KLLV and Minister for Immigration and Border Protection
[2016] AATA 896
•11 November 2016
KLLV and Minister for Immigration and Border Protection (Migration) [2016] AATA 896 (11 November 2016)
Division
GENERAL DIVISION
File Number
2016/4606
Re
KLLV
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
Decision
Tribunal Egon Fice, Senior Member
Date 11 November 2016 Place Melbourne The Tribunal affirms the decision under review.
[sgd]........................................................................
Egon Fice, Senior Member
Catchwords
IMMIGRATION AND BORDER PROTECTION – application for Student (Temporary) (Class TU) visa refused – failure to satisfy character test – applicant pleaded guilty to a sexually based offence– indecent assault – where serious risk to Australian community if applicant re-offended – effect of mental illness – where Australian community would expect application to be refused – decision affirmed.
Legislation
Crimes Act 1958 (Vic) s. 39
Migration Act 1958 (Cth) ss. 500, 501
Sentencing Act 1991 (Vic) ss. 36, 70Cases
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422Secondary Materials
Ministerial Declaration no 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Scott Morrison MP, Minister for Immigration and Border Protection)
REASONS FOR DECISION
Egon Fice, Senior Member
11 November 2016
The applicant is a citizen of India. He first came to Australia in June 2008 on a student visa. Between June 2008 and 15 March 2015 the applicant was present in Australia for a number of periods, totalling about six and a half years. He held two student visas in that period, the first expiring on 30 August 2012 and the second on 15 March 2015.
On 4 March 2015 the applicant lodged a third application for a Student (Temporary) (Class TU) Visa. The purpose for obtaining that visa was to complete his studies in a Bachelor of Business degree at Kent Institute Australia, which he commenced on 14 July 2014. He has currently been granted approved leave by Kent Institute.
On his application form, the applicant indicated he expected to incur medical costs while in Australia regarding an ongoing medical condition described as a mental illness. In addition, when answering a question which asked whether he had been convicted of a crime or any offence in any country, he responded: Yes. In answer to the question which asked that he provide details of that offence, the applicant said: Applicant has been acquitted (Community Correction Record attached). Furthermore, the applicant also answered Yes to a question which asked whether he had been acquitted of any criminal offence or other offence on the grounds of mental illness, insanity or unsoundness of mind. The answers given to the questions regarding criminal offending in Australia are incorrect. I will explain presently.
At the conclusion of the declaration section in his application is the following statement:
I understand that a student visa is a temporary visa, and that being granted a student visa will not guarantee that I will be eligible for the grant of a further visa to remain in Australia, including the skilled migration visa.
In a letter dated 18 November 2015 the Department of Immigration and Border Protection (the Department) informed the applicant of its intention to consider refusing his visa application under s. 501(1) of the Migration Act 1958 (the Migration Act). The grounds stated in the letter for possibly refusing the applicant a student visa was that the information held by the Department regarding his criminal history suggested he may not pass the character test by virtue of s. 501(6)(d) of the Migration Act.
After considering the applicant’s response provided by his migration agent, in a letter dated 22 August 2016 a delegate of the Minister for Immigration and Border Protection informed the applicant that his application for a Student (Temporary) (Class TU) visa was refused. The ground for refusal was stated as s. 501(6)(d) which, 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…
When the Minister’s representatives lodged a Statement of Facts, Issues and Contentions on 20 October 2016, the grounds upon which the Minister relied had been expanded to include s. 501(6)(c) and s. 501(6)(d)(ii) of the Migration Act. Although I was concerned by this addition at a relatively short time prior to the hearing, the applicant’s representative, who is his brother, said no objection was raised to that and that the applicant had an opportunity to respond by lodging an Amended Statement of Facts, Issues and Contentions. The relevant additional subsections provide as follows:
(6) For the purposes of this section, a person does not pass the character test if:
…
(c)having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct:
the person is not of good character; or…
And:
(d)in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would:
…
(ii) harass, molest, intimidate or stalk another person in Australia; or…
On 31 August 2016 the applicant lodged an application with the Tribunal seeking a review of the delegate’s decision to refuse to grant him a student visa. Section 500(1)(b) of the Migration Act makes provision for review of decisions of a delegate of the Minister under s. 501 by the Administrative Appeals Tribunal.
There are two matters in issue in this case. The first is whether the applicant passes the character test set out in s. 501(6) of the Migration Act. The second is, if the first question is answered in the negative, whether the discretion in s. 501(1) should be exercised so as to refuse the applicant’s student visa application.
