section. A finding that the person has previously engaged in conduct specified in s 501(6)(d) of the Act in the past is not sufficient, it is necessary for a decision-maker to identify a risk that the person would engage in such conduct in the future.
On 22 December 2014 the Minister, in accordance with his powers under s 499 of the Act issued Direction No. 65. Direction No. 65 commenced on 22 December 2014 and is binding on all decision-makers (s 499(2A) of the Act), including the Tribunal, from that date. Direction No. 65 provides guidance to decision-makers on the application of the character test and the exercise of the discretion.
Paragraph 7(1) of Direction No. 65 provides guidance as to how this discretion is to be exercised. Paragraph 7(1) states:
7. How to exercise the discretion
(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)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(1) of Direction No. 65 states:
8. Taking the relevant considerations into account
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case…
THE CHARACTER TEST
The Tribunal must first consider whether the visa applicant has satisfied the Tribunal that he passes the character test pursuant to s 501 of the Act. The Delegate found that HMYH did not pass the character test because “…there is a risk that he will engage in criminal conduct in Australia” (G4/13).
The Respondent contends that having regard to the fact that HMYH’s offences are recent and include a breach offence, there is a risk that he will engage in similar criminal conduct if allowed to remain in Australia (Exhibit R1, para 15).
Mr Glenister cited the case of PHNR and Minister for Immigration and Border Protection [2017] AATA 1742 (PHNR), in which Senior Member Poljak found that the applicant passed the character test under s 501(6)(d)(i) of the Act in circumstances where the applicant had been convicted of two charges of indecent assault and one charge of unlawful assembly. Mr Glenister submitted that the present matter is not dissimilar to PHNR in that HMYH is a first time offender, committed his offences over a short period of time (19 December 2016 to 11 January 2017) and has not offended since (Exhibit A1, paras 38-43). He further submits that “[t]here is no evidence that there is more than a minimal or remote risk that the Applicant will engage in criminal conduct in Australia” (Exhibit A1, para 46).
The Tribunal has reviewed the reasons given by the Delegate in finding that HMYH does not pass the character test by virtue of s 501(6)(d)(i) of the Act, and considers them reasonable and supported by the evidence (G4/11-14). These proceedings are of course de novo and in relation to assessment of the risk that HMYH will reoffend in the future, the Tribunal considers that the following matters weigh significantly in its own determination of risk and a finding that HMYH does not pass the character test:
·HMYH’s comments that a state of intoxication led to his offending and that he was out of control. There is no evidence before the Tribunal that HMYH has addressed this aspect of his offending behaviour.
·The evidence indicates that HMYH and his former partner have very different views on the nature of their relationship. HMYH described the relationship as “boyfriend/girlfriend” and told the Tribunal that although he was not ready for marriage at the time the relationship ended, he considered that the relationship could have led to marriage. In her witness statement to the police dated 4 January 2017, HMYH’s former partner stated: “Once we started seeing each other, we agreed it would be a casual sex type of relationship and that we could make videos of us having sex…” (SG9/19). In the text message exchanges that resulted in the breach offence, the former partner texted: “Bullshit, we weren’t together we were just casually seeing each other until i (sic) started respecting myself enough to never go with u (sic) again and also I met someone who actually cares for me” (SG10/45). The Tribunal cannot disregard the potential risk to the former partner if HMYH is granted a visa.
·The Tribunal notes and agrees with the Respondent’s concern, detailed in the Respondent’s SIFC:
Secondly, it is of concern that the applicant has a conviction for failure to comply with the conditions of his bail. This is particularly concerning given it relates to a breach of an intervention order which was issued for the protection of his former partner. The respondent contends that this is an indication that the applicant is at risk of committing further offences even where stringent conditions are placed upon him. It is equally concerning that the breach related to the sending of a text message to his former partner. This is indicative of, if not necessarily a pattern per se, at least the genesis of a pattern of behaviour. It also demonstrates that the applicant has no appreciation of the effect that engaging in this behaviour would have had upon his victim (Exhibit R1, para 30).
·The record of text messages attached to the statement that HMYH’s former partner provided to police on 11 January 2017 includes clear evidence that HMYH knew he was breaching his bail (SG10/28, SG10/36, and G10/47), but persisted nevertheless. The Tribunal considers that this behaviour suggests a disregard for court orders, an unwillingness or inability to comply with lawful directions and there is an ongoing risk that HMYH will reoffend.
