Kayo Rerekura v Minister for Home Affairs (Migration)
[2019] AATA 153
•15 February 2019
Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153 (15 February 2019)
Division:GENERAL DIVISION
File Number: 2018/6925
Re:Thornton Guy Kayo Rerekura
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:15 February 2019
Place:Perth
The Tribunal sets aside the decision of the delegate of the Respondent made on 26 November 2018 refusing to grant the Applicant a Bridging E (Class WE) visa (Bridging visa) and remits the matter to the Respondent for reconsideration with a direction that the Applicant passes the character test for the purposes of s 501(1) of the Migration Act 1958 (Cth).
..........[sgd]..............................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – Migration Act 1958 (Cth) – bridging visa – is the Tribunal satisfied that the Applicant passes the character test – whether a person would engage in the conduct identified in ss 501(6)(d)(i) and 501(6)(d)(ii) – Direction no. 65 – Annex A – application of the character test –– criminal charges in Australia not yet finalised – withdrawn charges – decision under review set aside and remitted with direction
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 43(1)
Migration Act 1958 (Cth) – ss 116(1)(e), 499, 499(1), 499(2A), 500(1)(b), 501, 501(1), 501(6), 501(6)(d)(i), 501(6)(d)(ii), 501F
CASES
Bushell v Repatriation Commission (1992) 175 CLR 408; (1992) 29 ALD 1
CMHV and Director-General of Security and Minister for Foreign Affairs [2017] AATA 1547
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Gong v Minister for Immigration and Border Protection (2016) 309 FLR 151; [2016] FCCA 561
QZGZ and Minister for Home Affairs [2018] AATA 3683
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Yao v Minister for Immigration and Border Protection (2014) 140 ALD 21; [2014] FCAFC 17SECONDARY MATERIALS
Minister for Immigration and Border Protection, Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Department of Immigration and Border Protection, 22 December 2014) – paras 6.2, 6.3, 7(1)(a), 8(1), 8(3), 8(4), 8(5), Part B, 11(1), 12(1) and Annex A; Annex A – Section 1 – paras (4) and (4)b); Annex A – Section 2 – paras 6, 6(2) and 6(3)
REASONS FOR DECISION
Deputy President Boyle
15 February 2019
THE APPLICATION
The Applicant seeks review of a decision of a delegate of the Respondent made on 26 November 2018 refusing to grant the Applicant a Bridging E (Class WE) visa (Bridging visa) (R2, G11). The Delegate:
(a)was not satisfied that the Applicant passed the character test, by virtue of
s 501(6)(d)(i) of the Migration Act 1958 (Cth) (the Act); and(b)exercised discretion to refuse to grant the applicant a Bridging visa, having regard to the considerations in Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Department of Immigration and Border Protection, 22 December 2014) (Direction no. 65).
Section 500(1)(b) of the Act gives jurisdiction to the Tribunal to review the decision. The Tribunal is “under a duty to arrive at the correct or preferable decision in the case before it according to the material before it” (Bushell v Repatriation Commission (1992) 175 CLR 408; (1992) 29 ALD 1 (7 October 1992) per Brennan J at [3]). In so doing, it may exercise all the powers and discretions conferred upon the initial decision-maker; and may affirm, vary, or set aside the decision under review, and in the latter case substitute the decision or remit the matter for reconsideration (s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth)).
THE ISSUES
The Respondent (Respondent’s SFIC, R1 at para. 4) identifies the issues as follows:
…whether:
a.the applicant satisfies the character test; and
b.if not, whether the applicant’s application for a Bridging visa should be refused.
The Applicant’s SFIC (A1 at paras. 2 and 3) expresses the issues in different language, as follows:
2.…The first issue for the Tribunal to decide is whether Mr Kaio Rerekura’s criminal history to date is evidence of more than a minimal or remote risk that he will engage in criminal conduct if allowed to remain in Australia. If the Tribunal decides that it does not, then the second issue falls away.
3.The second issue for the Tribunal to decide is whether the discretion to refuse Mr Kaio Rerekura a Bridging E visa ought to be exercised…
While expressed differently, the effect of the parties’ respective descriptions of the issues gives rise to the same exercise having to be undertaken by the Tribunal.
BACKGROUND
The Applicant was born in August 1994 in Rawene, New Zealand. He is a citizen of New Zealand.