The applicant’s criminal conduct
The applicant was charged with Indecent Assault and with Behave in indecent manner public place. Before the matter came on for hearing in the Melbourne Magistrates’ Court on 25 February 2015, on 6 February 2015 the second offence, Behave in indecent manner public place, was struck out because it had been withdrawn. As for the indecent assault charge, the applicant pleaded guilty. Both claimed offences were committed on 26 March 2014. No reason was provided for withdrawal of the second charge.
At the time of his offending, the relevant provision of the Crimes Act 1958 (Vic) provided:
39 Indecent assault
(1) A person must not commit indecent assault.
Penalty: Level 5 imprisonment (10 years maximum).
(2) A person commits indecent assault if he or she assaults another person in indecent circumstances –
(a)while being aware that the person is not consenting or might not be consenting; or
(b)while not giving any thought to whether the person is not consenting or might not be consenting.
The Victoria Police Incident Summary report regarding the indecent assault charge relevantly states:
Victim was at the Southern Cross Station between 1200 Hours and 1215 Hours on Wednesday 26/03/14 where she was indecently assaulted by an unknown male offender… Offender followed a victim up the escalators, to platforms 13 and 14 where he tried speaking to the victim for approximately 10 minutes regarding ‘Good Life Gym’. Offender then asked “can I have a hug” and immediately hugged tightly the victim before she was able to respond, also trapping her arms. He then proceeded to lean forward and try to kiss the victim while she was trying to avoid him. He was able to kiss on tile [sic] side of the month [sic] where the victim then started to raise her voice, urging him to get off her, offender then ran off towards the Collins Street exit.
In a statement which the applicant signed and dated 11 May 2015, apparently made for the purposes of explaining his offending conduct to the Department and attached to his visa application, he described the incident this way:
I threw my chewing gum in the dust bin before stepping on to the escalator. While ascending the escalator, I noticed a girl in gym clothing with the gym bag. Also, I noticed a lady who was annoyed at her gym clothing.
I thought of informing her that she may be harmed as I had just noticed a lady getting annoyed at her dressing [sic] and got her attention by introducing myself and letting her know that I needed some information about gym membership. On getting her attention, I enquired about her gym membership as I wanted to ease into a conversation. She was approachable and considerate with her response and answered my questions about the gym membership.
During the course of our conversation, I found her attractive and when we were bidding goodbye, I asked her if I could give her a good bye [sic] hug. She asked me Why I wanted to hug her. I hugged her and gave her a kiss on the right side of her face as I consider a good bye hug part of Australian culture and did not think it would offend her. However, she was very offended and taken aback by my gesture which led to police investigation.
In response to the 18 November 2015 letter from over Department informing the applicant of its intention to consider refusal of his visa application, the applicant added the following further explanation in a letter dated 16 December 2015:
I referred to the above matter and your latest correspondence in relation to the above. I want to request the case officer to consider my case, as whatever happened in relation to the incident assault was a mistake and I was not in my senses when that happens. I have already provided you with the extensive medical proofs regarding my mental health status.…
… In addition, I want to submit that at the time I was not in the full control. My medication was finished on that day and I had booked an appointment with the doctor for further prescription.
I was charged by the Victorian Police in October 2014 for indecent assault and summary offence. I plead guilty for the indecent assault to avoid further delay in the proceedings. The Court did not convict me and I am not on the sex offender list. I am on the community correction order for 18 months in order to improve my mental health issues. In my community correction order, I have to attend the meeting with the Community Correction Officer every month for mental health rehabilitation. I have to see my doctor regularly and take medication.
There is one further matter to which I should refer. The applicant did not provide a statement of evidence at any time prior to the commencement of the hearing. However, in the course of the hearing, I offered the applicant the opportunity to make a statement, believing that none of the factual matters relating to the criminal offending were in dispute. I anticipated that the matters which would be raised by the applicant would go to the exercise of discretion and not to the nature of the criminal offending. I had made it clear that the Tribunal could not go behind the judgement of the Magistrate, but that the circumstances of the offending might be taken into account in the exercise of discretion.
However, the applicant proceeded to provide a different account of the events which led to him being charged with indecent assault. I should add a caveat because his evidence was taken by video link to North West Point Immigration Detention Centre on Christmas Island, where he was in immigration detention. The video link was extraordinarily poor with an audio delay of at least, if not in excess, of about six seconds. Furthermore, there was frequent pixilation and breaks in the audio and video, which were usually followed by undecipherable rapid speech subsequently reverting to normal speed. This evidence is taken from my notes as best I could understand the applicant’s story.
