HMYH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2020] AATA 1465

HMYH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1465 (26 May 2020)

Division:GENERAL DIVISION

File Number:          2018/1859

Re:HMYH

APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Senior Member A. Nikolic AM CSC

Dr. S. Fenwick, Senior Member

Date:26 May 2020

Place:Melbourne

The Tribunal affirms the decision under review.

......................[sgd]..............................

Senior Member A. Nikolic AM CSC

MIGRATION – visa refusal – whether the applicant passes the character test - failure to pass the character test – sexual offence – fail to comply with bail – whether the visa should be refused on character grounds - Ministerial Direction No. 79 applied – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth)
Migration Regulations 1994 (Cth)

Serious Sex Offenders Monitoring Act 2005 (Vic)

CASES

Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65

Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132

Ayoub v Minister for Immigration and Border Protection [2015] FCAFC

Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113

BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104

DFW18 v Minister for Home Affairs [2019] FCA 599

FYBR v Minister for Home Affairs [2019] FCAFC 185

FYBR and Minister for Home Affairs [2020] HCATrans 056

HMYH v Minister for Home Affairs [2018] AATA 1868

Hughes v The Queen [2017] HCA 20; 344 ALR 187

Jagroop v Minister for Immigration and Border Protection [2016] 241 FCR 461

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033

Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313

Minister for Immigration and Ethic Affairs v Guo (1997) 191 CLR 559

RJE v Secretary to the Department of Justice [2008] VSCA 265; 21 VR 256

Roberts v Minister for Home Affairs [2018] AATA 3970

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] 228 CLR 152

SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth)

REASONS FOR DECISION

Senior Member A. Nikolic AM CSC

Dr. S. Fenwick, Senior Member

26 May 2020

INTRODUCTION

1. The applicant seeks review of a decision by a delegate of the respondent, made under section 501(1) of the Migration Act 1958 (“the Act”) to refuse to grant him a Skilled (Provisional) (Class VC) visa (“the Visa”).

2. On 26 June 2018, the Tribunal, differently constituted, made an order pursuant to section 35(3) of the Administrative Appeals Tribunal Act 1975. The effect of that order is that the publication, or other disclosure, of information tending to identify the applicant, witnesses, or individuals otherwise associated with the applicant is prohibited. The anonym ‘HMYH’ will continue to be used.

3. The hearing was originally listed for three days from 26 to 28 November 2019. The applicant was represented by Mr Wood of counsel, instructed by Clothier Anderson Immigration Lawyers. The Respondent was represented by Mr Brown of the Australian Government Solicitor. Late on 26 November 2019, the hearing was adjourned to enable the expert witness called by HMYH to consider additional material. Following submission of a further report from the expert witness on 6 March 2020,[1] the hearing resumed on 4 May 2020 and concluded on 5 May 2020.

   [1] Exhibit A1.

4. For the reasons that follow, we affirm the decision under review.

   BACKGROUND

5. HMYH is a 28-year-old citizen of India and the youngest of three siblings. He and one sister live in Australia, while another sister and his parents live in India. He has returned to India once, for a nine-day visit in in 2015.[2]

   [2] Exhibit R1, 60.

6. While living in India HMYH completed an undergraduate degree in Computer Science. At the age of 23 he travelled to Australia to undertake post-graduate studies in the same field, as the holder of a Higher Education Sector visa (subclass 573).[3]

   [3] Ibid, 69-70.

7. On 15 February 2016 HMYH was granted a further subclass 573 visa to complete his studies after failing some subjects. He initially planned to return to India after completing his studies, to ‘build a successful career in…Information Technology.’[4] Over time he has come to the view that he would prefer to work and make a new life for himself in Australia.[5]

   [4] Ibid.

   [5] Ibid, 187 [14].

8. For most of his studies in Australia HMYH lived with his eldest sister and brother-in-law, who moved to Melbourne in October 2016. HMYH did not accompany them because he was due to complete his degree at the end of 2016.

9. In December 2016 HMYH was charged with criminal offences and bailed. His bail conditions required that he ‘not approach or communicate, either directly or indirectly’ with the complainant. HMYH subsequently breached his bail conditions.

10. In March 2017 HMYH applied for a Temporary Graduate visa (subclass 485), as a result of which he was granted an associated Bridging visa A (subclass 010).[6] He was concurrently considered for the grant of the visa that is the subject of his current application. In his visa application HMYH disclosed being charged with an offence awaiting legal action. He stated the circumstances of that pending matter were:

    ‘Being charged for a False case by my girlfriend.’ [7]

    [6] Ibid, 70.

    [7] Ibid, 54.

11. On 9 August 2017 HMYH entered pleas of guilty and was convicted of one count of Threaten To Distribute Invasive Image Of Person Over 17 Years, and one count of Fail To Comply With Bail Granted Agreement.[8] He was sentenced to an aggregate of five months imprisonment, suspended on entering a bond of $1,000 and an undertaking to be of good behaviour for two years. A Final Intervention Order was also made by the Court for the protection of his victim, encompassing ten conditions.[9]

    [8] Ibid, 42; 101.

    [9] Ibid, 103-104.

12. Following these convictions, the Bridging visa held by HMYH was cancelled under s 116 of the Act. He was then taken into immigration detention. HMYH applied to the Tribunal for review of that visa cancellation decision, which was affirmed by the Tribunal’s Migration and Refugee Division in September 2017.[10]

    [10] Ibid, 185-193.

13. On 9 February 2018, the respondent issued HMYH with a Notice of Intention to Consider Refusal of his visa application,[11] to which HMYH responded on 9 March 2018.[12]

    [11] Ibid, 61-63.

    [12] Ibid, 66-193.

14. On 3 April 2018 a delegate of the respondent decided to refuse the visa application pursuant to s 501(1) of the Act.[13] HMYH was informed of this decision via email to his authorised recipient on 4 April 2018.[14] On 10 April 2018 HMYH applied to the Tribunal for a review of the visa refusal decision.

    [13] Ibid, 26-32.

    [14] Ibid, 25.

15. On 27 June 2018, the Tribunal, differently constituted, affirmed the decision under review.[15] HMYH sought judicial review of that decision in the Federal Court of Australia. On 12 October 2018 the Federal Court quashed the Tribunal’s decision, giving rise to these proceedings.

    [15] HMYH v Minister for Home Affairs [2018] AATA 1868.

    STATUTORY FRAMEWORK

16. Section 501(1) of the Act is one of several discrete powers conferred on the Minister, and provides for refusal to grant a visa, if an applicant does not satisfy the Minister, or their delegate, that they pass the character test.

17. The character test is defined at sections 501(6) - 501(11) of the Act and refers to the range of circumstances giving rise to the power to refuse or cancel a visa. HMYH’s visa refusal was based on section 501(6)(d)(i) of the Act, which states that:

    (6)  … a person does not pass the character test if:

    … (d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

    (i) engage in criminal conduct in Australia.               

18. The Tribunal must consider whether it is satisfied that HMYH passes the character test. If not, the Tribunal must then determine if the discretion under section 501(1) of the Act to refuse his visa application should be exercised.[16]

    [16] The Federal Court has reinforced the importance of adhering to the two-step process mandated by section 501 of the Act. See for example: Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113.

    Direction No. 79

19. The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. The Minister has done so in the form of Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (“the Direction”). Section 499(2A) mandates that a body having functions or powers under the Act, such as the Tribunal, must comply with the Direction.[17]

    [17] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, at [9] per Collier, Flick and Perry JJ. See also: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J.

20. The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Clause 6.1 of the Direction sets out several objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’

21. By way of general guidance, cl 6.2 of the Direction provides that:

    (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) …

    (3) The principles provide a framework within which decision-makers should approach their task of deciding whether to … refuse or cancel a non-citizen’s visa under section 501 …

22. The principles referred to under the General Guidance are reproduced below and constitute a framework within which decision-makers apply the considerations in Parts A, B, or C of the Direction:

    6.3      Principles

    (1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    (5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

23. Annex A to the Direction provides both general and specific guidance to decision makers in determining whether a person passes the character test. In general guidance, section 1 of Annex A provides:

    (1) Under section 501 of the Act, a person may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test …

    (2) Persons who are being considered under section 501 to the Act must satisfy the decision-maker that they pass the character test set out in section 501(6) of the Act. In practice, this requires the decision maker to determine, on the basis of all relevant information including information provided by the person, that the person does not pass the character test by reference to section 501(6) of the Act.

24. Clause 7.1(a) of the Direction states that a decision-maker ‘… 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.’

25. Clause 8(1) of the Direction explains that the considerations in Part A and Part C for existing visa holders and in Part B for visa applicants are different:

    Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

    (Emphasis added)

26. If it is determined that HMYH does not pass the character test, the following primary considerations at cl 11(1) of the Direction must be applied to the specific circumstances of his case:

    (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.

27. Clause 12(1) of the Direction requires that other considerations to be taken into account, where relevant, 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.

28. Clause 8(2) of the Direction states that in applying the primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight.

29. Clause 8(3) of the Direction states that ‘Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.’

30. Clause 8(4) of the Direction states that ‘Primary considerations should generally be given greater weight than the other considerations.’

31. Clause 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461 at [57] and [78], in relation to previous ministerial directions:

    [57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…

    …

    [78] … Ultimately… each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.

32. Annex A, section 2 of the Direction is titled ‘Application of the character test’. Clauses 6 and 6.1 relevantly state:

    6Risk in regards to future conduct (section 501(6)(d))

    (1)       A person does not pass the character test if, in the event that the    person were allowed to enter or remain in Australia, there is a risk that the person would engage in any of the conduct specified in section 501(6)(d) of the Act. The types of conduct specified are discussed below.

    (2)       The grounds are enlivened if there is evidence suggesting that    there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.

    (3)       It is not sufficient to find that the person has engaged in conduct    specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.

    6.1      Risk of engaging in criminal conduct in Australia (section 501(6)(d)(i))

    (1)       A person does not pass the character test if, in the event that the    person were allowed to enter or remain in Australia, there is a risk   that the person will engage in criminal conduct in Australia.

    (2)       The reference to criminal conduct must be read as requiring that    there is a risk of the person engaging in conduct for which a criminal   conviction could be recorded.

    ISSUES

33. The issues to be resolved in this case are:

    (a)Whether HMYH passes the character test; and

    (b)If not, whether the discretion to refuse his visa application should be exercised, after applying the considerations at Part B of the Direction to the specific circumstances of his case.

    EVIDENCE BEFORE THE TRIBUNAL

34. The following materials were taken into evidence:

    (a)Documents lodged by the Respondent numbering 396 pages and titled “Remittal Documents”);[18]

    [18] Exhibit R1.

    (b)Letter of Instruction dated 30 May 2019 to Clinical and Forensic Psychologist, Mr Patrick Newton, with attachments including:[19]

    [19] Exhibit A1.