The Applicant first arrived in Australia in June 2000 with his parents, two sisters and a brother. He went to primary school in New South Wales until 2004 when he and his family moved back to New Zealand. He moved back to Australia in August 2013 and has lived in Western Australia since April 2016.
On 5 December 2016 the Applicant was granted a Class TY subclass 444 Special Category visa.
On 11 October 2017 the Applicant was convicted of damaging property. He was fined $200.00, ordered to pay $188.00 in costs and granted a spent conviction (R2, G13 at 409).
In February 2018 the Applicant’s daughter was born (R2, G22 at 464; G24 at 478-486) to his former partner.
On 2 May 2018 the Applicant became involved in an argument with his former partner. Police were called and he was charged with the following offences (A1 at para. 12):
Offence Provision Threaten to Kill S 338B(a) of the Criminal Code Aggravated Common Assault S 333(1)(a) of the Criminal Code Criminal Damage S 44(1)(b) of the Criminal Code Possession of a firearm S 19(1)(c) of the Firearms Act Possession of ammunition S 19(1)(c) of the Firearms Act
On 2 July 2018 the Applicant’s Class TY subclass 444 Special Category visa was cancelled under s 116(1)(e)(ii) of the Act (R2, G19) on the basis of the offences that the Applicant was charged with on 2 May 2018. On this basis it was considered that the Applicant’s continued presence in Australia may pose a risk to the safety of an individual or individuals, specifically his former partner (R2, G19 at 427)
On 3 July 2018 the Applicant lodged an application for the Bridging visa (R2, G3).
On 6 July 2018 the Applicant sought review of the decision to cancel his Class TY subclass 444 Special Category visa in the Tribunal (R2, G4 at 50). Those Tribunal proceedings remain ongoing.
On 12 July 2018 the Department issued the Applicant with a notice of intention to consider refusal under s 501(1) of the Act (R2, G8 at 64). The Applicant’s representatives provided submissions on 7 August 2018 (R2, G9) and various supporting documents and references.
On 26 November 2018 the delegate of the Respondent refused to grant the Applicant the Bridging visa under s 501(1) of the Act (R2, G11). The Applicant, through his representative, was notified of the delegate’s decision on the same day.
On 27 November 2018 the Applicant filed the application in the Tribunal for review of the delegate’s decision (R2, G2).
On 10 December 2018 the State of Western Australia sought to discontinue the “Threaten to Kill charge” arising out of the 2 May 2018 incident (R4, transcript of Magistrates Court proceedings on 10 December 2018) as a result of which that charge was dismissed for want of prosecution (R5). The Director of Public Prosecutions advised by letter dated 30 January 2019 (A7) that the State discontinued the charge because “[a]fter an assessment of the materials provided by police, the State considered that there were no reasonable prospects of conviction in relation to that charge”.
On 23 January 2019 the Applicant pleaded guilty to the “unlicensed person possess firearm” charge and the “unlicensed person possess ammunition” charge (R5 at 14).
LEGAL FRAMEWORK
Section 501(1) of the Act provides:
(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
Section 501(6) of the Act relevantly provides:
(6)For the purposes of this section, a person does not pass the character test if:
…
(d)in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia;…
(Original emphasis.)
In the present case the delegate’s decision relied only on the Applicant failing the character test under s 501(6)(d)(i) of the Act. At the hearing, however, the Respondent’s counsel advised that the Respondent would also be relying on s 501(6)(d)(ii) of the Act to argue that the Applicant did not pass the character test. Noting that while no reliance had been placed on that subsection in the decision under review or the Respondent’s SFIC, counsel for the Applicant advised that the Respondent only now raising s 501(6)(d)(ii) of the Act would not pose a difficulty for the Applicant (Transcript at 4-5).
The role of the Tribunal in such a review is to determine for itself what is the correct or preferable decision: Shi v Migration Agents Registration Authority (2008) 235 CLR 286 (Shi). The Tribunal is not limited to reviewing the Minister for Home Affairs’, or in this case the delegate’s, decision for legal or other error, but rather conducts its own de novo assessment and determination of the matter. Its role is “‘to do over again’ what the original decision maker did”: see Yao v Minister for Immigration and Border Protection (2014) 140 ALD 21; [2014] FCAFC 17 at [41] per Perry J (White and Wigney JJ agreeing), referring to Shi at [100] (per Hayne and Heydon JJ) and at [37] (per Kirby J). See also Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 and reference to that case in CMHV and Director-General of Security and Minister for Foreign Affairs [2017] AATA 1547 at [37]. It is, therefore open to the Respondent to rely on s 501(6)(d)(ii) of the Act in these proceedings.