The applicant described his conversation with the victim as being very amicable as the victim was looking for an offer of friendship. However, when he refused to give the victim his telephone number and, I believe, his email address, or that they have coffee together, she appeared to have a change of mind, or what he described as a mood swing. He described his conduct as not accepting friendship from the victim. He said it was her mood swing which caused her to report the incident to the police.
While the evidence to which I have referred in the preceding paragraph appears to have been put by the applicant in support of his case, there are a number of reasons why it might be seen to have the opposite effect. However, assuming it was evidence put in support of his case, arguably, it offends s. 500(6H) of the Migration Act which provides:
(6H) If:
(a)an application is made to the Tribunal for a review of a decision under section 501; and
(b)the decision relates to a person in the migration zone;
the Tribunal must not have regard to any information presented orally in support of the person’s case unless information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.
However, in cross-examination of the applicant by Mr K Powell, a solicitor representing the Minister, the applicant was asked why he had not mentioned this before. The applicant’s answer was non-responsive. He simply repeated that the victim felt bad about his refusal to form a friendship with her and that was why she went to the police. When Mr Powell asked the applicant why he then hugged and kissed her, the applicant simply said it was a friendly conversation and he now understood that it was wrong to hug and kiss a person in those circumstances. He nevertheless added it was a friendly conversation which lasted more than 15 minutes and then there was a mood swing which led to her reporting the matter to police. He believed that was triggered by his refusal to give her his phone number, email address or to have coffee with her and form a friendship.
In closing submissions, I discussed with Mr Powell the application of s. 500(6H) of the Migration Act and he had formed the view that he elicited this information from the applicant in cross-examination and therefore the decision of the High Court of Australia (French CJ, Kiefel, Bell, Keane and Nettle JJ) in Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 may apply. In that case, the existence of two additional children of the applicant first came to light in the course of cross-examination of one of the applicant’s witnesses. The Tribunal at first instance had rejected the admission of that evidence by reason of the application of s. 500(6H) of the Migration Act.
In the High Court, the Minister accepted that s. 500(6H) would not generally preclude the Tribunal from having regard to the information provided in response to questions put to a witness in cross-examination, whether by the Tribunal or by the representative of the Minister. However, the Minister argued that the general proposition regarding preclusion was subject to the qualification that any information provided to the Tribunal in support of the case of the applicant for review would be excluded by s. 500(6H) where the information could reasonably have been anticipated to be supportive of the case of the applicant at least two business days prior to the date on which the tribunal held a hearing (at 218). The plurality rejected this argument.
After examining the apparent purpose of s. 500(6H) of the Migration Act, and the Explanatory Memorandum to the Bill which led to its enactment, the plurality concluded:
The purpose of ensuring the expeditious determination of applications for review under s 500 of the Act by requiring that the Minister be given “an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing” (43), which might result from a late change to the applicant’s case, is not compromised by accepting that the preclusory effect of
s. 500(6H) is confined to information presented by or on behalf of the applicant for review in support of his or her case. Where information is adduced in cross-examination by the Minister or in response to enquiry by the Tribunal itself, it is inherently unlikely that the information is provided as part of an attempt to manipulate or delay the review process.
In my opinion, the new information and evidence given by the applicant while making an oral statement was not made by the applicant in an attempt to manipulate or delay the review process. Although it appeared to have been made in support of his case, as will become apparent presently, it is likely to have been indicative of the applicant’s mental condition brought on by a diagnosed illness. Furthermore, because it appears as a victim blaming explanation, it plainly does not support his case.
I had in evidence a number of documents dealing with the applicant’s medical condition. A report from Dr Shanthi Weerasiri, Senior Psychiatry Registrar, Mercy Mental Health, dated 11 January 2013 addressed to the applicant’s General Practitioner relevantly states:
… He was on Valproate 500 mg nocte though prescribed 500 mg bd and taking Risperidone 2 mg nocte though prescribed 3 mg nocte. In addition he was taking Lorazepam 2 mg nocte and Nitrazepam 10 mg nocte. He is currently on Risperidone 3 mg nocte and Valproate 500 mg bd and a tailing off regime of the benzodiazepines.
He was expressing frustration over not being able to be in a marital relationship with the woman he had only spoken over the phone. He called police several times and once it was to get help with renewing his contacts with this woman.…
There was concrete thinking and prominent formal thought disorder with derailment and tangentality. There were no depressive or manic symptoms currently.
He gives a history of psychosis since 2000.