Having carefully considered all the available and relevant evidence, including HMYH’s criminal history and submissions made by him and on his behalf, the Tribunal is satisfied that there is a risk that HMYH will reoffend and engage in criminal conduct in Australia. That risk may not be large, but the Tribunal considers it more than minimal or remote. It follows that the Tribunal finds that HMYH does not pass the character test pursuant to s 501(6)(d)(i) of the Act.
DISCRETION UNDER SECTION 501(1) OF THE ACT
Having determined that HMYH does not pass the character test, the Tribunal must consider whether it should exercise its residual discretion under s 501(1) of the Act to refuse HMYH’s application for a visa.
By way of general guidance and principles, paragraph 6 of Direction No. 65 relevantly provides that:
6.2 General Guidance
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)…
6.3 Principles
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against 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.
PRIMARY CONSIDERATIONS
Paragraph 11(1) of Direction No. 65 sets out the primary considerations that a decision-maker must take into account in relation to visa applicants:
11. Primary considerations – visa applicants
(1)In deciding whether to refuse a non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian Community.
Protection of the Australian Community
Paragraph 11.1(1) of Direction No. 65 provides that decision-makers considering the protection of the Australian community should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity (in paragraph 6.2(1) set out above in paragraph 37). Paragraph 11.1(1) identifies two factors to which consideration should also be given:
(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.
(a) The nature and seriousness of the conduct
Paragraph 11.1.1(1) of Direction No. 65 gives a non-exhaustive list of factors to which decision-makers must have regard in considering the nature and seriousness of the person's criminal conduct. Relevantly, they include:
11.1.1 The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other 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 courts for a crime or crimes;…
HMYH was sentenced to a term of imprisonment of five months, suspended for two years upon entering into a good behaviour bond of $1000. The Magistrate’s Sentencing Remarks were not provided in the “G Documents”, and the Applicant’s SFIC invites the Tribunal to bear in mind that:
It should be borne in mind that the learned Magistrate ought to have taken into account the Applicant’s status as a first-time offender, his relatively early plea of guilty and the maximum penalties which his conduct could attract. The learned Magistrate was bound not to take into account the Applicant’s discontinued charges and any facts solely associated to them (Exhibit A1, para 65).
The Tribunal does so and considers that the sentence imposed on HMYH reflects the serious nature of his offending. HMYH admitted that he threatened to send compromising images of his former partner to her friends, conduct that the Australian Community would find unacceptable and repugnant. Relevantly, in its consideration of the nature and seriousness of HMYH’s conduct the Tribunal notes the views of the Office of the Children’s eSafety Commissioner (the Office), contained in its submission to the Senate Legal and Constitutional Affairs References Committee (eSafety submission) and cited by the Respondent. The Office submitted, at p 6:
The Office considers the non-consensual sharing of private and intimate photos can be a form of technology-facilitated domestic violence. Research demonstrates that the threat of sharing intimate images is being used in domestic violence and sexual assault situations to blackmail victims, or to discourage them from seeking help from the police. It’s not just ‘revenge’ towards an ex-lover that motivates perpetrators of these harms. In many cases, it is part of a pattern of abuse against and control over women (Footnote omitted).
In relation to the harm suffered by HMYH’s former partner, the Applicant’s SFIC submits as follows:
…the apprehension that she [HMYH’s former partner] felt at the thought of having invasive images of herself distributed must have been significant. However, the harm she suffered is not likely to be long-term or ongoing; nor would the harm suffered by a hypothetical future victim (Exhibit A1, para 69).
There is no evidence to support this submission, and the Tribunal does not accept it. Rather, the Tribunal is of the view that significant harm to members of the community could result should HMYH engage in similar offending behaviour, and the community should not be expected to tolerate such risk.
Before concluding this consideration, the Tribunal again notes the view expressed in the eSafety submission, at p 6, relevant to the potential harm associating with behaviour akin to HMYH’s threat offence:
The threat of an abusive partner distributing private sexual photos or videos perpetuates intimate partner violence. Threats of violence and intimidation are among the most favoured weapons of domestic abusers, and the rise of social media has only made those tactics more commonplace (Footnotes omitted).