Ministerial Direction no. 65
Section 499(1) of the Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Section 499(2A) of the Act states that “[a] person or body must comply with a direction under subsection (1).”
On 22 December 2014 the Minister for Immigration and Border Protection made Direction no. 65 under s 499 of the Act.
Paragraph 6.2 of Direction no. 65 provides general guidance as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction no. 65 sets out principles which must be taken into account by persons making decisions relating to the grant or cancellation of visas as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1)(a) of Direction no. 65 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.” Part B is the relevant part of Direction no. 65 in the present case as it contains the considerations relevant to the refusal of a visa application. Paragraph 8(1) of Direction no. 65 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.
If it is determined that the Applicant does not pass the character test, then the three primary considerations in paragraph 11(1) of Direction no. 65 must be applied to the specific circumstances of his case. They are:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
Paragraph 12(1) of Direction no. 65 requires that other considerations which are to be taken into account in deciding whether to refuse a visa, include (but are not limited to):
a) International non-refoulement obligations;
b) Impact on family members;
c) Impact on victims;
d) Impact on Australian business interests.
Paragraph 8(3) of Direction no. 65 states that “Both primary and other considerations may weigh in favour of, or against, refusal...of a visa.” Paragraph 8(4) of Direction no. 65 states that “Primary considerations should generally be given greater weight than the other considerations.” Paragraph 8(5) of Direction no. 65 states that “One or more primary considerations may outweigh other primary considerations”.
Annex A to Direction no. 65 (Annex A) provides direction on the application of the character test set out in s 501(6) of the Act.
THE HEARING
The application was heard on 5 February 2019. The Applicant was represented by Mr Glenister and the Respondent was represented by Mr French.
The Applicant gave evidence. The Applicant’s mother and father, both of whom gave witness statements in the form of statutory declarations (A5 and A6), were available at the hearing to give evidence. The Applicant’s counsel advised that their evidence would be limited to confirming the truth and accuracy of their respective written statements. Counsel for the Respondent advised that he did not intend to cross-examine either of the parents. Accordingly, as the lodged witness statements were not going to be challenged, neither of the Applicant’s parents was called. Counsel for the Respondent had indicated the same stance in relation to the statement given by a former employer of the Applicant (A2). That statement was to the effect that the Applicant had worked for her previously, that he had always worked well and that she would employ the Applicant as a labourer in her plastering business.
No witnesses were called by the Respondent. The Respondent had advised prior to the hearing that the Applicant’s former partner, the mother of the Applicant’s infant child and the person involved in the 2 May 2018 incident (see [11] above) would be giving evidence. At the commencement of the hearing counsel for the Respondent advised that the Respondent would not be calling her to give evidence.
The following documents were tendered:
·Applicant’s Statement of Facts, Issues and Contentions dated 15 January 2019 (Exhibit A1);
·letter from the former employer of the Applicant dated 30 January 2019 (Exhibit A2);
·Statutory Declaration of the Applicant signed January 2019 (Exhibit A3);
·electronic individual tax return lodgement declaration form for 2018 financial year (Exhibit A4);
·Statutory Declaration of the Applicant’s father signed 30 January 2019 (Exhibit A5);
·Statutory Declaration of the Applicant’s mother signed 30 January 2019 (Exhibit A6);
·letter from the Department of Public Prosecutions dated 30 January 2019 (Exhibit A7);
·Respondent’s Statement of Facts, Issues and Contentions dated 25 January 2019 (Exhibit R1);
·G-Documents, G1-G29 (Exhibit R2);
·summons material from the Western Australian Police Force (Exhibit R3);
·summons material from Perth Magistrates Court (Exhibit R4); and
·further summons material from Perth Magistrates Court (Exhibit R5).