There was a recent admission while he was in India because of aggression towards his parents. He was guarded and therefore it was not possible to elicit delusions. He denies harm to self or others. His insight was poor because he related his experiences to his current absent relationship and unemployment but was willing to take medication.
There was also a brief report from Dr Kirthi Kumar, a psychiatrist, dated 24 February 2014. Relevantly, the report states:
[the applicant] has schizophrenia with negative symptoms. He does not report any manic symptoms. This profile is stable but has cognitive symptoms of schizophrenia (concentration, information processing). He also has depressive themes.
Although Mr Powell submitted that the evidence did not disclose the connection between the symptoms of the applicant’s mental illness with his conduct which resulted in him being charged with indecent assault (and, strictly speaking, I accept that to be the fact); the descriptions given by Dr Weerasiri regarding prominent formal thought disorder with derailment and tangentiality; and by Dr Kumar regarding information processing are general in nature and perhaps can be expanded by reference to a medical text. Neither of those doctors was asked to give evidence at the hearing.
The American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (DSM IV) sets out in considerable detail the essential features of schizophrenia. It refers to characteristic symptoms falling into two broad categories: positive and negative. The positive symptoms include distortions in thought content (delusions), deception (hallucinations), language and thought process (disorganised speech). The text describes delusions as erroneous beliefs that usually involve misinterpretation of perceptions or experiences. It also describes bizarre delusions. Those are delusions which are clearly implausible and not understandable and do not derive from ordinary life experiences. DSM IV also refers to disorganised thinking as an important feature of schizophrenia. It describes disorganised thinking in the following way:
The person may “slip off the track” from one topic to another (“derailment” or “loose associations”); answers to questions may be obliquely related or completely unrelated (“tangentiality”); and, rarely, speech may be so severely disorganised that it is nearly incomprehensible and resembles receptive aphasia in its linguistic disorganization (“incoherence” or “word salad”).
Those symptoms I have described above, taken from DSM IV, could, reasonably, be applied to the applicant’s evidence given to the Tribunal. For example, what caused the applicant to approach the victim in the first place was the fact that he perceived a woman immediately behind the victim becoming annoyed by the fact that the victim was wearing gym clothing in a public place and he feared she may be harmed by that woman. In cross-examination, the applicant said that he would not react in the same way in the future but would call the police. He did not state any basis for his perception that the victim may be harmed by the woman who was said to be annoyed by the clothing she was wearing. Why he would resort to contacting the police in those circumstances was bizarre and unexplained.
In his statement of evidence given in chief, the applicant repeated, a number of times, that what caused the victim to complain to the police was his refusal to form a friendship with her. That is despite the fact that in cross-examination he agreed that he found the victim physically attractive. The distorted thought process is apparent. It was he that approached the victim, a person unknown to him, and started the conversation. It is, with respect, rather bizarre to conclude that the victim’s annoyance was as a consequence of his refusal to form a friendship. It could, I accept, also be seen as an attempt to simply impute some blame to the victim.
There was also his hugging the victim in such a way as to pin her arms to the side while he attempted to kiss her. The applicant described this as an Australian custom. Again, with respect, that means of greeting or saying goodbye is not an Australian custom and how he came to believe that to be the case was unexplained. Furthermore, in his cross-examination, when asked if he gave the victim a hug, he responded by saying that she gave him a hug as well. That statement is nowhere to be found in any of his prior statements or in the police report obtained from the victim. Given that the police identified the applicant by viewing the CCTV at the railway station at the time of the incident, had that been the case, it is highly likely that would have cast some doubt on the victim’s complaint. No such doubt was raised by the police report.
Read in context with the other statements he has made about the offending event, it seems reasonable to infer that the applicant’s statements are the subject of a distorted thought process and are related to his mental illness. I should also point out that although the video link with Christmas Island was seriously inadequate, the applicant, when questioned by Mr Powell, often went off onto another subject entirely. Dr Weerasiri in her report stated that the applicant displayed concrete thinking and prominent formal thought disorders with derailment and tangentiality.
Ordinarily, new evidence introduced by an applicant in the course of making an oral statement of evidence might be precluded from being admitted into evidence by s. 500(6H) of the Migration Act. I have taken what the applicant said into account, not because it assists the applicant’s case, but because it probably demonstrates the extent and nature of his disorganised thinking and distortions in thought content.
Although I had no direct evidence before me that the applicant’s mental condition was taken into account when the matter came on for hearing at the Magistrates’ Court, it may explain the guilty plea and the decision of the Magistrate not to record a conviction. It may also explain the conditions which the Magistrate attached to his Community Correction Order. The applicant appeared to be of that view in his evidence. The outcome, recorded from the Victoria Police record states:
Without conviction a Community Correction Order for 18 MONTHS.