(b) The risk to the Australian Community should further offences be committed
Paragraph 11.1.2 of Direction No. 65 sets out principles and factors to which decision- makers should and must have regard in assessing whether the 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 serous conduct
(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.
(2)In 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.
(3)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.
(4)Decision-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.
The Tribunal has addressed in some detail in its consideration of the character test above, the likelihood of further criminal conduct by HMYH. In this consideration, the Tribunal has regard to HMYH’s expressed remorse, the limited stay period attached to the specific visa being sought and HMYH’s family circumstances (see under the heading “Other Considerations” below).
The Tribunal notes HMYH’s evidence (see paragraph 18 above) that he is taking steps while in immigration detention to inform, improve and rehabilitate himself. This positive action is encouraged. However, there is no corroborative evidence before the Tribunal as to the nature and intensity of that action such that it would provide an acceptable level of reassurance to the Australian Community or mitigate HMYH’s risk of re-offending.
HMYH’s offences are relatively recent and he was convicted in August 2017. He remains subject to an intervention order and resides in immigration detention. The Respondent contends that in these circumstances it is too soon for the Australian community to be reassured that his offences represent an aberration of character. Whilst having due regard to the Indian police clearance (paragraph 8 above refers) and National Police Certificate (paragraph 13 refers), the Tribunal agrees with the Respondent’s submission.
Having carefully looked at all the material and the guidance relevant to this consideration, the Tribunal confirms the conclusion reached at paragraph 35 above. That is, the Tribunal is satisfied that there is a risk that HMYH will reoffend and engage in criminal conduct in Australia. That risk may not be large, but the Tribunal considers it more than minimal or remote.
The primary consideration for the protection of the Australian community from criminal or other serious conduct weighs against granting HMYH the visa.
Best interests of minor children in Australia affected by the decision
The second primary consideration listed in Direction No. 65 is the best interests of any minor children in Australia affected by the decision. Paragraph 11.2(1) of Direction No. 65 requires decision-makers to make a determination about whether the refusal is, or is not, in the best interests of the child. HMYH has no children and this consideration does not arise. However, there is evidence before the Tribunal related to HMYH’s relationship with a nephew in Australia and the Tribunal includes that relationship in the consideration of “Impact on family members” below.
Expectations of the Australian Community
The third primary consideration listed in Direction No. 65 is the expectation of the Australian Community. Paragraph 11.3(1) of Direction No. 65 provides that:
(1)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 relation to this primary consideration, the Respondent refers to the stated principles in paragraph 6.3 of Direction No. 65 and in particular the principles that the Australian community expects the Australian Government to refuse to grant visas to non-citizens who commit serious crimes and non-citizens who commit serious crimes should generally expect to forfeit the privilege of coming to, and staying in, Australia (Exhibit R1, paragraph 34).
The Tribunal is satisfied that the Australian community would find the circumstances, including the threatening nature and graphic language of HMYH’s offending, repugnant. The breach offence indicates not only reoffending in a similar manner despite the existence of stringent conditions, a failure to comprehend the impact on his former partner, and a disregard for the law. The Tribunal finds that the Australian community would expect that HMYH’s application for a visa be refused.
OTHER CONSIDERATIONS
Paragraph 12(1) of Direction No. 65, provides that in deciding whether to “cancel” a person's visa, other considerations must be taken into account where relevant, including, but not limited to:
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims;
(d)Impact on Australian business interests.
The Tribunal finds that although paragraph 12(1) of Direction No. 65 refers to a decision to “cancel” a visa, the decision to refuse to grant a visa is in practical terms akin to a decision to cancel a visa. It is therefore appropriate for the Tribunal to take into account any other relevant considerations.
International non-refoulement obligations
This consideration does not arise in these proceedings.
Impact on family members
HMYH’s sister, who is married with one child, resides in Australia as a permanent resident (G4/15). The Tribunal notes and accepts the considerable evidence of the close relationship HMYH has with his sister, brother-in-law and nephew, and the potential impact on them should HMYH’s visa application be refused.
However, HMYH’s sister told the Tribunal that her decision to move to Australia was made independent of HMYH’s intentions, and she has moved to another state without her brother. The Tribunal has particular regard to HMYH’s claimed pivotal avuncular relationship with his sister’s infant son. For the reasons made clear in the submissions and oral evidence before the Tribunal, it would be in the best interests of the child that HMYH’s visa application not be refused. However, despite HMYH’s intention to play a part in his nephew’s upbringing, he has no responsibilities or obligations as a parent or guardian, his nephew has not seen him for some time, and the nephew lives with both his own parents.