    (i)a chronology of relevant events composed by HMYH’s lawyers;

    (ii)a copy of Ministerial Direction No. 79;

    (iii)the August 2017 sentencing remarks;

    (iv)a National Police Certificate dated 15 September 2017;

    (v)a copy of a ‘Suspended Sentence Bond’ dated 9 August 2017;

    (vi)a Police Clearance Certificate from the Consulate General of India issued on 8 May 2017;

    (vii)letter from a Senior Counsellor regarding HMYH’s participation in counselling and programs dated 9 August 2018;

    (viii)bundle of vocational/therapeutic certificates of completion/attendance:

    -‘Anger Management’ (6 sessions) dated 10 January 2019;

    -‘Unshakable Confidence: Become 100% Secure in Who You Are’ dated 19 May 2019;

    -‘Mind Masters – Calming Your Mind and Emotions’ dated 19 May 2019;

    -‘Kickstart Clear Communication Skills’ dated 24 May 2019;

    -‘Holyoake Men’s Group Program’ dated 6 August 2018;

    -‘Negotiation and Conflict Resolution’ dated 4 September 2018;

    -‘The Web Developer Bootcamp’;

    -‘Certificate of Attendance’ for Conflict Resolution Strategies sessions dated 23 October 2018;

    -‘Anger Management Techniques That Actually Work’ dated 31 October 2018; and

    -‘Overcome Rejection in 2 Hours: Stop the Pain, Anger & Fear’ dated 5 November 2018;

    (c)HMYH’s statement dated 22 June 2019;[20]

    [20] Exhibit A2.

    (d)Report of Mr Newton dated 11 June 2019, to which are attached 78 pages of records from the International Health and Medical Services (“IHMS”), which is contracted by the Commonwealth of Australia to provide primary and mental health care to people in immigration detention;[21]

    [21] Exhibit A3.

    (e)Supplementary statement by HMYH dated 29 April 2020, attaching the following certificates:[22]

    [22] Exhibit A4.

    (i)‘Link Programme sessions encompassing Dialetical Behaviour Therapy’ presented February 2020;

    (ii)‘Self-Confidence & Self Esteem – Few Minutes Practical Guide’ dated 1 February 2020;

    (iii)‘What’s the Law for New Arrivals’ presented February 2020;

    (iv)Two ‘LINK Skills Program’ certificates awarded April 2020;

    (v)‘Mindfulness – Based Stress Reduction’ (8 sessions) presented 3 March 2020;

    (vi)‘Relationship Coaching: Transform Problems into Growth & Love’ 11 March 2019; and

    (vii)‘LINK Attendance Certificate’ awarded April 2020;

    (f)Bundle of nine character references encompassing statements from a Catholic Priest, two representatives of Sikh community organisations, a former employer in the security industry, and five statements from friends of HYMH;[23]

    [23] Exhibit A5.

    (g)Bundle of documents including:[24]  

    [24] Exhibit A6.

    (i)58 pages of approved detention visit forms applied for by HMYH’s sister and brother-in-law during the period August 2018 to June 2019;

    (ii)24 photocopies of photographs of HMYH in the company of his sister, brother-in-law and his two nephews;

    (iii)a letter from HMYH’s legal representative dated 8 October 2017;

    (iv)a letter from a psychologist dated 18 June 2019, regarding consultations with HMYH’s sister between October 2018 and June 2019, about the stress she was experiencing as a result of HMYH being in detention;

    (v)a letter from a general practitioner dated 23 February 2018 regarding HMYH’s sister suffering depression since February 2017 requiring medication and counselling;

    (vi)a request by HMYH’s sister to immigration detention staff seeking to bring a birthday cake into the facility;

    (vii)a telephone call record from HMYH’s sister’s phone detailing unspecified outgoing, incoming and missed calls during the period 19 April 2019 and 9 June 2019, which the Tribunal infers is intended to reflect frequent telephone contact between HMYH and his sister; and

    (viii)a copy of the birth certificate for HMYH’s youngest nephew.

    (h)Addendum to Mr Newton’s report dated 6 March 2020;[25]

    [25] Exhibit A7.

    (i)Statement of HMYH’s brother-in-law dated 20 June 2019;[26]

    [26] Exhibit A8.

    (j)Statement of HMYH’s sister dated 20 June 2020;[27] and

    [27] Exhibit A9.

    (k)Bundle of documents comprising primarily certificates of completion/participation, including:[28]

    [28] Exhibit A10.

    (i)‘Conflict Resolution Strategies’ dated 23 October 2018;

    (ii)‘Anger Management’ dated 10 January 2019;

    (iii)‘Habits of Great Relationships’ dated 12 March 2019;

    (iv)‘Conflict Resolution Training’ dated November 2018

    (v)‘What’s The Law Training’ presented April 2019;

    (vi)‘Reframing Your Life’ dated 14 April 2019;

    (vii)‘Negotiation – Understanding Personality Types’ dated 16 April 2019;

    (viii)‘Certificate of Appreciation’ for participation in Computer Lab dated 23 May 2018;

    (ix)‘Computer Lab’ dated 24 May 2018;

    (x)‘Certificate in English Language’ dated 30 May 2018;

    (xi)‘Certificate of Participation & Merit’ in respect of gym activities dated 30 May 2018; and

    (xii)Correspondence nominating HMYH to attend a Welfare & Engagement Barbeque on 29 March 2018 and 2 May 2018.

1. The following witnesses gave oral evidence at the hearing:

   (a)HMYH;

   (b)Mr Newton;

   (c)HMYH’s brother-in-law; and

   (d)HMYH’s sister.

   Australian convictions and Indian police clearance certificate

2. The Tribunal finds that HMYH’s Australian National Police Certificate is an accurate record of his offending.[29]  A Police Clearance Certificate from India dated 8 May 2017 states: ‘there is nothing adverse against the name of the applicant…so far as his…stay in India is concerned, which would have rendered him…ineligible for grant of travel facilities…,’[30] which the Tribunal accepts.

   [29] Exhibit R1, 42.

   [30] Ibid, 47.

   Sentencing remarks

3. The sentencing remarks from HMYH’s 2017 trial cannot be referred to in detail because it may tend to identify him. The victim will be referred to as “J1”. The sentencing remarks are summarised as follows:

   (a)HMYH and J1 were involved in a relationship based on sexual encounters, many of which occurred on public streets in HMYH’s car;

   (b)J1 consented to HMYH making videos of some sexual encounters, on the understanding they would be deleted once the sexual encounters were finished;

   (c)Approximately a month prior to the incidents for which HMYH was convicted, J1 said she told HMYH that she wanted to respect herself more and did not want their relationship to continue;

   (d)HMYH sent J1 text messages threatening to send the indecent images of their sexual encounters to others if she did not meet him on one last occasion;

   (e)After several text messages, J1 stated the only reason she met HMYH was so that the photos and images would be deleted, however HMYH claimed to have already disposed of the images;

   (f)The day following the meeting J1 reported the matter to police who arrested HMYH, who was then bailed on the condition that he not contact or communicate with J1 either directly or indirectly;

   (g)Approximately a week later and over a three-day period, HMYH repeatedly sent text messages to J1 about the criminal proceedings in breach of his bail agreement;

   (h)HMYH was again arrested, charged and granted bail;

   (i)Friends and family, who considered HMYH to be a ‘decent, hard-working and trustworthy person’ who ‘respects girls,’ were partly wrong, because HMYH had ‘acted in a manipulative, threatening and disgraceful manner’ against the victim. The Court held that the conduct HMYH displayed with J1 was ‘very different to the man described in the character references and statements;’

   (j)The Court regarded both offences that HMYH was convicted of as ‘serious.’ The Chief Magistrate considered HMYH’s actions in forcing J1 to meet him by threatening to distribute the intimate images ‘was particularly malicious and manipulating.’ The Court held that the messaging of the victim was ‘prolonged’ and occurred in circumstances where the victim made it clear she did not want to meet with him. The multiple text messages persisted even after the victim reminded HMYH he was breaching his bail undertaking;

   (k)The Court considered it appropriate to impose a conviction and a sentence of imprisonment, acknowledging HMYH’s ability to obtain a work visa may be impacted, and notwithstanding the legislative machinery in the Migration Act potentially being engaged as a result of the sentence;

   (l)Considering HMYH’s plea of guilty, a five-month sentence of imprisonment was imposed, suspended upon HMYH entering a bond to be of good behaviour for two years. The Court stated that HMYH’s ‘lack of criminal history and prospects of rehabilitation’ were reasons impacting on that sentencing decision; and

   (m)HMYH consented to forfeiture of all electronic devices seized by police and the making of an intervention order, which the Court granted. HMYH was required to forfeit ‘all electronic devices seized by police,’ because of the prosecution’s reasonable belief ‘that these devices may contain sensitive images of the complainant engaged in private sexual acts’ and to:

   ‘ensure that the tools used to commit the offence… are forfeited to prevent and deter [HMYH] from perpetrating further criminal acts, to provide the complainant with some peace of mind with the knowledge that these images can no longer be viewed shared or distributed by [HMYH] and deter others who may be minded to use their electronic devices to threaten, bribe and/or intimidate others.’[31]

   [31] Ibid, 2 [5].

   Expert Evidence

4. Clinical and forensic psychologist Mr Patrick Newton gave oral evidence at the initial and resumed hearing, which can be summarised as follows:

   (a)Mr Newton adopted his report dated 11 June 2019. He said that after ‘a couple of hours’ reviewing ‘several hundred pages’ of ‘collateral information,’ and following an approximately 90-minute to two-hour interview by video link, he had assessed HMYH, ‘as posing a low risk of recidivism to further sexual offending.’[32] Mr Newton submitted that the RSVP[33] instrument he administered was widely used in evaluating ‘sex offenders in Victoria and… across the English speaking world.’ He concluded that HMYH was a ‘different man’ now, particularly after spending two years in immigration detention, during which he completed several courses and programs. HMYH was also aware of the effect that any further offending would have on his ability to remain in Australia;    

   (b)When asked if he put the ‘so-called revenge porn’ offence committed by HMYH, ‘in the category of sexual violence,’ Mr Newton said he would ‘certainly regard it as a sexual offence…and, to that extent, any sexual offence is a violent offence.’ Because of that conclusion, he used an assessment instrument ‘that responds to sexual violence and assesses the risk of that.’ Mr Newton opined that the sort of offending HMYH engaged in ‘certainly creates circumstances of fear, distress and psychological harm at the very least for the victims of those crimes and, to that extent, by definition, is violent;’

   (c)When asked why HMYH had threatened J1, just to secure a meeting, Mr Newton said such behaviour was ‘self-defeating and inherently contradictory in terms of the overall goal of the relationship.’ He opined that HMYH perceived the need to explain himself to J1 as being ‘paramount’ and felt he had a ‘just right’ to be heard. Mr Newton said the inability to secure that opportunity made HMYH feel ‘disempowered and cut out of the relationship,’ such that he ‘wanted to reassert his power by engaging in an act of violence towards her.’ Mr Newton characterised the conduct as an attempt by HMYH ‘to re-establish power and control;’

   (d)When asked if his report considered the Chief Magistrate’s sentencing remarks, particularly the text messages in breach of HMYH’s bail conditions, Mr Newton said it had, but he was unsure if that was unambiguously stated in his report. When asked about paragraph 19 of his report, in which it states HMYH ‘allowed a friend to send messages from his phone to the Complainant,’ Mr Newton said this is what HMYH told him. Mr Brown asked whether it was relevant that HMYH’s account conflicted with the sentencing remarks, which found it was HMYH and not a friend who repeatedly messaged the victim. Mr Newton agreed there was ‘an exculpatory narrative about the breach of bail’ that was self-evidently a discrepancy, but it was important in terms of evaluating HMYH’s credibility to ‘have regard to the totality of his statements.’ He said the ‘exculpatory narrative would be noted as a factor…to be worked upon in further discussions,’ but HMYH’s inconsistent account was not of ‘sufficient intensity’ to constitute ‘extreme minimisation or denial,’ such as to affect the overall assessment.