Further written submissions on two specific issues were also provided by the parties on
8 February 2019. The first issue was how, if at all, a decision on the current application relating to the Bridging visa would affect the other application that the Applicant has in the Tribunal relating to the cancellation of his Class TY subclass 444 Special Category visa given s 501F of the Act. The second issue was whether it is open to the Tribunal to remit the matter with a direction that the application for the visa be reconsidered once the current criminal charges had been dealt with by the court. Because of the Tribunal’s decision herein it is unnecessary to consider those issues.
CONSIDERATION
Does the Applicant pass the character test?
As noted above, although the delegate’s decision relied only on s 501(6)(d)(i) of the Act in finding that the Applicant did not pass the character test, the Respondent now also asserts that the Applicant does not pass the character test for the purposes of
s 501(6)(d)(ii) of the Act. The Respondent does not identify particular conduct or evidence upon which he relies to establish that there is a risk of the Applicant engaging in criminal conduct for the purposes of s 501(6)(d)(i) of the Act and that upon which he relies to establish that there is a risk that the Applicant will harass, molest, intimidate or stalk another person for the purposes of s 501(6)(d)(ii) of the Act. Presumably the Respondent’s argument is that the evidence of the Applicant’s prior conduct, including the Applicant’s convictions and the charges which he faces, establish the requisite risk of the Applicant engaging in criminal conduct and the requisite risk of the Applicant harassing, molesting, intimidating or stalking another person.Similarly, the Respondent does not identify in his SFIC or in the submissions made at the hearing the “other person” who is at risk of being harassed, molested, intimidated or stalked. While the Respondent’s SFIC claims that “the applicant has reportedly threatened to harm people with a firearm on multiple occasions and has breached a family violence restraining order” (Respondent’s SFIC, R1 at para. 29) the Tribunal assumes that the “[an]other person” for the purposes of s 501(6)(d)(ii) is his former partner. No other person is identified by the Respondent.
Paragraphs 26 to 30 of the Respondent’s SFIC identify the circumstances upon which the Respondent relies to establish that there is a risk of the Applicant engaging in the conduct identified in ss 501(6)(d)(i) and 501(6)(d)(ii). The Respondent submits:
26.On 11 October 2017, the applicant was charged in relation to an offence that occurred on 6 March 2017 wherein he attended the house of the victim, whom had sold his partner three rims, and became aggressive towards the victim and pushed the rims over causing damage (see documents produced under summons from the Perth Magistrates Court).
27.On 2 May 2018, the police were called to the house of the applicant and his ex-partner after his ex-partner’s sister received a text message stating “call police donestic (sic) gun involved”. The applicant is alleged to have had an argument with his ex-partner in relation to her diet during which he smashed a bowl on the floor and stated “this is done” before packing his belongings, as well as their baby’s belongings, into the car. The applicant pushed his ex-partner, scratching her before threatening to shoot her. The applicant then followed her into the kitchen, grabbed her phone from her and threw it on the ground, he then picked it up and threw it a second time causing the screen to smash. The applicant then allegedly wrapped the shotgun in a blanket and put it into the car. The police were called and the firearm was located in the car and ammunition found in the closet.
28.Relevantly, the applicant does not deny:
a.Having a domestic dispute with his ex-partner on 2 May 2018 and breaking a plate during that dispute (G21/461).
b.Possession of the shotgun (see page 23 of the documents produced under summons from the Western Australia police and G23/472).
29.Furthermore, the applicant has been assessed as being at risk of intent to harm his ex-partner and commit acts of violence towards others, albeit low (G21). It is also pertinent that the applicant has reportedly threatened to harm people with a firearm on multiple occasions and has breached a family violence restraining order (see summons documents from the Western Australia police). This information was not before the psychologist at the time of her assessment.
30.On this basis, the Tribunal can be satisfied that the applicant has engaged in conduct of character concern and that the risk of him engaging in further such behaviour is greater than “minimal or remote”. Accordingly, the Tribunal should conclude that the threshold issue of risk has been made out.
Clearly the most serious conduct identified by the Respondent is the Applicant’s threat to shoot his former partner. That threat is denied by the Applicant and, as noted above, the charge relating to that claimed threat was withdrawn by the police in December 2018 on the basis that there was “no reasonable prospects of conviction in relation to that charge” (A7). Accordingly, the total of the evidence upon which the Respondent relies to establish the requisite risk of the Applicant engaging in criminal conduct and/or harassing, molesting, intimidating or stalking someone is (R2, G13):
(a)his spent conviction for damaging a vehicle rim;
(b)allegations of breaches of a violence restraining order that do not appear to have ever been prosecuted (contained in material summonsed from the Commissioner of Police);
(c)the pending charges in relation to the incident with his former partner (assault and damage to a mobile phone).