The Offender is required to attend the WERRIBEE COMMUNITY CORRECTION CENTRE by 27/02/2015 by 4:00 PM
The order commences on 25/02/2015 with the following conditions:
Supervision
Be supervised by the Secretary. This condition starts on 25/02/2015 and goes for 18 months.
Treatment and Rehabilitation
Undergo the following treatment and rehabilitation:
– Mental health assessment and treatment as directed
– Offending behaviour program/s as directed
– Any other treatment and rehabilitation as directed:
ASSESSMENT AND TREATMENT BY THE SEX OFFENDER ADVICE AND TREATMENT SERVICE.
This condition starts on 25/02/2015 and goes for 18 months.
Although the applicant was asked in cross-examination whether he had any reports regarding completion of any treatment and rehabilitation required under his Community Correction Order, the applicant stated he did not. All that I had in evidence was a document titled Order Completion Report from Corrections Victoria confirming that, after conducting the necessary checks, the applicant’s order had been officially discharged as satisfactorily completed.
The character test
An example of the interpretation and application of the character test, which was then in terms identical to the present character test, may be found in the decision of the Full Court of the Federal Court (Davies, Lee and RD Nicholson JJ) in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422. The Court there was concerned with the application of the former s. 180A of the Migration Act which, relevantly, provided:
(1) The Minister may refuse to grant a visa or an entry permit to a person, or may cancel a valid visa or a valid entry permit that has been granted to a person if:
(a) Subsection (2) applies to the person; or
(b) ...
(2) This subsection applies to a person if the Minister:
(a) having regard to:
(i) the person’s past criminal conduct; or
(ii) the person’s general conduct;
is satisfied that the person is not of good character;...
Davies J said, at 425:
It should also be observed that the term “good character” is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual’s reputation or repute:...
Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person’s inherent qualities. I do not suggest that, in the context, “good character” refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.
In concluding, Davies J said, at 427 – 428:
The drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an applicant for a visa is of “good character” requires the exercise of a value judgment. There are no precise parameters which distinguish “good character” from “bad character”. Although, in general, “good character” can be readily recognised, in a particular case views may differ.
Lee J offered the following explanation, at 431 – 432:
Unless the terms of the Act and Regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review subjective public opinion:...
In assessing whether or not the applicant passes the character test on the grounds set out in s. 501(6)(c) and (d)(i) and (ii), there is nothing in the Migration Act which so much as suggests that account should be taken of an applicant’s mental functioning when making a character assessment. Perhaps, given that the grounds set out in subparagraph (6) generally refer to the commission of criminal conduct, it is understood that the person to whom the grounds are being applied had sufficient mental capacity to understand that the impugned the conduct was wrong. Given that the applicant pleaded guilty to the indecent assault charge, and that he was legally represented at that hearing, I should accept that he had sufficient mental capacity, at least to enter a plea.
The offence of indecent assault is a significantly serious offence which carries a maximum sentence of 10 years imprisonment. The fact that the Magistrate did not record a conviction does not mean that the offending was regarded as not being serious. The Sentencing Act 1991 (Vic) (Sentencing Act) deals with Community Correction Orders. Section 36 relevantly provides:
Purpose of an order
(1) The purpose of a community correction order is to provide a community-based sentence it may be used for a wide range of offending behaviours having regard to an addressing the circumstances of the offender.…
I should also mention s. 70 of the Sentencing Act which relevantly provides:
(1) An order may be made under this Division –
(a)to provide for the rehabilitation of an offended by allowing the sentence to be served in the community unsupervised;
(b)to take account of the trivial, technical or minor nature of the offence committed;
(ba) to allow for the offender to demonstrate his or her remorse in a manner agreed to by the court;
(c)to allow for circumstances in which it is inappropriate to record a conviction;
(d)to allow for circumstances in which it is inappropriate to inflict any punishment other than a normal punishment;
(e)to allow for the existence of other extenuating or exceptional circumstances that justify the court showing mercy to an offender.
Mr Powell submitted that a Community Corrections Order for a period of 18 months indicated a degree of seriousness of offending. I accept that submission. It is not a trivial sentence or a sentence which would probably be given for trivial or technical offences.
Mr Powell also referred to Annexure A of Direction No. 65 (the Ministerial Direction) made by the then Minister for Immigration and Border Protection, Mr Scott Morrison, on 22 December 2014. Section 499 of the Migration Act deals with Ministerial Directions. Relevantly, it provides:
499 Minister may give directions
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those function; or
(b)the exercise of those powers.