   (e)Mr Newton was asked whether the ‘sex violence tool’ he chose to assess HMYH’s risk incorporated the bail breach offence ‘as an extension of the sexual offence,’ or whether it could be seen outside of that context, such as a  capacity to understand the legal system or comply with conditional liberty provisions. Mr Newton replied it should be seen within both frameworks, but he thought the bail breach was ‘an extension of the initial offending;’

   (f)Mr Newton was asked what the breach of bail might indicate about HMYH’s capacity to comply with orders of the Court. He responded that the breach offence was an aggravating factor encompassing ‘cultural factors of conflict resolution.’ This was despite HMYH’s clear understanding that the bail conditions prohibited him from direct or indirect contact with the complainant;

   (g)When asked about the basis for his assessment about HMYH’s rehabilitative progress, Mr Newton referred to HMYH’s willingness to openly discuss factors relevant to his offending, the beneficial effects of courses undertaken, and his appreciation of the gravity of his offending, including on the complainant, and how to avoid repeated offending. During his evidence on 26 November 2019, Mr Newton thought there were ‘no ongoing offence-specific treatment needs identified in HMYH’s case…to reduce his risk of recidivism.’ That was because HMYH had ‘manifestly addressed the factors which led to this breach of behaviour, and because he has no ongoing need for treatment that consolidates the assessment of him as being at low risk of recidivism.’ When asked to elaborate, Mr Newton said:

   ‘Any mental health evaluation is of necessity going to rely upon the reports of the individual being evaluated…though perhaps…hopefully not…in a naïve way where simply accepting what a person says on face value and drawing conclusions from that…having interviewed thousands of people with similar types of experiences, and knowing the ways in which they speak about them, there’s a reservoir of clinical experience and wisdom that…one draws upon as well to inform that, as well as the research base and various interviewing techniques which assist to obtain reliable information.’

   [32] Exhibit A3 [42].

   [33] Risk for Sexual Violence Protocol.

5. When asked if he knew how many text messages there were between HMYH and his victim, Mr Newton said he was aware of a ‘repeated exchange between [HMYH] and [J1], which encompassed material that included reference to the criminal matters…including attempts on his part to modify the course of those criminal proceedings.’[34] When asked if he had actually seen the text messages, Mr Newton said he had not, because they were not provided with the letter of instruction from HMYH’s solicitor.

   [34] The text messages are at Exhibit R1, 220-278. In total nearly 80 separate messages were sent between HMYH and his victim, with the majority sent by HMYH.

6. The Tribunal determined that Mr Newton should be given an opportunity to see the text messages, as well as any other filed materials he had not seen, which may bear on his assessment. The Tribunal noted this may also require a further consultation with HMYH. The hearing was adjourned on 26 November 2019. Potential dates to resume the hearing before the end of 2019 could not be accommodated by the parties due to competing commitments. On 6 March 2020 Mr Newton provided an addendum to his initial report, which stated:

   ‘9. [HMYH] and I discussed in detail the breach of bail conditions which he had committed in January 2017. Consistent with the evidentiary material – but at odds with his earlier descriptions to me – [HMYH] acknowledged that he had sent repeated text messages to the Complainant in breach of his bail conditions. Specifically, [HMYH] acknowledged that he had sent all the messages himself. He said that while a friend had indeed suggested this course of conduct, it had been he [HMYH] who had communicated with the Complainant. [HMYH] said that his motivation for doing so had been his desire to “clarify misunderstandings about the charges”. He said that he had been particularly concerned about [a more serious allegation] (subsequently dropped) and that he had allowed these concerns to cloud his judgment. In this regard, [HMYH] said:

   I am really sorry for it. I was just focused on clearing the misunderstandings between us. It was one misunderstanding on top of another: that I had given people her number, that I got a phone call from someone else, and so on. I didn’t have a wise person to help me sort it through. I should have talked with my family or with a counsellor or sought advice online or something like that.

   10. [HMYH] went on to state that he now recognises that his conduct was deeply misguided and problematic. He said: It’s not an excuse, it’s not an excuse to break a law. I should have seen it from her perspective. To [have thought] why there was a law like that. It was there to protect her. I should have thought that it was a privilege for me to stay in the community. When I look back at the situation now, I am ashamed to have acted like this. The bail was for her protection, so that she felt safe and with my failure to comply she wouldn’t feel safe. This was the deficiencies in me that I did this.

   11. Finally, [HMYH] expressed remorse and regret for his conduct in these terms: I believe in the rules and want to follow them. This is not characteristic of me. I feel really ashamed of acting like this.

   12. I asked [HMYH] about his previous failure to discuss this matter with me in a candid fashion. In response, [HMYH] acknowledged that he had failed to disclose this material to me in our initial consultation. He explained this on two grounds. Firstly, he said that he had felt ashamed and embarrassed by his conduct and that this had left him reluctant to discuss it. He clarified that he had felt the matter was complex and that he had not been confident of being able to explain it with sufficient clarity in the time available for our consultation. Secondly, [HMYH] said that he had believed that he would be able to make full disclosure to the Tribunal at the time of his hearing and that therefore his lack of candour would have little lasting consequence.

   13. [HMYH] was provided with clear and unambiguous feedback about the gravity of such nondisclosure. He responded to this appropriately: acknowledging his wrongdoing and offering his apologies. Nevertheless, such lack of candour is noted as concerning and casts doubt on the reliability of ‘subjective’ information provided by him.

   RISK ASSESSMENT ISSUES

   14. In light of the further information about [HMYH’s] breach of bail, I have reviewed the risk assessment which I provided in my earlier report. In doing so I have carefully considered each of the elements of the RSVP risk assessment instrument that I utilised in this case and considered whether any modification of the risk assessment is necessary in light of the additional information.

   15. On the basis of this review, I would revise the scoring of one risk factor, namely “Problems with Treatment”. I would now note this as being “Uncertain” rather than absent. That is, I consider the lack of candour which [HMYH] manifested when questioned about his breach of bail to potentially pose significant challenges in a treatment framework by potentially undermining the capacity of a clinician to assess and treat relevant issues in [HMYH’s] psychological and behavioural adjustment. While [HMYH] has generally presented as open and keen to engage in psychological and other treatment and while I do not consider further offence-specific treatment to be indicated, his lack of candour raises some concern for his willingness to disclose which in turn may undermine the efficacy of future treatment.

   16. I gave specific consideration to whether [HMYH’s] failure to disclose points to a more profound problem with acceptance of responsibility which would merit the factor “Extreme minimisation or denial” being noted in his case. In the context of his broader acceptance of his culpability, his plea of guilty at an early stage, his capacity to demonstrate empathy for the Complainant, and his broader acceptance of responsibility for his conduct, I do not consider that it would be appropriate to categorise [HMYH] as manifesting this risk factor.

   17. None of the other risk factors contained on the RSVP is impacted by the additional information. Accordingly, no further change to them is made.

   18. Having reconsidered each of the factors of the RSVP and identified only one area in which any change to the scoring should be considered, I then considered whether the overall evaluation of [HMYH’s] level of risk remains accurate. That is, in light of this change, would [HMYH] now be classified as a ‘low risk’ of recidivism to sexual offending.

   19. Based on the material to hand at present and utilising a structured clinical judgment approach, I formed the view that [HMYH] would still be accurately categorised as at low risk of further offending.

   It should be noted that the designation of an individual as being at low risk is the lowest possible category on an actuarial instrument such as the RSVP. That is, there is no lower risk category into which [HMYH] could be placed.’

   (emphasis added)

7. Following resumption of the hearing on 4 May 2020, Mr Newton gave evidence and was cross-examined. His evidence can be summarised as follows:

   (a)Mr Newton adopted the addendum, advising that in ‘direct contradiction’ to what HMYH had told him at their 2019 consultation, he now accepted that ‘he had sent all the messages himself’ and was ‘less than candid’ at their first meeting. Mr Newton said the assessment tool he administered relied on a person being candid with the assessor and the explanations HMYH provided for not doing so were ‘not from a cogent or rational perspective.’ Mr Newton said HMYH’s ‘significant’ lack of candour represented a ‘breach of the assessment’ and a ’breach of trust’, undermining Mr Newton’s confidence in HMYH’s ability to discuss things that might present his conduct in an ‘unfavourable light.’ Mr Newton agreed this cast doubt on the other information provided by HMYH, leading him to question the extent to which HMYH’s other material was ‘self-serving.’ Mr Newton said he subsequently reassessed HMYH against each of the risk factors in the original report, increasing the rating for ‘Problems with treatment’ from ‘absent’ to ‘uncertain.’ When asked if it may have also been appropriate to treat the rating for ‘Problems with self-awareness’ more harshly, Mr Newton said he was more sceptical about what HMYH told him, and concerned that he continued to manifest such behaviour, but was ‘not sure it warrants a “yes” given the definition in the manual;’

   (b)When asked whether HMYH’s lacked candour was inconsistent with the rehabilitative progress he claimed, Mr Newton said this was ‘a process that’s still underway…[indicating]…a need to continue the treatment process.’ When asked what this continuing treatment involved, Mr Newton said HMYH needed to further develop his interpersonal skills, maturity, and ‘unequivocally’ accept responsibility for his actions. Mr Newton considered ‘therapeutic engagement’ would also make a ‘genuine impact on that process.’  Finally, Mr Newton opined that HMYH would benefit from engaging in a meaningful relationship that was ‘mutual, intimate, and mature,’ but which he has not yet had an opportunity to do;

   (c)When asked by the Tribunal whether HMYH’s lack of candour represented minimisation of behaviour, Mr Newton stated that HMYH did engage in minimisation and denial with respect to the breach of bail offence, but this was ‘not germane’ to the RSVP risk assessment. When asked whether HMYH’s attempts to shift blame reflected minimisation and denial, Mr Newton said this was not the meaning of this factor in the assessment tool manual; and

   (d)Mr Newton said HMYH’s interpersonal skills ‘remain good and are certainly better now’ because he had greater empathy and greater insight. He thought the self-serving comments by HMYH did not undermine that judgement. Mr Newton opined that HMYH’s principal concern in sending the text messages was his reputation and that he had been perceived as breaching standards of propriety. HMYH also had ‘difficulties letting go of the relationship,’ which contributed to him ‘pressuring’ and ‘manipulating’ J1 to have some form of continuing contact. That was despite J1 being forthright and clear that he should not be contacting her.

   HMYH’s evidence

1. HMYH adopted his statement dated 22 June 2019. He recounted his early years in India, completion of a bachelor’s degree and decision to pursue Australian post-graduate qualifications. His father was a senior accounts officer, now retired. His mother is a housewife and another sister living in India is a bank manager. HMYH said his parents expected he would open a ‘computer-related business’ in India and take care of them in their old age, because ‘if a son does not do that, it is considered the failure of his parents…[my father’s] dream was always for me to remain with him in India. He never saw me migrating permanently to Australia.’[35] HMYH now says he wants to remain in Australia on a long-term basis.[36]

   [35] Exhibit A2, 2-3 [13]-[14].

   [36] Exhibit R1, 70.