In the statement of reasons for the decision under review, the Delegate also had regard to the impact of the visa refusal on HMYH’s parents in India, commenting as follows:
[HMYH] has submitted that his father is now retired and his mother is a house wife. His father has provided financial help to support him and obtained a loan on his behalf to enable him to come to Australia and study. This loan remains unpaid and to enable him to do this he wishes to remain in Australia where there is more opportunity in his chosen field of IT and better pay than in India. If he were to return to India he will find it hard to pay back the loan and it would become impossible for him to take (sic) of his parents and pay their hospital bills in future.
I find that it may likely be in the best interests that [HMYH] remain in Australia, however, given he has gained further skills and education in Australia this would also benefit further opportunities back in India. Therefore I find there is no evidence to no actual loss were he to be deported; they would not miss what they do not yet have (G4/16).
Noting that this review is de novo, the Tribunal agrees.
Aside from the family members considered in the paragraphs above, HMYH’s remaining family members reside in India and there is no evidence or submission that they are likely to be impacted by the visa refusal. This would not fall for consideration given that these family members are not in Australia, nor are they Australian citizens (refer to principle 12.2(1) of Direction No. 65).
The Tribunal is satisfied that a visa refusal will result in a significant impact on HMYH’s family members, and therefore this consideration weighs in favour of not refusing the visa application. However, the Tribunal is also satisfied that this consideration does not outweigh the primary considerations of the protection of the Australian Community and expectations of the Australian Community (refer to the principle in paragraph 8.4 of Direction No. 65).
Impact on victims
There is no evidence before the Tribunal of the impact that a refusal decision will have on HMYH’s former partner. However, the Tribunal notes that an intervention order for the protection of the former partner remains in effect (paragraph 10 above refers).
Impact on Australia business interests
Paragraph 12.4(1) of Direction No. 65 provides guidance that “…an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project or delivery of an important service in Australia”.
The Tribunal notes HMYH’s employment history in Australia, however there is no evidence of business issues of the kind contemplated in paragraph 12.4(1) that would weigh in favour of granting the visa.
Extent of impediments if returned to India
Although not a consideration specifically listed in paragraph 12(1) of Direction No. 65 (rather, it is listed in paragraph 14.5(1) which sets out the considerations when exercising the discretion for the revocation of a mandatory cancellation of a visa), the Respondent briefly submitted that there would be minimum impediments should HMYH return to India as he had spent most of his life there, his parents and other family members resided there, he had been educated to tertiary level in India and would be returning with further qualifications, and was familiar with the customs and culture. The Tribunal agrees although it has given no weight to this as this is not a consideration relevant to the refusal of a visa.
CONCLUSION
In weighing the relevant primary and other considerations in the paragraphs above the Tribunal is cognisant of what is said in paragraph 8(1) of Direction No. 65 regarding the difference between a visa holder and an applicant for a visa: “…a visa applicant should have no expectation that a visa application will be approved”.
The Tribunal is satisfied that HMYH does not pass the character test under s 501(6)(d)(i) of the Act. In the analysis above, the Tribunal finds that the consideration of the other factor of the impact on family members weighs in favour of the grant of the visa, however this does not outweigh the consideration of the primary factors of protection of the Australian Community and the expectations of the Australian Community which weigh in favour of refusing to grant the visa.
The Tribunal, after having careful regard to all of the relevant primary considerations and other considerations required to be taken into account as required by Direction No. 65, and in light of the evidence and material before the Tribunal, determines that the correct and preferable decision is that the Delegate's decision to refuse HMYH’s application for the visa should be affirmed.
DECISION
For the reasons outlined above, the decision under review is affirmed.
I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Brigadier A G Warner, Member
.....[sgd]...................................................................
Associate
Dated: 27 June 2018
Date of hearing: 12 June 2018 Counsel for the Applicant: Mr Hamish Glenister Solicitors for the Applicant: Cathal Smith Legal Pty Ltd Counsel for the Respondent: Mr Arran Gerrard Solicitors for the Respondent: Australian Government Solicitor
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Natural Justice
-
Statutory Construction
-
Jurisdiction
-
Standing
1
1
0