(d)the convictions for unlicensed person being in possession of a firearm and ammunition; and
(e)(presumably) the allegation of the threat to kill that is no longer being prosecuted.
The issue for the Tribunal to determine is whether, based on the Applicant’s prior conduct, there is a risk that the Applicant “would … engage in criminal conduct” (s 501(6)(d)(i) of the Act) or “would …harass, molest, intimidate or stalk another person” (s 501(6)(d)(ii) of the Act). The evidence must suggest “that there is more than a minimal or remote chance that the person…would engage in [the] conduct specified” (Annex A, Section 2, para. 6(2) of Direction no. 65).
Paragraph 27 of the Respondent’s SFIC quoted at [41] above relies on the allegation that the Applicant threatened to shoot his former partner. That allegation is still relied on by the Respondent notwithstanding that the police withdrew the relevant charge, clearly the most serious charge that the Applicant faced and upon which his application for the Bridging visa was refused (R2, G11 at 400). What probative value should be given to unproved charges and the withdrawn charge in assessing the likelihood that the Applicant would engage in the conduct identified in ss 501(6)(d)(i) and 501(6)(d)(ii) of the Act?
Guidance on how prior conduct, including criminal behaviour, is to be assessed in determining whether a person would engage in the conduct identified in ss 501(6)(d)(i) and 501(6)(d)(ii) of the Act is provided in Annex A, Section 2 of Direction no. 65.
Paragraph 6 in Section 2 of Annex A of Direction no. 65 relevantly provides:
6 Risk in regards to future conduct (section 501(6)(d))
(1)A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would engage in any of the conduct specified in section 501(6)(d) of the Act. The types of conduct specified are discussed below.
(2)The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.
(3)It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.
6.1Risk of engaging in criminal conduct in Australia (section 501(6)(d)(i))
(1)A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person will engage in criminal conduct in Australia.
(2)The reference to criminal conduct must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded.
6.2Risk of harassing, molesting, intimidating or stalking another person in Australia (section 501(6)(d)(ii))
(1)A person will 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 harass, molest, intimidate or stalk another person in Australia.
(2)‘Harassment’, ‘molestation’ ‘intimidation’ and ‘stalking’ are to be given their ordinary meaning. Section 501(11) of the Act clarifies the scope of conduct amounting to harassment or molestation. Conduct and behaviours that may fall under this category include, but are not limited to, the following:
a) conduct that could be construed as harassment or intimidation (whether or not it breaches the terms of an Apprehended or Domestic Violence (or similar) Order);
b) conduct that potentially places children in danger, such as unwelcome and/or inappropriate approaches, including, but not limited to, approaches made through electronic media; or
c) conduct that would reasonably cause an individual to be severely apprehensive, fearful, alarmed or distressed regarding the person’s behaviour or alleged behaviour towards the individual, any other individual, or in relation to their property or that of any other individual.
What the above provisions of Direction no. 65 make clear is that the prior conduct identified by the Respondent, general and criminal, must indicate more than a minimal or remote chance that the Applicant would engage in the identified conduct. Paragraph 6(3) in Section 2 of Annex A of Direction no. 65 (see [46] above) directs that “[i]t is not sufficient to find that the person has engaged in [the] conduct”.
In the case of the most serious of the Applicant’s alleged conduct in the context of considering ss 501(6)(d)(i) and 501(6)(d)(ii) of the Act, namely the threat to kill, the Tribunal is not satisfied on the evidence that the Applicant engaged in the conduct relied on by the Respondent, let alone satisfied that there is a risk that he will engage in that or similar conduct in the future.
The Federal Circuit Court considered the inferences that may be drawn from the fact that a visa holder has been charged with a criminal offence in Gong v Minister for Immigration and Border Protection (2016) 309 FLR 151; [2016] FCCA 561 (Gong). The question considered by the court was whether any such inference is sufficient to give rise to the power to cancel a person’s visa under section 116(1)(e) of the Act. While the issue before this Tribunal is the refusal to grant a visa under s 501 of the Act, the reasoning in Gong is apposite to the present matter. In Gong, Judge Smith held at [55]: “I do not think that the mere fact that charges have been laid gives rise to any inference that there was a reasonable basis for those charges.”