2. HMYH lived with his sister and brother-in-law after arriving in Australia. His sister is five years older and HMYH described their relationship in maternal terms: ‘My sister cares for me like a mother.’ He spoke about difficulties during his studies, including there being very few Indian students on his course, which made him feel isolated. HMYH said his studies were funded through a loan in India and a contribution from his parents, but he was expected to ‘earn something’ through work. He worked part-time delivering pizzas and undertaking ‘security jobs,’ but had few friends and felt restricted in terms of socialising and romantic relationships due to cultural expectations.

3. HMYH recalled feeling stressed because of work, language and other issues. He failed four subjects that had to be repeated at an additional cost of $18,000. He felt ashamed and only told his parents about failing two of the four subjects. HMYH said he concentrated more on his studies after this time and completed his master’s degree at the end of 2016. When asked about the extent to which his English skills were an impediment, HMYH said he was not completely fluent in English and could engage in ‘normal conversation.’ When pressed, he agreed that completing a master’s-level qualification in Australia required more than being able to engage in ‘normal conversation.’ The Tribunal notes the assessment of HMYH’s English communication skills in the evidence.[37]

   [37] Ibid, 99.

4. In approximately March 2016 HMYH recalled forming a relationship with J1 while his sister and brother-in-law were in India for a three-week visit. HMYH said they met at a club, quickly formed a romantic relationship, and then met weekly thereafter. HMYH did not tell his family about her because of Indian cultural mores prohibiting such relationships before marriage. He said his ability to meet J1 reduced after his sister and brother-in-law returned to Australia.

5. HMYH said he made it clear to J1 from the outset that their relationship would be ‘casual’ to which he claims she agreed. HMYH said J1 never met any of his friends and he never met any of hers. HMYH said J1 kept pestering him to see her, including while he was trying to concentrate on exams. He claimed to have blocked her calls on several occasions, which caused arguments. HMYH said conflict arose because of J1’s unreasonable expectations that their relationship progress. He said that periods of no contact were inevitably followed by reconciliation, including after she apologised for her inappropriate conduct.

6. HMYH described his relationship with J1 as mostly consisting of sex in cars in public places. He said J1 consented to him taking still photographs and videos of their sexual encounters, which he claimed only occurred ‘one or two or three times.’ He said none of his friends were aware of this imagery.

7. After his sister and brother-in-law relocated to Melbourne in 2016, HMYH remained to complete the last semester of his studies but resolved to join them in Melbourne thereafter. He claimed that as a result of residual feelings for J1, he resumed their relationship and saw her ‘on and off’ during October to December 2016. After completing his exams in December 2016, HMYH said he was celebrating with a few friends. He claimed to have been criticised for spending too much time exchanging texts with J1 instead of enjoying the party. HMYH said his friends took his phone away and he subsequently became too drunk to meet J1 later that evening as planned. He said that on waking the following day and retrieving his phone, he tried to resume contact, but she did not respond. When able to contact her, she expressed anger at having received a message from HMYH’s friend, who the Tribunal will refer to as “AF.” J1 accused HMYH of sharing her number with his friends, which HMYH denied. HMYH said he confronted AF, who told him he just wanted to have a conversation with J1. HMYH said he was ‘really angry’ that AF took J1’s number from his phone without permission. HMYH said he tried to contact J1 over several days to explain, but she would not listen and called him ‘untrustworthy.’

8. HMYH said it was J1’s unwillingness to let him explain himself that caused him to threaten her with publicly disclosure of the indecent images from their sexual encounters. He claimed that he only wanted to meet her ‘for coffee,’ but after she failed to respond to his first threat, he became angry. This was exacerbated by J1 telling him she had commenced a new relationship, was moving in with that person, and did not want to meet. HMYH said he sent a second threat in similar terms, after which she agreed to meet. HMYH insisted these were empty threats because he had previously deleted the imagery from his phone and ‘had no intention to do any of these things’. During cross-examination, HMYH agreed that two of the messages he sent stated:

   (a)“What if I show all videos, photos and all, to your so called boy, you sucking my dick, will he be the same?” HMYH explained he ‘was just angry’ because J1 refused to meet him and was claiming to have moved in with ‘some boy.’ He claimed to only be pretending to have the indecent images on his phone;

   (b)‘…but if you’re not meeting me before midnight, I will forward all contents to everyone I like, which includes the person you fucking now, you’re Facebook friends and all.’ Again, HMYH stated he had no intention to do so and was only pretending to have the imagery so J1 would meet him.

9. HMYH agreed these were ‘nasty threats,’ claiming ‘you become a monster in your emotions…In anger you are not who you are…’ He claimed that when he and J1 met in a ‘fruit and veg’ carpark, she was initially angry about the circumstances of their meeting and because she thought he had passed her number around to his friends. He claimed to have told J1 that he deleted the indecent images ‘three to four months ago,’ which she accepted and ‘became a bit relaxed.’ HMYH claimed J1 was no longer upset and they both became ‘emotional,’ which was followed by consensual sex in the back of the car.

10. When asked whose idea it was to have sex, HMYH said ‘we both moved…it was the emotion – we both did it…She was taking part, we were both taking part.’ HMYH agreed that J1 subsequently told police she felt compelled to have sex, but he insisted it was consensual. When asked if sex was the intended outcome of his threats to facilitate a meeting, HMYH said he did not expect that, explaining that because he didn’t have the sexual imagery, he therefore could not have asked J1 for something in return. When asked if he had said in one message to J1 ‘no kiss – no sex’ if she agreed to meet with him, HMYH said he did state this in an initial message. He also agreed his response in a police interview was: ‘She was like, no I don’t want to, then I was like, ok, let’s go backseat, then we sat, we, we started kissing each other and yeah, it happened.’[38] It was put to HMYH that his explanation about this sexual encounter seemed unlikely given the circumstances of the meeting, but he insisted that sex occurred after he ‘calmed her down’ with his explanations and they became ‘emotional.’

    [38] Ibid, 300 [28].

11. When asked why he had resorted to threats to coerce J1 into meeting him, HMYH said it was a ‘silly mistake.’ When asked if he was drunk when making these threats, HMYH said he was not intoxicated and agreed he was ‘perfectly in control’ of his conduct. He believed he had sent two threatening messages to J1. He could not understand why J1 did not trust him or allow him to ‘clarify these things with her.’ HMYH explained: ‘I just wanted to tell her it’s not me. I’ve grown up trying to keep people happy…I don’t know why I couldn’t let it go.’ HMYH said he had been with J1 for eight or nine months. It was his first relationship and he felt ‘hurt’ and ‘rejected’ that JI was breaking up the relationship. He claimed that their ‘conflict escalated to anger’ and he ‘acted out.’ The Tribunal asked HMYH why he felt hurt and rejected in circumstances where he claimed this was only ever intended to be a casual relationship, which he hid from his family, and was trying to end because of J1’s unreasonable demands and his decision, months earlier, to move to Melbourne. HMYH said he was testing whether J1 wanted to continue the relationship, but irrespective of her decision, he wanted to ‘see her face-to-face’ to explain himself and then let J1 decide.

12. HMYH said that immediately after their sexual encounter, he told J1 about intending to move to Melbourne. He said she became angry at the news, telling him: ‘My friends are right, don’t trust an Indian.’ He also claimed to have received a telephone call at this time (variously described as while they were in the car after sex or as he was walking J1 back to her car), which also elicited an angry response, with J1 accusing him of moving interstate to be with another girl. HMYH thought her comments were racist, unreasonable and asked her to leave.

13. HMYH recounted being visited by police, arrested and charged with several offences. HMYH recalled that after his police interview, he was bailed and told that he could not contact J1 and signed a bail undertaking to this effect. When asked by Mr Wood if he read the bail undertaking[39] ‘carefully or slowly,’ HMYH stated: ‘I just signed it, because that’s what most of the Indians used to do.’ When pressed whether he could remember reading the forms ‘carefully or at all,’ HMYH responded: ‘No I just signed it’ because he wanted to leave the police station. He agreed to Mr Wood’s proposition that the police had not given him any other explanation about bail conditions, except for what was contained in the transcript of his police interview.[40] HMYH said that ‘during that time I didn’t have much knowledge about these things, to be honest. So according to me, the “direct” meant, like, I cannot go in front of her directly and I cannot go to her house.’

    [39] Ibid, 212.

    [40] Ibid, 305 [44]-[47].

14. When challenged by the Tribunal about not having read a document of such consequence in detail before signing it, HMYH changed his evidence and stated: ‘I had a quick look.’ When challenged further, HMYH responded: ‘Like, it depends on what “look” means.’ When directed by the Tribunal to give a more direct answer, HMYH responded: ‘I had a – like, I know what’s written on there, then signed it…Like, yes, I had a quick look…’ When asked if he remembered reading the reference to not approaching or communicating with J1 ‘either directly or indirectly,’ HMYH stated: ‘I don’t remember at the moment…But yes I… was aware about those things.’ HMYH subsequently clarified that the police told him during the interview ‘not to contact’ J1, that he understood it was a condition of his bail not to contact her, and was ashamed he had done so. This included not being permitted to ‘go to her house or don’t post any images or send her messages from your phone.’

15. When asked if he had any contact with J1 after 31 December 2016, HMWH responded: ‘It was not me directly contacting her.’ He claimed that his friend AF sent the messages, but HMYH subsequently agreed he authored and forwarded the messages to AF by telephone, who then forwarded them to J1. HMYH’s initial claims about not directly contacting J1 appeared premised on a technical distinction about the messages not being sent directly from his phone. HMYH also submitted it was his friend AF who suggested communicating with J1 in this way. HMYH said he agreed to AF’s suggestion and on some occasions, he was at his own home and forwarded messages for AF to pass on to J1. On other occasions he was with AF at another friend’s house when the messages were sent, including occasions when he personally entered the text into AF’s phone. He agreed under cross-examination at the resumed hearing that all the messages had been written by him.

16. When asked why he had not fully disclosed his involvement in breaching his bail conditions to Mr Newton, HMYH agreed he was ‘not very open with Mr Newton at the first appointment,’ claiming to have only told Mr Newton ‘the half part,’ but did not intentionally mislead him. HMYH said he intended to ‘explain it properly’ to the Tribunal at the hearing. He said the consultation with Mr Newton was only an hour long and it was ‘a bit hard’ for him to talk about these things. HMYH said he regretted not being ‘really clear’ with Mr Newton that he ‘was the one’ and AF ‘was just helping.’ He agreed that he had also lied to police on a number of occasions by telling them it was AF who sent the texts.[41] He did so because he ‘was really worried’ and thought that if he blamed AF he ‘would be saved.’ On reflection, he now realises it was ‘stupid’ to think that. HMYH agreed false statements to police are the wrong thing to do but had ‘just said what was coming into my mind.’ When asked why the Tribunal should believe HMYH was being truthful now, some three years after his offending, HMYH said: ‘I know if I lie it’s my last chance to be in Australia.’

    [41] Ibid, 315 [40], [50]; 316 [8]; 318 [37].

17. HMYH stated he felt ‘really sorry’ and ‘shameful’ for his actions, which he deeply regretted. He realised his actions were morally wrong ‘after some days.’ He said that his second arrest for the bail breach made him realise this was a ‘bigger thing.’ He acknowledged that his treatment of J1 was ‘degrading.’ He accepted the sentencing Magistrate’s characterisation of his offending as ‘disgraceful.’ He claimed to have never sought to vary the Final Intervention Order made by the Court,[42] because he had no intention of ever contacting J1 again.