…
(2A) A person or body must comply with the direction under subsection (1).
Clause 5 of the Ministerial Direction states that Annexure A provides direction on the application of the character test set out in s. 501(6) of the Migration Act. Section 2 of Annexure A deals with the application of the character test. Clause 5 of Section 2 deals with the grounds set out in s. 501 (6)(c)(i) and (ii). Relevant to this case are the following subclauses:
…
(2) The concepts of criminal conduct and general conduct are not mutually exclusive. Conduct can be both general and criminal at the same time or it may be either general or criminal conduct…
(3) In considering whether a person is not of good character, all the relevant circumstances of the particular case are to be taken into account to obtain a complete picture of the person’s character.
The applicant in this matter had only one offence on his criminal record which is that referred to above. Furthermore, according to the applicant’s oral evidence, some three days after he completed his Community Corrections Order, he was taken into immigration detention and transferred to Christmas Island. There was no evidence of the applicant having misbehaved in any way since he committed the indecent assault.
Mr Powell submitted that while the applicant’s mental health condition may be a relevant factor to consider when regarding the character test, there was no direct independent medical evidence before me as to how, and to what extent, if any, connection existed between his mental health condition and his offending. At best, as I have described above, it is based on inferences. He therefore submitted that the applicant’s mental health condition should not be seen to reduce the applicant’s culpability for the offence. He also submitted that the statements made by the applicant regarding the event itself indicated a lack of remorse and insight into his offending. He also noted that the applicant’s account of the incident was inconsistent with the account given to the police by the victim.
With respect to Mr Powell, I find it difficult not to conclude that, on the balance of probabilities, there was a significant relationship between the applicant’s offending and his mental condition. The thought process of the applicant in the course of giving his oral evidence points strongly to that conclusion. That is also the case for the way in which the applicant attempted to present the facts relating to the incident from his perspective.
Nevertheless, I agree with Mr Powell’s submission that is mental health condition cannot reduce his culpability for the offending. That is because there was no evidence that the applicant’s mental state was such that he was not fit to stand trial, if a trial had proceeded as opposed to his plea of guilty. In fact given the conditions attached to his Community Corrections Order, it is reasonable to infer that his mental condition was taken into account in making that order following his guilty plea.
However, I cannot accept Mr Powell’s submission that the applicant’s single criminal offence and general conduct reveals a lack of good character. I find it is not possible, given the applicant’s mental condition, to come to any conclusion regarding his character. Character is usually assessed in accordance with behaviour expected from persons with normal or at least near normal mental functioning. I have found that not be the applicant’s case. That also most likely explains the applicant’s lack of remorse and lack of insight into his offending behaviour.
Furthermore, I had in evidence the statement made by the applicant’s brother; a statement from a person who has known the applicant since childhood and a statement from a student welfare counsellor at the college where the applicant studied. Each of those witness statements spoke positively of his character and that his guilty plea in respect of the indecent assault was very out of character for the applicant. It follows I find that the grounds set out in s. 501(6)(c) have not been made out.
As for the grounds set out in s. 501(6)(d)(i) and (ii), I find that they uphold the Minister’s contention that the applicant does not pass the character test. That is because an applicant does not pass the character test if there is a risk that the person would engage in criminal conduct in Australia; or harass, molest, intimidate or stalk another person in Australia. The degree of risk is not qualified as it was previously in that subsection, referring to a significant risk. In other words, as long as the risk is real and not fanciful or remote, then the subsection is engaged.
Given the applicant’s mental illness, and the fact that there was no evidence that medication provided complete control over his behaviour; or that with the passage of time, the condition would ameliorate, it is foreseeable that a real risk remains that the applicant may commit a similar criminal act. In fact Dr Weerasiri in her report, which was made in January 2013, referred to a recent admission (I assume to a psychiatric facility) while he was overseas because of aggression towards his parents. She also described his insight as poor, relating his negative experiences to his current absent relationship (with, I believe, a woman) and his unemployment even though he was willing to take medication.
Annexure A of the Ministerial Direction states that the reference to criminal conduct in
s. 501(6)(d)(i) of the Migration Act must be read as requiring there to be a risk of the person engaging in conduct for which a criminal conviction could be recorded. Given the absence of evidence of a mental condition which would preclude a conviction, this subsection is relevant. It also refers to conduct which would reasonably cause an individual to be severely apprehensive, fearful, alarmed or distressed regarding the person’s behaviour or alleged behaviour towards the individual or any other individual. Plainly, the victim of the applicant’s offending must have been severely apprehensive, fearful, alarmed and probably distressed regarding the applicant’s behaviour to have reported it to the police. I have no doubt that should the behaviour be repeated, a victim of that behaviour would have a similar response.