In QZGZ and Minister for Home Affairs [2018] AATA 3683 Senior Member Nikolic, having cited the above passage from Gong, said at [46]:
… But the fact that a charge has been laid by police, who currently appear to be progressing a brief of evidence to trial, requires weight to be given to the existence of that charge. The seriousness of the charges, even though they are unproven, must also be considered in that regard. That is because the consequences arising from the risk of such conduct occurring in the future, if the criminal charge is eventually proven, may be both serious and unacceptable to the community.
In the present case, of course, the police are not progressing the threat to kill charge to trial. What weight then should be given to unresolved charges, particularly a charge that has been dropped? An indication of the weight that should be given to unproved charges is contained in paragraph (4) of Section 1 of Annex A in Direction no. 65. It, relevantly, provides:
(4)In considering a person with unresolved criminal matters, decision-makers should note:
a)Where a person already fails the character test, any other outstanding criminal matters would not generally prevent consideration of their case under section 501;
b)A person who does not already fail the character test, and is the subject of criminal charges in Australia, which have not yet been finalised before the relevant court, would not generally be considered under section 501 until the charges have been finally determined;
…
The policy behind subparagraph (4)b) of section 1 of Annex A in Direction no. 65 is obvious. A person charged with an offence is entitled to the presumption of innocence and a fair trial. The direction is also, presumably, aimed at avoiding the issue that has arisen in the present case, namely that a charge, in this case clearly the most serious of the charges, is withdrawn. The implication of paragraph (4)b) is that little weight should be given to unproved charges because generally they are not to be considered until the charges have been finally determined.
The answer to the question of what weight should be given to a charge that has been withdrawn is, in the Tribunal’s view, little or no weight. The fact that the police having charged someone and then withdrawn the charge simply means that at one time the police believed that there were grounds to charge the Applicant but no longer believe that there are reasonable prospects of a conviction. That is not to say, however, that the alleged conduct on which the charge was based is not relevant, provided of course that it can be shown that the conduct occurred.
The Applicant denies that he threatened to shoot his former partner. He was cross-examined at some length. His former partner was not called to give evidence. There are two hand-written statements apparently made by the Applicant’s former partner included in the documents produced under summons by the Western Australian Police (R3 at 48-62). In one of those statements the Applicant’s former partner says:
22.Thornton walked up to me with the gun in his right hand and holding the baby in his left arm.
23.He lifted the gun up, pushed the barrel against my forehead and said ‘if you don’t move I will shoot you’.
24.I said it’s not even loaded and he said it was.
25.Thornton lowered the gun.
The Applicant’s former partner was not called by the Respondent and her version of events was not tested by cross-examination. Even on her own statement, the Applicant’s
former partner apparently did not feel any real threat as she knew the gun was not loaded. The Applicant did give evidence and denied that he had threatened his former partner as claimed, or at all. He was only asked one question in cross-examination about the claim that he had threatened his former partner with a gun. That was as follows (Transcript at 35):
[Mr French]: And … [the Applicant’s former partner] has made the same allegation against you in this case, she says that on 2 May with the actual shotgun, you held it up to her head and said that – threatened to kill her. That’s what she said in her police statement?
[Applicant]: No sir.
[Mr French]: Didn’t she – you deny it – I accept you deny it but I’m just saying that you know that … [the Applicant’s former partner] has also made that – a similar allegation?
[Applicant]: … [the Applicant’s former partner] also knew about the last case as well.
The Applicant presented as a truthful witness whose story surrounding the events of
2 May 2018 were consistent and plausible. His version of events was not tested in cross-examination. The Tribunal prefers the Applicant’s evidence in relation to the claim that he threatened his former partner with a shotgun. In effect we have, on the one hand, the evidence of the Applicant, given under oath, that the incident as claimed by the Applicant’s former partner simply did not happen, and on the other hand two hand-written statements apparently made by the Applicant’s former partner. These statements could not be tested. Given that the Applicant’s former partner was not called the Tribunal does not even know whether the Applicant’s former partner still maintains her version of events of that night.