    [42] Ibid, 103-104.

18. During his time in detention HMYH said he engaged in self-reflection and undertook many online courses and self-improvement sessions. This included adding to his IT skillset by learning different programming languages such as JavaScript and HTML. He also sought support and assistance from counsellors and psychologists. When asked to provide an example of advice or a practical technique relevant to dealing with similar relationships in the future, HMYH said that previously, when he was ‘emotionally charged’ or angry, he would write and send a message immediately. Now he writes the message, waits and reflects upon it before sending. When asked if he told IHMS staff more than he had told Mr Newton, HMYH said he had. HMYH was referred to an IHMS record dated 10 May 2018, in which it states:

    ‘His close friend attempted to bring them back together for a face to face   conversation by texting his former partner. This resulted in the restraining order           being breached which resulted in [HMYH’s] visa being cancelled.’

19. HMYH disputed the accuracy of this record, claiming only to have referred to the bail conditions and not to a ‘close friend.’ He said the IHMS staff member who authored the record had ‘not understood fully’ what HMYH told him. When pressed, HMYH said the consultation was only 30 to 40 minutes, he was ashamed, and did not tell the IHMS staff member about sending the messages. Later in his evidence he said he had been truthful with the IHMS staff member but only met him on one occasion for 15 minutes and the purpose of the meeting was to assist him to be able to attend a life skills class.

20. HMYH discussed the closeness of the relationship with his sister, brother-in-law and their two young children. One of his nephews is under a year old and the other is three years old. He claims to have daily telephone conversations with his sister and three-year-old nephew. He said prior to the COVID-19 health emergency, both nephews visited him weekly in immigration detention and they ‘played together.’ When asked what role he expected to play in the lives of his nephews if allowed to remain in Australia, HMYH said he would ‘help them to learn…teach them what I have learned…help them with their studies….’ HMYH stated that if he was repatriated to India, his nephews would not ‘have any other family here…they will have no relatives to go around’.

21. HMYH’s oldest nephew was born in September 2016 while HMYH was completing his degree interstate. He initially claimed to have visited his sister and the baby ‘many times’. HMYH was asked by the Tribunal when the first visit took place and he said it was just after the child’s birth. He was unable to provide details of other visits, conceding he ‘made one visit’ to Melbourne and his sister travelled interstate with the child to visit him ‘a few times.’ HMYH said immersive involvement in his legal issues prevented further meetings with his nephew at this time. If released, he intended to live in Melbourne with his sister, brother-in-law and two nephews.

    Evidence of HMYH’s brother-in-law

22. The witness, an engineer and Australian citizen, adopted his statement dated 20 June 2019.[43] He said the only change to his statement was that his wife had another child in the second half of 2019. The witness’s evidence is summarised as follows:

    (a)The witness was head of the family and responsible for making sure HMYH stayed on the right path. He considered HMYH did not take his studies seriously and would wake him in the morning to attend class;

    (b)As ‘a teenager’ (sic) HMYH was overwhelmed by the freedoms experienced after arrival in Australia, but had since realised ‘he made some wrong decisions;’

    (c)HMYH told the witness about his offending in January 2017 over the telephone, stating he had ‘pushed the boundaries of his relationship with his girlfriend too far.’ When asked to elaborate about what HMYH told him, the witness said HMYH claimed to have had a fight with J1 because her constant demands conflicted with his desire to prioritise his studies. HMYH was ‘trying to end the relationship’ and to ‘get her off him, he threatened to distribute images…if she doesn’t let him go…The photos were never there – it was just a threat to get away from the girl…It’s a mistake he made at the time.’ In relation to the bail breach offence, the witness said HMYH ‘tried to contact the girl through a friend and by himself…and should have never done it.’ The witness said HMYH was too ashamed to tell his sister at first, and the witness had instead conveyed the news;

    (d)The witness stated he was worried about his wife’s ability to care for their (then unborn) child should there be a negative outcome at the first Tribunal hearing. She had previously suffered a miscarriage. Being able to see her brother, even in detention, has helped her deal with mental health issues. His wife saw HMYH as her ‘own child;’

    (e)HMYH has repaid their trust by taking responsibility for his life while in detention and applied himself to self development. HMYH was remorseful, and ‘a changed man’ who would handle future situations ‘in a better way.’ Prior to the COVID-19 restrictions, the witness visited HMYH weekly with his wife and children;

    (f)The witness wanted their children to grow up in a family environment with close access to HMYH, which would help them ‘learn the value of close family.’ Their oldest child is three years of age and has a good relationship with HMYH. HMYH has also interacted with their youngest child who is under one year of age; and

    (g)If HMYH was repatriated to India, the family would be devastated as they have no other family members here. The witness said the criminal case and its aftermath had taken a big emotional and financial toll on him and his wife. They had ‘lost a lot of money’ supporting HMYH and used their house deposit to fund his case. His wife was stressed as a result of HMYH’s circumstances and they had been in conflict as a result. The witness said they kept the contextual circumstances of HMYH’s detention hidden from his family in India and although they knew he was detained because of visa issues, his ‘parents don’t know what the real story is.’

    [43] Exhibit A8.

    Evidence of HMYH’s sister

1. The witness, who is a permanent Australian resident, adopted her statement dated 20 June 2019.[44] Her evidence can be summarised as follows:

   [44] Exhibit A9.

   (a)The witness confirmed she and her husband are principal carers of their children, who attend childcare. They have no other relatives and few friends in Australia;

   (b)The witness said HMYH was previously ‘like a teenager’ and she was more ‘like his mother’ than his sister. When challenged that HMYH was in his early to mid-20s on arrival in Australia and at the time of his offending, the witness said he was nevertheless ‘overwhelmed to get his freedom’ after arriving here;

   (c)The family was under financial pressure having lost their family business in 2016 and moved to Melbourne where her husband looked for work between September 2016 and early 2019. The witness and her husband had borne a heavy financial burden in supporting HMYH, whose study in Australia was funded through a loan and their parents’ savings. They used their savings to cover HMYH’s legal expenses;

   (d)Her parent’s ‘dream was for [HMYH] to get an education, maybe one day move back [to India] and marry and live with them or move to Australia themselves’. She was distressed to learn that he might end up in India with nothing and a criminal record;

   (e)At the time she first learned of HMYH’s offending from her husband, she was experiencing postnatal depression and was distressed by the news. As she and her husband tried to handle everything themselves ‘this made it even more stressful’, including the pressure of lying to her parents. She told her parents that HMYH had been involved in a fight, with no mention of a girl. That is because the ‘girlfriend thing is not accepted in Indian culture.’ She thought if her parents knew the truth, they might ‘disown HMYH,’ or the stress may cause their father to have a heart attack. Her father is retired and her remaining sibling in India is a bank manager, who lives close to their parents;

   (f)In relation to HMYH’s offending, her husband told her that HMYH was ‘stressed during his exams’ and the witness opined his offending arose ‘maybe because of exams, financial and emotional stress…He was very immature, that’s why he acted in that way.’ When asked to elaborate, the witness said J1 ‘was threatening’ HMYH about revealing their relationship, and HMYH in turn threatened disclosure of the indecent images as a retaliatory measure. The witness claimed it was a ‘fake threat’ and submitted variously ‘maybe he didn’t know what he was saying…he did not know about the law…there was no one to guide him…he was under a lot of stress and did what he thought was best to save him;’

   (g)The witness said she had ‘an extremely difficult time with [her] mental health, particularly since all of this happened’, suffering two miscarriages after struggling to get pregnant. Her postnatal depression led to the prescription of antidepressants. Her relationship with her husband suffered following HMYH’s detention and caused conflict. The witness said her husband looked after the children while she was hospitalised on one occasion;

   (h)Her husband is an only child and considers a strong and connected family to be important; ‘that is why it is so important for us to have [HMYH] with us’. She wants her children to have another strong role model in their lives in addition to her husband. She is confident HMYH has the character and maturity to fill this role;

   (i)The relationship between HMYH and her two children is close and loving. She referred to it as ‘very precious bonding’ and said she communicated with HMYH by telephone or video calls each day. She previously visited him on weekends with the children. HMYH played with them, hugged and kissed them. The witness said her children miss their uncle, having been unable to visit because of COVID-19 restrictions;

   (j)HMYH was ashamed and apologetic about his offending and had done ‘many courses’ in detention. The witness was convinced HMYH ‘won’t do unlawful things again’ and should be given another chance;

   (k)If HMYH was returned to India, the witness was concerned he would never be able to return to Australia. She was also concerned about HMYH’s prospects of comparable remuneration in India, impacting his ability to repay a study loan. The witness claimed the financial burden would become even heavier for her and her husband, because they would ‘have to send money’ to HMYH. When it was put to the witness that there is a significant computing industry in India, the witness explained she was not suggesting HMYH ‘won’t get a job,’ just that the job will ‘not be as good as in Australia;’ and

   (l)The witness said their financial circumstances were such that they could not afford to travel or go on holidays. When asked about their travel to India in 2016 and 2020, the witness said ‘it’s not that expensive’ to travel to India. She stated that she considered it would be difficult to travel when her children are in school.

   HMYH recalled to give evidence

2. HMYH was recalled and asked about inconsistencies between his evidence and that of his brother-in-law regarding the contextual circumstances of his offending. HMYH said his brother-in-law’s evidence was ‘not correct,’ claiming he ‘would have explained this thing’ correctly but said there was ‘always some kind of awkwardness’ and ‘you don’t speak with your brother-in-law openly.’ When pressed, HMYH said he could not remember what he told his brother-in-law, because he was really stressed. In response to questions from Mr Wood during re-examination, HMYH agreed he talked to his brother-in-law on more than one occasion about his offending, but ‘it never arises to talk about the circumstances.’ He said they had not had ‘a clear conversation about these things’ and he could not specifically recall what he had said.

   Other witness statements

3. In addition to the references in the G-documents, the Tribunal notes nine character references encompassing statements from a Catholic Priest, two representatives of Sikh community organisations, a former employer in the security industry, and five statements from friends of HYMH.[45] The statements from the religious representatives are very general in nature and do not disclose an understanding of the nature of HMYH’s offending. The first two relate to HMYH’s attendance at Sikh prayers and events. The third states that HMYH’s ‘interaction with a young girl was a learning time’ and that he attended weekly Catholic Mass in detention. Of the five character references from friends, four reflect awareness of his offending. One is from a person HMYH met while in custody interstate. A common theme in these letters is the out-of-character nature of HMYH’s offending, his remorse, and valued interactions with the authors. A further brief letter states that HMYH worked for a security company for ‘a few years’ and was a punctual and polite employee who ‘strived to do the best job he can.’ Another letter states HMYH worked for the author’s security company for three years prior to September 2017 and was a valued employee. There is no mention in the work-related letters about HMYH’s offending. None of the nine witnesses was called to give evidence at either this hearing or the previous hearing in June 2018.

   TRIBUNAL CONSIDERATION OF WITNESS EVIDENCE

   [45] Exhibit A5.