Having found that the applicant does not pass the character test, the discretion granted to the Minister in s. 501(1) of the Migration Act is enlivened. Accordingly, I am required to determine whether the Tribunal on review, standing in the shoes of the Minister, should find that the decision to refuse to grant to the applicant a student visa was the preferable decision.
The exercise of discretion
As is stated in the Preamble to the Ministerial Direction, the objective of the Migration Act is to regulate, in the national interest, the coming into and presence in Australia of
non-citizens. Accordingly, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test.
Clause 6.3 of the Ministerial Direction sets out the principles which must be applied in determining whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Relevantly, they provide as follows:
(1)… 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 forfeit the privilege of staying in, Australia.
…
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants and 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.
As is stated at clause 7 of the Ministerial Direction, the Tribunal 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 relevant for Visa applicants. It establishes three primary considerations which must be taken into account and for other considerations which must be taken into account if relevant.
Clause 8(3) of the Ministerial Direction provides 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 the visa. Clause 8(4) provides that primary considerations should generally be given greater weight than other considerations while clause 8(5) states that one or more primary considerations may outweigh other primary considerations.
Primary considerations
Clause 11 of the Ministerial Direction sets out the primary considerations as follows:
(1) In deciding whether to refuse a non-citizen’s visa, the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
The applicant has no minor children in Australia and therefore subclause (1)(b) is inapplicable.
Protection of the Australian community
There are a number of factors which I must take into account when regarding this consideration. They include the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. As Mr Powell submitted, the following matters are relevant to the applicant’s case:
(a)the principle that violent and/or sexual crimes are viewed seriously; and
(b)the sentence imposed by the courts for a crime.
There can be no doubt about the fact that the applicant’s offending must be regarded as serious. He pleaded guilty to indecent assault. That conduct was of sufficient concern to the victim for her to have reported it to the police. While the sexual connotation which is required to establish the offence of indecent assault may derive directly from the area of body contact which resulted in the carrying out of the assault, in this case, that did not occur. However, as the Victorian Supreme Court of Appeal noted in the case R v RL [2009] VSCA 95 at [9], where an assault is not such as to unequivocally offer a sexual connotation, it may nevertheless constitute an indecent assault if accompanied by an intention on the part of the assailant thereby to obtain sexual gratification. It is that aspect of the offence which is of concern in this matter.
Although no conviction was recorded, the sentence imposed by the Magistrates’ Court was a Community Corrections Order for a period of 18 months. That is not an insignificant sentence. In this case, it appears to be directed at addressing the particular circumstances of the applicant, which included him undergoing treatment and rehabilitation by the sex offender advice and treatment service and mental health assessment.
There can be no question that the applicant’s offending was of a serious nature, requiring him to undergo treatment, presumably on the basis that some mental incapacity or illness was causally connected. Other than a broad statement indicating that the applicant had undergone and completed the Community Corrections Order in accordance with its terms, I did not have in evidence a report indicating whether the treatment was effective and what the underlying mental assessment may have been. That remains a serious concern. It supports the Minister’s contention that the visa should be refused.
The relevant factors which I must take into account when considering the risk to the Australian community should the applicant reoffend, are as follows:
1. Whether the non-citizen represents an unacceptable risk of harm to individuals in the Australian community having regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases;
2. That Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to or remain permanently in Australia;
3. In considering the risks of the Australian community, I must have regard to, cumulatively:
a. the nature of the harm to individuals or the Australian community if the non-citizen engages in further criminal serious conduct; and
b. the likelihood of the non-citizen engaging in further criminal or serious conduct taking into account:
i.information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
ii.evidence of any rehabilitation achieved by the time of the decision…
4. The risk of harm in the context of the purpose of the intended stay and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.
Given the lack of any direct evidence regarding the risk of re-offending, particularly because I did not have before me any report directed at that subject, the best I can say about this factor is that as long as the applicant suffers from schizophrenia, there will always remain a risk that the medication will either be inadequate or will not have been taken regularly. Even if the medication is taken as prescribed, I had no evidence before me which supports the contention that the kind of behaviour manifested by the applicant in the course of his offending is unlikely to be repeated. Perhaps even more significantly, given that the applicant has in the past exhibited aggression towards his parents, and in 2013 gave Dr Weerasiri a history of psychosis commencing in 2000, the applicant’s prognosis must necessarily be treated cautiously. In addition, from the evidence given by the applicant in the course of the hearing, it is readily apparent that he lacks insight into the seriousness and nature of his offending. Therefore, I cannot be reasonably satisfied that his conduct would not progress to more serious forms of sexual assault.