The other conduct on which the Respondent relies to establish a requisite risk that the Applicant would engage in criminal conduct or would harass, molest, intimidate or stalk a person is the conviction for damage to the wheel rim, the conviction for unlicensed possession of firearm/ammunition and that “the applicant has reportedly threatened to harm people with a firearm on multiple occasions and has breached a family violence restraining order” (Respondent’s SFIC, R1 at para. 29). The Respondent also points to the assessment of psychologist, Heidi Smith in her report of 6 August 2018 (R2, G21) that the Applicant “has a low risk of violence” as indicating that the Applicant is a risk “albeit low” (Respondent’s SFIC, R1 at para. 29).
As with the Applicant’s former partner’s claim that the Applicant threatened her with a gun, the allegations that the Applicant breached a family violence order could not be tested in any meaningful way and no witnesses were called by the Respondent to substantiate any threat made by the Applicant. Although the Respondent’s assertion is that the Applicant has breached a violence restraining order and cited the documents summonsed from the Western Australian Police (Respondent’s SFIC, R1 at para. 29) the Tribunal can find no reference in the summonsed documents to support this claim. In cross-examination the Applicant explained that a violence restraining order had been taken out without his knowledge and he denied that he had ever threatened the partner of a former girlfriend. The restraining order was, in any event, revoked (R3 at 96). There is no evidence on which the Tribunal could reasonably rely to establish that the Applicant threatened the partner of a former girlfriend.
There is no disputing that the Applicant has the convictions for the damage to the wheel rim and the unlicensed possession of firearm and ammunition. The unlicensed possession of the firearm and the ammunition is a serious offence. The Applicant explained that the gun and the ammunition were not his but that he was holding them for a friend who had returned to New Zealand. The Applicant’s evidence was that he had never used the gun (Transcript at 30). There was no evidence to suggest that either of those claims by the Applicant were not true. The gun and ammunition were confiscated by the police.
In relation to the damage to the car rim, statements of the person who sold the rims to the Applicant’s former partner (his then partner) and a friend of that person were included in the documents produced by the Western Australian Police under summons. Claims are made in the statement of the seller of the wheel rim that the Applicant made threats, in particular he claimed that the Applicant had said the he would “get his gun and shoot him”. These claims were denied by the Applicant. The seller of the wheel rims and his friend who gave a statement were not called. Their versions of the events as set out in their witness statements could not be tested. The Applicant was not charged in relation to these claimed threats. They have never been tested. The only offence arising out of this episode was the unlawful damage to a wheel rim for which the Applicant received a spent conviction.
The only other “conduct” to which the Respondent points to establish that the Applicant would engage in the conduct identified in ss 501(6)(d)(i) and/or 501(6)(d)(ii) of the Act are the charges of unlawful assault and wilfully damaging the mobile phone. These two charges are to be heard in March 2019. The Applicant has pleaded not guilty to both. He denies that he scratched his former partner as claimed by the police or that he wilfully damaged his former partner’s mobile phone, which he says was damaged when she dropped it while she was hitting him (Transcript at 44). While any assault on a woman is a serious offence, the circumstances of this assault, even if the police version is accepted, put it very much at the lower end of the scale of seriousness. Similarly, even if one were to accept the police version of events and not the Applicant’s version in relation to the damage to the mobile phone, it is not a serious offence.
In relation to both of the outstanding charges, the Applicant’s version of what happened on 2 May 2018 is the only version that has been tested in this hearing. Again, in the absence of any evidence contradicting the Applicant’s version of events given under oath there is no reason to disbelieve the Applicant.
In relation to these pending charges the Tribunal also refers to the comments above about the weight to be given to unresolved charges and paragraph (4)b) of Section 1 of Annex A in Direction no. 65.
The final piece of evidence identified by the Respondent to establish that the Applicant would engage in the conduct described in ss 501(6)(d)(i) and 501(6)(d)(ii) of the Act is the statement of the psychologist, Ms Smith’s report of 6 August 2018 that the Applicant posed a risk, albeit a low one (R2, G21). In fairness, the report, read as a whole, is indicative of the Applicant being of no more than a minimal or remote risk of engaging in the conduct described in ss 501(6)(d)(i) and 501(6)(d)(ii) of the Act. Ms Smith in her report said:
23. Antisocial behaviour (possessing firearm) and conflictual intimate relationships were partially supported risk factors for the violence risk assessment. Mr Rerekura’s stable employment, lack of trauma history, no prior substance use, lack of mental health disorders and low violent attitudes were protective factors. Mr Rerekura had good insight, no violent ideation or intent, emotinal [sic] stability and no symptoms of major mental disorder.