   HMYH’s evidence

4. Having considered the totality of HMYH’s evidence, we are unpersuaded that significant aspects were forthright or truthful. The materials in evidence contain multiple examples of inconsistency and the Tribunal is left with concerns about the extent to which he is a credible and reliable witness. Many of his responses came across as evasive, exaggerated, contradictory, self-serving, and false. By way of example:

   (a)My Newton’s updated report dated 6 March 2020 referred to HMYH’s claim at their first consultation about AF sending text messages to J1, as being ‘at odds’ with their most recent consultation, where HMYH admitted it was him who sent ‘repeated text messages to the Complainant in breach of his bail conditions.’ HMYH acknowledged failing to disclose his involvement candidly to Mr Newton, who noted it was because HMYH was embarrassed and intended to ‘make full disclosure to the Tribunal…[and]…therefore his lack of candour would have little lasting consequence.’ Mr Newton considered this lack of candour was concerning and cast doubt on the reliability of subjective information provided by HMYH;

   (b)Instead of fully disclosing the truth about the text messages during the hearing, HMYH’s lack of candour continued. He initially said: ‘it was not me directly contacting her, it was…[AF] who was sending these messages to her. Like I was writing these, but it was sent from his side.’[46] In previous submissions, it was claimed that AF ‘insisted…they should contact [J1]…and in a state of total despair and vulnerability [HMYH] regrettably followed the advice of [AF]…[HMYH] was not aware of the legal implications of contacting [J1]…Had HMYH known that his bail order would have been breached by his friend’s action, he would never have allowed [AF] to send the text message.’[47] In his March 2018 Personal Circumstances Form, HMYH stated: ‘My friend [AF] tried to mend the situation…he casually texted [J1]…this was ruled as breach of bail…I was not having any lawyer to tell me the consequences if [AF] would text her. I misjudge the bail order.’[48] When asked at the current hearing whose idea it was to send the messages, HMYH again claimed it was AF’s idea.[49] He said: ‘[AF]…called me…and he said, “Have a conversation from my phone. So I was typing from his phone;’[50]

   (c)HMYH’s evidence that it was J1 who persistently pursued him despite his efforts to end the relationship, was also unpersuasive. He variously claimed that J1 made persistent contact requests, unreasonable relationship demands, and threatened to disclose their relationship. This contrasts with the sentencing remarks, which refer only to: HMYH making videos of sexual encounters; being solely responsible for repeatedly sending the text messages; and being informed by J1 that she did not want the relationship to continue.[51] Moreover, HMYH stated during the current hearing he felt ‘hurt’ and ‘rejected’ that JI was breaking up with him. At their final meeting he offered to continue and deepen their relationship and claimed they had consensual sex despite their meeting resulting from HMYH’s threats. Mr Newton also noted in his evidence that HMYH had ‘difficulties letting go of the relationship,’ and it was he who had been ‘pressuring’ and ‘manipulating’ J1 to have some form of continuing contact. That was despite J1 being forthright and clear that he should not be contacting her. The Tribunal notes in this regard that in responding to one of HMYH’s texts, J1 stated about a month prior to the offending:

   ‘…we weren’t together we were just casually seeing each other until I started respecting myself enough to never go with u again and also I met someone who actually cares for me.’ (errors in original)

   (d)There is nothing in the Chief Magistrate’s sentencing remarks regarding J1 being manipulative and threatening. Instead His Honour used terms like ‘manipulative, threatening, disgraceful and malicious’ only in respect of HMYH’s actions.[52] It is clear from the evidence of HMYH’s brother-in-law, that his understanding of the contextual circumstances within which HMYH’s offending occurred, is misinformed. This includes a belief that it was HMYH trying to end the relationship with J1, and that the indecent images used to threaten J1 never existed. The Tribunal does not accept HMYH’s explanation that he explained these circumstances and his brother-in-law’s recollections are ‘not correct.’ It is more probable that HMYH displayed the same lack of candour in informing his brother-in-law about his conduct, as he did during his consultation with Mr Newton;

   (e)HMYH told a Tribunal hearing in September 2017 that ‘He was drunk at the time he conducted himself in that way.’[53] His representative also told the Department of Home Affairs in March 2018 that ‘in a state of intoxication he sent a text message to her stating that he will send her images to her friends if she did not meet with him.’[54] The Tribunal in June 2018 recorded his evidence as: ‘a state of intoxication led to his offending and that he was out of control.’[55] When asked at the current hearing if he was drunk when sending texts to the victim, HMYH said he was not intoxicated and was  ‘perfectly in control’ of his conduct; and

   (f)HMYH’s evidence at the hearing about the extent to which he was aware of the bail conditions came across as evasive and self-serving. It was also inconsistent with Mr Newton’s evidence that HMYH had a clear understanding that the bail conditions prohibited him from direct or indirect contact. HMYH initially said he did not read his bail undertaking, just signed it ’because that’s what most of the Indians used to do.’ When pressed, he said that he had a ‘quick look’, and eventually conceded he had read and fully understood his bail obligations. This was a persistent feature of HMYH’s evidence, leaving the Tribunal with the impression that HMYH was constantly assessing what response would present him in the best light, rather than giving honest and forthright responses.

   [46] Transcript of proceedings 26 November 2019 (“Transcript”), P39 [6].

   [47] Exhibit R1, 72.

   [48] Ibid, 87.

   [49] Transcript, P39 [46] – P40 [4].

   [50] Ibid, P44 [15].

   [51] Exhibit A1, Sentencing Remarks, 1 [2].

   [52] Sentencing remarks at [8];[10].

   [53] Exhibit R1, 187 [16].

   [54] Ibid 71.

   [55] Ibid, 9 [34].

5. The Tribunal notes that when reviewing the cancellation of HMYH’s Bridging visa in 2017, some of his evidence was similarly considered unreliable.[56] Approximately three years after his offending, HMYH’s claims about personal acceptance of responsibility, insight, remorse and rehabilitation, are diminished by his evasiveness and lack of candour on significant aspects of his evidence, which calls his credibility into question. The Tribunal considers it appropriate to treat all his evidence with caution.

   [56] Ibid, 191 [35].

6. In considering references from family members and friends, the Tribunal is mindful that they routinely provide the most positive perspective about an Applicant’s conduct. Limited weight is placed on references that are very general and do not refer to HMYH’s offending. Some weight is placed on the letters from closer friends who claim to have known HMYH for periods of up to five years.

   TRIBUNAL CONSIDERATION

   Does HMYH pass the character test?

7. The Full Court of the Federal Court of Australia has explained the nexus between the character test and Parliament’s intent, in Akpata:[57]

   The definition of a person passing the character test in s 501(6) shows that Parliament intended that persons who have been convicted of a relatively serious crime; associate with criminals; have a history including an immediate history of criminal conduct or general conduct indicating bad character; are a significant risk of engaging in criminal conduct or undesirable conduct (s 501(6)(d)), should not be permitted to travel to or remain in Australia. Shortly put, persons who have committed or are likely to commit criminal or other like conduct should not be permitted to travel to or remain in Australia. Because the purpose is to exclude those persons, the matters that are relevant to the exercise of the Minister’s discretion will include any fact or circumstance which would suggest that a person of otherwise bad character (as it is defined in the Act) should be allowed to travel to or remain in Australia.

   [57] Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65, 105 (Lander J).

8. It is worth noting that the reference to the word ‘significant’ is no longer used in conjunction with assessing risk since Akpata. Pursuant to the Direction, the grounds under s 501(6)(d)(i) of the Act ‘are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to…remain in Australia,’ would engage in criminal conduct.[58] It is insufficient to find HMYH has engaged in such conduct in the past, there must be a risk of him engaging in criminal conduct ‘in the future.’[59]

   [58] Direction, Annex A, Section 2 cl 6(2).

   [59] Ibid, cl 6(3).

   Applicant’s submissions

9. Mr Wood’s detailed closing submissions were predominantly directed to the contention that HMYH does not fail the character test. He said the ‘sole integer put in issue’ by the respondent was in respect of s 501(6)(d)(i) of the Act, which was a ‘narrow and specific question.’[60] Mr Wood also handed up the decision of the Full Court of the Federal Court of Australia in Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 (“Splendido”) as authority for how decision-makers should grapple with the issue of risk.[61] He quoted in particular the reference at [72] to the decision in RJE v Secretary to the Department of Justice [2008] VSCA 265; 21 VR 526 (“RJE”).

   [60] Citing the Tribunal’s decision in Roberts v Minister for Home Affairs [2018] AATA 3970 at [23]-[28].

   [61] Citing [71]-[78], which encompasses the Court’s reference to RJE v Secretary to the Department of Justice [2008] VSCA 265; 21 VR 256 at [26]-[36].

10. Mr Wood said Splendido ‘urges the Tribunal’ to ensure that the assessment of future risk ‘must have a rational basis.’ He said the present matter is not about whether HMYH had lied or treated women badly in the past, but was a ‘future-focussed test’ relating to the risk of HMYH engaging in criminal conduct. Mr Wood cited Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033 at [74], in which Rares J reasoned:

    The Tribunal did not make a finding about the applicant’s conduct during 2010 to 2015 by analysing whether or not it was criminal. It did not need to characterise that conduct…as criminal in order to assess whether there was a risk, in the future, that the applicant would engage in criminal conduct…The Tribunal was required under s 501(6)(d)(i) to examine the risk of the applicant’s future conduct based on her past conduct. It evaluated her past conduct of her escape and working at some time in the five-year period without expressly attributing to any of that conduct the character of it being an offence.’

11. Mr Wood conceded this was ‘not a story that shows [HMYH] in a wonderful light’ and there were features of HMYH’s conduct that could not be shied away from. He said HMYH’s credibility, considering the evidence before the Tribunal, is ‘unavoidably an issue.’ That included his inconsistent evidence about the extent to which he understood the bail conditions and responsibility for the text messages. Mr Wood conceded HMYH ‘was the mind’ behind these messages and it was to his discredit that he denied this to police and was not candid with Mr Newton. Mr Wood submitted, however, that the issues and inconsistencies falling under that concession did not undercut his submission that HMYH did not fail the character test relevant to s 501(6)(d)(i) of the Act. He referred the Tribunal to the Applicant’s Statement of Facts, Issues and Contentions (“ASFIC”), in support of the following submissions:

    (a)The applicant was immature and inexperienced in relationships before coming to Australia. He grew up, in India, in a familial environment where it was shameful to talk about relationships. He never spoke to his family about such matters;

    (b)The applicant met J1 at a club. The applicant did not tell his sister, with whom he is close, and who he lived with, about the relationship;

    (c)Not long after the relationship started, the applicant began to struggle with his studies. In his words: ‘I was attracted to [J1] but I felt like the relationship was the wrong thing for me. But I was too immature, and I didn’t know how to balance these things.’ The applicant tried to terminate the relationship, but J1 got upset with him. The relationship endured;

    (d)The applicant and J1 argued. She was upset when he did not want to meet her; he was worried about his studies. J1 threatened to tell his sister about their relationship. They broke up (or ceased seeing each other), but then resumed the relationship;

    (e)On 18 December 2016, the applicant attended a party. J1 was texting him. The applicant’s friends got angry that he was concentrating on his mobile phone and took the phone away. The next day, J1 accused the applicant of having given her number to his friend, [AF]. The applicant was upset at this accusation;

    (f)The applicant acknowledged that he and J1 ‘had developed a terrible way of interacting with one another during our relationship’. ‘She would make hollow threats to get what she wanted, and I would do the same. It was manipulative, it was bad. She would say that she was coming to my house, or that she was going to text my sister and tell her what we did together. She never did that but she would say that to show how angry and serious she was during a fight;’