I am also mindful of the fact that what the applicant now seeks is a short-term visa in order to complete his studies. Although I did not have evidence of precisely how long it would take him to complete those studies, from his course record, it appears that he will need at least one year. Although the applicant has stated that upon completion of studies, he would be returning to his home country, even a stay for a 12 month period would, in my opinion, cause the Australian community considerable concern.
Although the applicant gave evidence of having done charitable work in the course of completing his Community Corrections Order, while that may count as a contribution to the Australian community, it was under compulsion and also for a very short period of time. I am not of the view that such a contribution would improve the tolerance of the Australian community for the applicant to remain in Australia while completing his study course.
There was no evidence before me on the hearing of this matter which would indicate that the applicant could not complete those studies in his home country if he were minded to do so. His brother, who appeared on his behalf, only expressed concern about whether some of the units of study completed in Australia would be credited if he were to continue his studies in his home country. I do not consider that concern to carry much weight as far as this application is concerned.
Expectations of the Australian community
Clause 11.3 of the Ministerial Direction states that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached or there is an unacceptable risk that they will breach Australian laws, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the offence is such that the Australian community would expect that the person not be granted a visa. I must take into account the Government’s views in this respect.
The nature of the offence committed by the applicant, being sexual in nature, makes it a serious offence. While the applicant has not been convicted of the sexual offence, he did plead guilty to conduct constituting indecent assault. Although the Magistrate gave no explanation as to why no conviction was recorded, given the mental illness from which the applicant clearly suffers, that may provide an explanation. No purpose would be served in a custodial sentence. The applicant needs careful medical attention, not incarceration. The difficult question which I am required to answer is whether in the applicant’s circumstances, having regard to the risk of offending which arises at least in part from his mental state, the Australian community would expect that he would not be granted a visa. The difficulty in this case is that the applicant’s mental illness may place at risk innocent members of the Australian community. That risk is real and not fanciful or speculative. Without expert evidence regarding the applicant’s risk of re-offending or a possible escalation in the nature of his offending precipitated by his medical condition, it is difficult not to come to the conclusion that the Australian community would probably expect his visa application be refused.
Other considerations
It is not apparent to me that any other matters must be considered in this application. The applicant’s brother here in Australia has permanent residency, it being granted in 2011. Before coming to Australia, the applicant’s brother completed tertiary education in the USA and worked there for several years as a software engineer. While the applicant’s brother said in evidence that he generally looked after the applicant and they lived together, there was no evidence that he would suffer any hardship if the applicant’s visa application were refused. The applicant’s father continues to reside in his home country. The only detriment which the applicant might suffer if he were returned to the country of his origin would arise if he were not given credits for the units of his tertiary education completed in Australia. There was no evidence that would or would not occur.
Conclusions
Both of the relevant primary considerations in this matter weigh against a student visa being granted to the applicant. Were the visa granted, it is not possible to say with any confidence that the applicant does not pose a risk to the Australian community. Similarly, it is not possible to say that there is no risk of the applicant re-offending or, for that matter, escalating the nature of his re-offending. His mental illness appears to be the cause of the considerable difficulty he has in interacting in an acceptable manner with strangers. He appears to be quite unaware of the inappropriateness of that conduct, other than having said he would not repeat what he did on the occasion of his arrest. The course of this illness is impossible to predict and I had no expert medical evidence before me which might allow a different conclusion. In these circumstances, I find the Australian community would not accept that the applicant’s risk of offending had abated and, accordingly, would expect his visa application be refused.
The fact that his mental illness is likely to have been a significant factor in the commission of the indecent assault has caused me some difficulty in arriving at the final conclusion. The problem is that while the illness would undoubtedly elicit some sympathy for the applicant’s unfortunate position, the fact that this illness may cause harm to innocent members of the Australian community causes me to find that the decision of the delegate of the Minister made on 22 August 2016 was the preferable decision. I affirm that decision.
75. I certify that the preceding 74 (seventy‑four) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member
[sgd].....................................................
Associate
Dated 11 November 2016
Date of hearing
2 November 2016
Advocate for the Respondent
Mr Ken Powell
Solicitors for the Respondent Clayton Utz
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