24.Mr Rerekura showed good insight into his behaviour as he had initially self-referred to counselling for anger management counselling. He attended one assessment session where he denied anger towards his ex partner … Mr Rerekura denied intent to harm … Based on Mr Rerekura’s statement, anger and provocation inventory results Mr Rerekura is not at risk of harming …
25. In making a violence risk assessment the spent conviction findings for “wilful property damage 2017)” was considered in addition to the not guilty pleas to “threaten to kill”, “common assault” and “criminal damage or destruction of property”. The possession of the unlicensed firearm was also considered. Mr Rerekura no longer has access to the fire arm [sic] it has since been removed from his possession by the police.
26. Mr Rerekura has admitted to breaking a plate in the domestic dispute (May 2018) with his ex-partner and was also awarded a spent conviction for wilful property damage (by way of pushing over a rim to cause a scratch) for the 24th April 2017 charges.
27. The violence risk assessment indicates that Mr Rerekura has a low risk of violence.
In the Tribunal’s view, the Respondent’s arguments have the fault identified in paragraph 6(3) of Section 2 of Annex A in Direction no. 65. What the Respondent has done is to identify past conduct, or in a number of cases just alleged conduct, without any identification or development of the factors that would indicate that the past criminal conduct would be repeated or which would otherwise indicate that the Applicant “would engage in the future in the specified conduct”. While past conduct is obviously an indicator of likely future conduct if it points to a predilection for or disposition to the commission of certain offences, a disregard of the law, a pattern of repeat offending or a character or personality flaw, as paragraph 6(3) of Section 2 of Annex A in Direction no. 65 directs, the mere commission of offences or offending conduct in the past is not, of itself, sufficient.
In the absence of any identification of factors, characteristics or circumstances of the offences and conduct which indicate that the Applicant would engage in that conduct in the future, there is nothing to indicate to the Tribunal that there is more than a minimal or remote chance that the Applicant would engage in the conduct referred to in
ss 501(6)(d)(i) and 501(6)(d)(ii) of the Act. The nature and severity of the offending, the relative infrequency of the offending, the circumstances in which the previous offending occurred and the conduct of the Applicant since the last offence do not indicate to the Tribunal that there is the required risk of the Applicant engaging in the relevant conduct if he were to be granted a visa.
Insofar as the Applicant’s history may show that he may have anger management issues, something that was put to him in cross-examination (Transcript at 31-33), the Applicant’s evidence was that he has undertaken anger management counselling (Transcript at 31). His evidence was also that he would not do anything that would prejudice his contact with his daughter and his ongoing involvement in her life (A3 paras. 34-37). The Tribunal accepts that the Applicant understands that if he were to commit any offence if he were to be granted a Bridging visa, this would mean the end of his contact with his daughter.
The Tribunal is not satisfied on the balance of probabilities that, if the Applicant were to be granted a bridging visa, there is more than a minimal or remote chance that the Applicant would engage in the conduct identified in ss 501(6)(d)(i) and/or 501(6)(d)(ii) of the Act. Accordingly, the Tribunal finds that the Applicant does satisfy the character test. Having so found it is not necessary to consider whether the discretion under s 501(1) of the Act to refuse the Bridging visa should be exercised.
DECISION
The Tribunal sets aside the decision of the delegate of the Respondent made on 26 November 2018 refusing to grant the Applicant a Bridging E (Class WE) visa and remits the matter to the Respondent for reconsideration with a direction that the Applicant passes the character test for the purposes of s 501(1) of the Migration Act 1958 (Cth).
I certify that the preceding 69 (sixty -nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
....[sgd]....................................................................
Associate
Dated: 15 February 2019
Date of hearing: 5 February 2019 Applicant: In Person Representative for the Applicant: Mr H Glenister Solicitors for the Applicant: Cathal Smith Legal Pty Ltd Counsel for the Respondent: Mr R French Representative for the Respondent: Ms E Tattersall Solicitors for the Respondent: Sparke Helmore
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