    (g)It was in this context that the applicant threatened to send intimate pictures of J1 to others but did not, in fact, have any such photos on his phone, but appreciates that J1 did not know that: ‘I know that she could have believed that I would do what I said, and that was bad enough.’ Mr Wood submitted that HMYH ‘took early and appropriate responsibility’ for this conduct, albeit initially denying to police that he was responsible for the text messages to J1. Mr Wood invited the Tribunal to accept that HMYH’s motive was driven by a desire to vindicate his honour and correct J1’s mistaken belief that he shared her telephone number. He said notwithstanding the evidence about the absurdity of seeking to vindicate his honour through criminal conduct, the Tribunal ‘shouldn’t suppose that people act rationally’. It was submitted that HMYH was ‘emotionally agitated by the perceived slight’ by J1. In those circumstances, it was not implausible that HMYH engaged in conduct worse than the conduct he was trying to vindicate. It was put to Mr Wood that HMYH’s claim about being the one trying to end the relationship was implausible. Mr Wood conceded that HMYH’s persistence in contacting J1 was prohibited by bail conditions and was not to his credit;

    (h)The applicant later met J1, they were intimate, and he sought to reconcile. However, when the applicant told J1 he was moving to Melbourne, she became angry and ‘began to yell and swear. She said that her friends had been right and that Indians were untrustworthy;’

    (i)Some days later, on 31 December 2016, police came to the applicant’s house. They asked whether he made the threat he had made against her; he admitted that he had. He was arrested, handed over his phone, and was bailed;

    (j)Some days later, the applicant attended a party. His friend, [AF], approached him. The applicant was angry with [AF]. The applicant explains what happened as follows:

    ‘He [AF] obviously felt bad. He said that he would contact [J1] and explain to her that I had not given her number to him. I told him that I was not allowed to contact her directly. He said that he would make the call on my behalf. When [J1] did not pick up the call, he told me to write a message and send it to him and he would forward it to her. I agreed with this. It was stupid thing to do, and it was in breach of my bail. This was the first time I had been in trouble with the law, and I had no idea what I was doing. I did not have a lawyer and I had not told my family so they could guide me. That is how I breached my bail.’

    These events have had a profound and salutary impact on HMYH, who now recognises he not only engaged in unlawful behaviour, but that it was ‘immature, selfish and impulsive,’ for which he is remorseful;

    (k)The applicant has set out in some detail the significant education programs he has engaged in while in immigration detention;

    (l)The applicant’s behaviour in immigration detention has also been commendable. Detention authorities have referred to his ‘positive, cooperative and compliant behaviour’, and to his ‘ongoing positive attitude and cooperative behaviour;’ and

    (m)The applicant hopes the Tribunal will conclude he is a young man who has made bad mistakes in the past, but who does not pose a real risk of recidivism.

1. The Tribunal finds that:

   (a)HMYH’s serious offences have adversely affected his victim. He remains subject to an intervention order. Should he reoffend, potentially serious harm arises for other members of the Australian community;

   (b)Notwithstanding the Chief Magistrate’s decision to suspend HMYH’s sentence of imprisonment, including because of a ‘lack of criminal history and prospects of rehabilitation,’ the Tribunal adopts His Honour’s view at [10], that HMYH’s offending conduct ‘is very different to the man described in the character references and statements;’

   (c)The unresolved treatment needs for HMYH referred to by Mr Newton elevate the Tribunal’s concerns about risk of reoffending. That is particularly so when coupled with HMYH’s lack of candour, resulting in Mr Newton adjusting the rating for ‘Problems with treatment.’ It is noteworthy that Mr Newton was retained by HMYH’s solicitor to produce a medicolegal report, and HMYH was unable to be entirely truthful with someone commissioned in support of his own case. Coupled with the inconsistency and credibility issues identified earlier, we have unresolved doubts about some of Mr Newton’s assessments, notwithstanding his explanations. That is not to question his professional credentials but reflects reliance on the self-reported and, at times, unreliable claims of HMYH that even Mr Newton’s deep ‘clinical experience and wisdom’ struggled to overcome. Mr Newton’s confidence on the first day of the hearing about his ability to ‘obtain reliable information’ from HMYH was somewhat re-cast in his second report and oral evidence at the resumed hearing;

   (d)Consistent with Mr Newton’s opinion HMYH still needs to: further develop his interpersonal skills and maturity; ‘unequivocally’ accept responsibility for his actions; undertake ‘therapeutic engagement’ to make a ‘genuine impact on that process;’ and benefit from engaging in a meaningful relationship that was ‘mutual, intimate, and mature,’ but which he has not yet had an opportunity to do;

   (e)Having considered the totality of the evidence, Mr Newton’s assessment that HMYH poses a ‘low’ risk of reoffending is accepted. The Tribunal does not accept Mr Wood’s contention that HMYH constitutes a ‘remote’ or ’theoretical’ risk of recidivism; and

   (f)HMYH intends to remain in Australia and make a permanent life for himself here. It is acknowledged that the visa in question does not enable him to fulfil that aspiration, which is reliant on a successful application for a more permanent visa later. The circumstances of this case, however, are such that the Tribunal is disinclined to find that the risk posed by HMYH is any more acceptable because of the temporary nature of the visa applied for.

2. In summary, HMYH’s criminal conduct is objectively serious with potentially dire consequences if repeated. That HMYH continues to lack candour and consistency about key aspects of his offending, some three years after the event, is of considerable concern. This casts doubt on his claimed insight, remorse and rehabilitative claims. Moreover, as Mr Newton has pointed out, there are still unresolved issues for HMYH to address.

3. While the Tribunal is satisfied the likelihood of HMYH reoffending is low, the totality of the evidence, including the inconsistent and unreliable nature of key aspects of his evidence, and the unresolved issues identified by Mr Newton, are such that he constitutes a real risk of reoffending. The Tribunal does not accept that the breach of bail offence should be considered only as an aggravation of the sexual offence. It is a form of offending raising concerns about HMYH’s appreciation of his obligations under conditional liberty. The Australian community’s tolerance for any risk of future harm from HMYH would be very low, particularly given he held a limited stay visa and therefore should have no expectation about being allowed to remain in Australia. This primary consideration weighs moderately in favour of exercising the discretion to refuse his visa.

   Best interests of minor children in Australia

4. Clause 11.2 of the Direction requires that we must determine whether visa refusal is, or is not, in the best interests of relevant children. That consideration applies only if the child is, or would be, under the age of 18 years at the time the decision to refuse to grant the visa is made. Clause 11.2(4) provides:

   In considering the best interests of the child, the following factors must be considered where relevant:

   a) The nature and the 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 no 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 conduct 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 the non-citizen’s ability to maintain contact in other ways;

   e)Whether there are 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.

   Tribunal consideration: Best interests of minor children in Australia

5. HMYH has two nephews, by his sister, who are three years of age and under one year of age respectively. HMYH’s evidence is that he was studying interstate when the older child was born, and in immigration detention at the time of the younger child’s birth. It is submitted that HMYH is in frequent telephone and video contact and enjoys a strong bond with both children. The children’s parents have brought them to visit him in immigration detention, which has not been possible recently due to COVID-19 restrictions.

6. The evidence of HMYH’s sister is that she and the children share a close bond with HMYH. She and her husband value interaction with HMYH as their only direct relative in Australia and want him to play a continuing role in their children’s lives. They see HMYH as a ‘role model’ in addition to the children’s father. HMYH’s brother-in-law similarly attests to the strong relationship HMYH has with the children, who are excited to see him during visits to immigration detention and share a close bond.

7. Mr Brown submitted for the respondent that HMYH plays no parental role in the lives of his two nephews and consistent with cl 11.4(a) of the Direction, less weight is generally given in such circumstances.

   Tribunal Findings: Best interests of minor children in Australia

8. The Tribunal finds that:

   (a)HMYH was either interstate or in immigration detention when his nephews were born. His relationship with them has since been characterised by periods of absence and limited contact, which in recent years has been predominantly through weekly visits to the detention centre and telephone contact;

   (b)HMYH has not played a parental role in the lives of his nephews. The children have parents who care for them and there is no evidence that care is deficient or otherwise reliant on HMYH’s contribution;

   (c)Aspects of HMYH’s evidence about his role in his nephews’ lives came across as exaggerated. That includes his initial claim that he had seen his older nephew ‘many times’ after the child’s birth. HMYH later conceded he travelled interstate once to visit the child and his sister reciprocated on a few other occasions. In addition, the Tribunal found HMYH’s claims about the role he intended to play in the children’s lives to be general at best. He said he would help his sister look after them and: ‘help them to learn…I will teach them what I’ve learned…I will help them with their studies…I will stay with them, be with them…’;

   (d)There is undoubtedly a close and loving bond between HMYH and the oldest nephew, which is not as apparent with the younger child who is under a year old. HMYH’s sister referred to the children attending childcare and the older child commencing school soon. Moreover, the evidence of HMYH’s sister was that she was more ‘like [HMYH’s] mother’ than his sister. This was consistent with HMYH’s evidence that when living together, his sister took care of him ‘almost the same way that my mother did. She would cook for me and take care of me.’ [71] These factors diminish the force of HMYH’s submissions about the potential significance of his contribution in the home if released. The extent of any contribution may be further reduced if he were to achieve his aspiration of fulltime work;

   (e)It is accepted that HMYH’s sister and brother-in-law have no other family members in Australia and few friends. Their evidence that ‘friends are not a substitute for family’ is acknowledged, and that having HMYH close to them would likely be of comfort and assistance. It can also be accepted their children may benefit from having another close adult family member in their lives. What contribution HMYH could make in the years remaining before the children turn 18 would be undoubtedly positive;

   (f)The eldest nephew may be adversely affected if HMYH was repatriated to India and in time his younger nephew may also be affected by the absence of an uncle. There is no evidence, however, that HMYH’s sister and brother-in-law could not take the children to visit HMYH in India, or that contact could not be maintained as it has been with HMYH for most of their young lives; through video and telephone calls, and visits. The Tribunal does not accept the evidence of HMYH’s sister that they will be able to travel to India because of cost or the children’s future schooling needs. The evidence discloses that she and her husband visited India in 2016 and 2020 and will be able to do so in the future.

   [71] Exhibit A2, [26].

9. On balancing the above, the Tribunal finds that while this primary consideration weighs in favour of HMYH’s application, it does so only slightly.

   Expectations of the Australian community

10. Clause 11.3 of the Direction 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.

    Tribunal consideration: Expectations of the Australian community

11. In FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”), the Full Court of the Australian Federal Court dealt with the construction and application of cl 11.3(1) (Expectations of the Australian community). Although this case refers to the previous Direction 65, it is consistent with the wording of cl 11.3 of the current Direction. The majority in FYBR held that this primary consideration is a ‘deeming’ provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[72] As Stewart J held at [104], ‘it is not the decision-maker who makes an assessment of community values on behalf of the community’.[73] His Honour summarised the community’s expectations at [101] and [103]:

    101. Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.

    …

    103. …In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely...

    [72] FYBR at [66] per Charlesworth J; and [91] per Stewart J.

    [73] FYBR at [104] per Stewart J.

12. The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation (or, as is the case here, refusal), but that ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine.’[74] The Direction helps inform the weight a decision-maker attributes to this primary consideration. For example, cl 6.3(3) of the Direction states that non-citizens who commit serious crimes, including ‘of a violent…nature, and particularly against women or children…should generally expect to…forfeit the privilege of staying in Australia.’ Use of terms like ‘should generally’ convey discretion, and where that discretion is enlivened, judgments turn on ‘the specific circumstances of the case’ (cl 6.1(2)). The reasoning in FYBR also ‘contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors….’[75]

    [74] FYBR at [75]-[76] per Charlesworth J.

    [75] FYBR at [76] per Charlesworth J.

13. The Tribunal notes the High Court has recently handed down its decision in respect of an application for special leave to appeal against FYBR.[76] In refusing the application, the High Court held at [301]-[303], that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’

    [76] FYBR and Minister for Home Affairs [2020] HCATrans 056.

14. HMYH accepts that the Australian community has a low tolerance of the sort of criminal conduct he committed as a non-citizen, including because he has lived in Australia for a short period. Mr Wood submitted, however, that this ‘is not determinative,’ but was ‘simply a matter to be weighed by the Tribunal among others.’

15. Mr Brown submitted for the respondent that the Australian community would not expect a person who committed an offence of a sexual nature against a woman in Australia under three years ago to be granted a visa. He said such offending is viewed very seriously and this primary consideration weighs significantly in favour of affirming the visa refusal.

    Tribunal findings: Expectations of the Australian community

16. HMYH’s offending in Australia is relatively recent. It occurred in December 2016, within three years of his arrival in Australia, and was against a woman. Offences such as these have special emphasis placed on them within the Direction.[77] He subsequently breached his bail conditions, again offending against a woman. Some three years after his offending, he continues to demonstrate a lack of candour and to paraphrase Mr Newton, has failed to ‘unequivocally accept responsibility’ for his actions. That regrettable record during a relatively short stay in Australia is such that the deemed community expectation is to exercise the discretion to refuse his visa application.

    [77] Direction, 6.3(3).

17. On balance, HMYH’s offending is not ‘decisive’ to use the language of Stewart J, such that ‘refusal might be thought to be inevitable.’ Having regard for the totality of the evidence, however, the Tribunal finds this primary consideration weighs moderately in favour of exercising the discretion to refuse the visa.

    OTHER CONSIDERATIONS

18. Clause 12(1) of the Direction states:

    In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

    a)International non-refoulement obligations;

    b)Impact on family members;

    c)Impact on victims;

    d)Impact on Australian business interests.

    International non-refoulement obligations

19. The applicant did not raise any claims, nor does the evidence disclose any plausible basis to suggest he would be harmed if returned to India. Accordingly, Australia’s non-refoulement obligations are not enlivened as a relevant consideration in this matter.

    Impact on family members

20. Clause 12.2 (1) of the Direction requires consideration of:

    Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely

21. HMYH has raised and relied upon the impact of an adverse decision in this matter on his sister, his brother-in-law and his nephews. It was submitted by both parties that this factor weighs in HMYH’s favour, although they differed in relation to degree. Mr Brown submitted that while there may be some impact on his nephews, it would not be significant, and this consideration ought to be given some weight, but no more. He noted that HMYH’s offending and the consequences that followed, have already had an adverse emotional and financial impact on his sister and brother-in-law.

22. The evidence of HMYH’s sister and brother-in-law, directly addressed the impact that his removal from Australia might have upon the family. The considerations relating to HMYH’s young nephews, have been addressed separately, however their interests as part of the wider family unit are also relevant to this consideration.

23. The Tribunal accepts the evidence, particularly of HMYH’s sister, that the family is small but close, and all members want HMYH to play a continuing role in it. While the Tribunal accepts this aspiration would be ruptured if HMYH was repatriated to India, he has been in detention for a significant amount of his time in Australia. The elder nephew was also quite young when HMYH first entered detention and the younger nephew was born in 2019 while HMYH was still in detention. The Tribunal finds the submission that it will be impossible for HMYH to ever return to Australia speculative, notwithstanding uncertainty about his ability to gain a visa if his current application is unsuccessful. The Tribunal does not accept it will be particularly difficult for his sister, brother-in-law and nephews to travel to India to maintain the relationship. Such visits would nonetheless be infrequent and not allow the development and maintenance of the close relationship with HMYH they envisaged. The Tribunal does not accept HMYH’s submission, however, that he is the ‘only person to take care of my family.’[78] The evidence is that HMYH has an almost maternal relationship with his sister. His sister and brother-in-law, both professionally-qualified, are not reliant on his contribution and have instead borne a heavy financial and emotional burden themselves as a result of his conduct.

    [78] Exhibit R1, 91.

24. It is worth noting that HMYH’s sister settled in Australia permanently in or about 2014. She did so in the absence of immediate family and on the understanding that when HMYH joined her, it would be on a temporary basis to complete his postgraduate studies. The intention was he would return to India to look after their parents and pursue an IT career. HMYH’s sister knew the consequences of permanent relocation to Australia, most notably the loneliness and dislocation from close family that she clearly values. That context is relevant to her present submission that HMYH is her only close family member in Australia, although it can be accepted an adverse decision would make HMYH’s absence no less emotionally painful for the family.

1. As noted, the relationship between HMYH and his minor nephews has been addressed under the primary considerations. Nonetheless, the Tribunal accepts that the evidence demonstrates the importance all witnesses placed on the unity of their small family group.

2. On balance, the Tribunal finds this consideration weighs slightly in favour of not exercising the discretion to refuse the visa.

   Impact on victims

3. The parties submitted there was no evidence about the impact a decision to grant HMYH a visa, on the victim of his offending. This is also the Tribunal’s reading of the evidence. It follows that this consideration does not weigh in favour of or against the refusal of HMYH’s visa application.

   Impact on Australian business interests

4. Paragraph 12.4(1) of the Direction requires consideration of the:

   Impact on Australian business interests if the non-citizen’s visa application is refused, noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project or delivery of an important service in Australia.

5. There is one letter in evidence that HMYH held a team leader role in a security company he worked for between 2014 and 2017, which reflects favourably on his contribution. That evidence does not rise to a level displacing the presumption in the Direction. This consideration is given no weight.

Impact on non-resident family members

1. The list of other considerations in the Direction is non-exhaustive. Given the nature of the evidence, the Tribunal considers it should address the impact on non-resident family members as a further consideration, notwithstanding they are not Australian citizens or permanent residents. In the Respondent’s SFIC it was submitted that HMYH’s remaining family is unlikely to be impacted by visa refusal.

2. The Tribunal accepts the evidence of HMYH’s sister and brother-in-law that his parents are not aware of the full nature of his circumstances and offending. His sister referred to this causing her stress, and that HMYH’s repatriation would stop her parents travelling to Australia (the link not being explicitly stated). Her evidence also indicated that, from her parent’s perspective, HMYH’s future was uncertain: he may or may not stay in Australia after his studies were completed. The Tribunal accepts HMYH’s evidence that he aspires to remain permanently.

3. HMYH was born in India, lived there until the age of twenty-three and gained undergraduate qualifications. HMYH’s sister believes he can get a job in India but has more lucrative opportunities in Australia. This evidence arose in the context of financial obligations said to be owed by HMYH in repaying a study loan due to his father and others, as well as maintaining his living arrangements if repatriated. There is no evidence that HMYH could not leverage his undergraduate degree from India and master’s degree in Australia, both in the IT field, to find work in India. The submission that employment within the Indian IT sector may attract a lower salary than that in Australia was uncorroborated and is of limited relevance in the context of the Direction. Similarly, the evidence about HMYH’s borrowings in India, and in relation to his parent’s potential health issues and financial situation, was also sparse. Some of HMYH’s evidence in this regard has been inconsistent. In submissions provided to the Department in March 2018, it was put that HMYH’s parents were ‘elderly, in poor health and require medical treatment which [HMYH] is currently paying for. Even while in Detention, [HMYH] regularly sends money to his father in India to cover their living and medical expenses…[HMYH] took out private health insurance to ensure his parents are receiving the care they need.’[79] No independent corroborating evidence of these claims is in evidence, including from his parents. In his most recent statement, HMYH says his parents paid part of his course fee in Australia[80] and while in detention, his sister and brother-in-law ‘have had to work doubly-hard to…send back money to support my parents in India, pay back my educational loan and pay my legal fees.’ The Tribunal considers that with a sister working in India as a bank manager, coupled with the contribution from his sister and brother-in-law in Australia, and potentially through his own work and the assistance of other relatives and a previous social network to draw on in India, HMYH’s claims about the impact on non-resident family members and his capacity to re-establish himself, were unpersuasive and speculative at best.

   [79] Ibid, 74.

   [80] Exhibit A2, 4 [24].

4. The Tribunal can only speculate on how non-resident family members might be affected by HMYH’s repatriation and to what extent. That is particularly so given he had initially planned to return to India after completing his studies in Australia, and that this intention has only changed relatively recently. On balance, this consideration carries neutral weight.

   CONCLUSION

5. HMYH does not pass the character test at s 501(6)(d)(i) of the Act because there is a risk he would engage in criminal conduct in Australia. The Tribunal has acknowledged the efforts made by HMYH in detention to make productive use of his time and to learn new skills. However, the Tribunal has found that his failure to provide an open and consistent account of his past conduct casts doubt on his insight, remorse and rehabilitative claims. We have accordingly gone on to consider the exercise of the discretion enlivened under s 501(1) of the Act to refuse his visa application, by applying the considerations at Part B of the Direction to the specific circumstances of his case. In doing so we have also addressed a further consideration arising from the evidence.

6. Of the primary considerations the Tribunal has found that two weigh moderately in favour of exercising the discretion to refuse the grant of a visa (‘Protection of the Australian community,’ and ‘Expectations of the Australian community’). We have found that one weighs slightly in favour of granting the visa (‘Best interests of minor children in Australia’). Only one of the other considerations was considered to have been enlivened and weighs slightly in favour of granting the visa (‘Impact on family members’). The further consideration, ‘Impact on non-resident family members,’ weighs neutrally.

7. Family issues were a significant focus of the evidence. The Tribunal accepts that genuine reasons were advanced for maintaining a close family relationship. However, the Tribunal was not persuaded that, taken individually, the corresponding considerations justified very high weightings. Equally, those primary considerations assessed as weighing in favour of refusing the visa have been given moderate emphasis. Nonetheless, we find that these primary considerations, consistent with cl 8(4) of the Direction, deserve greater weight than the other considerations in exercising the discretion. That is particularly so given HMYH’s failure to openly and consistently embrace the nature of his conduct. He was unable to provide a direct and unvarnished account of his offending to the Tribunal some three years after the event, which is not to his credit.

8. Accordingly, the Tribunal considers that the primary considerations ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ substantially outweigh the collective weight of the considerations in favour of HMYH’s application.

   DECISION

9. The Tribunal affirms the decision under review.

I certify that the preceding 142 (one hundred and forty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC and Dr S. Fenwick, Senior Member

…………………[sgd]…………………….
Associate

Dated: 26 May 2020

Dates of hearing:	26 November 2019; 4-5 May 2020
Advocate for the Applicant:	Mr Nicholas Wood
Solicitors for the Applicant	Clothier Anderson Immigration Lawyers
Advocate for the Respondent:	Mr David Brown
Solicitors for the Respondent:	Australian Government Solicitor