Kumar and Minister for Immigration and Border Protection (Migration)

Kumar and Minister for Immigration and Border Protection (Migration) [2017] AATA 802 (2 May 2017)
Division:GENERAL DIVISION
File Number: 2017/1119
Re:Parnod Kumar
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Senior Member T. Tavoularis
Date:2 May 2017
Date of written reasons: 2 June 2017
Place:Brisbane

The decision under review is affirmed.
..........................[sgd].........................................
Senior Member T. Tavoularis
CATCHWORDS
MIGRATION – visa refusal – Applicant is a citizen of India – Applicant applied for a bridging visa – s 501 character test – where applicant was convicted of grooming children under the age of 16 – whether discretion to refuse visa should be exercised – discretion to refuse Applicant’s visa should be exercised – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 501(1), 501(6)(a), 501(7)(c), 499
SECONDARY MATERIALS
Direction No 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Senior Member T. Tavoularis
2 June 2017

This is an application for review of a decision of the delegate for the Minister for Immigration and Border Protection (“the Minister”) to refuse Mr Parnod Kumar (“the applicant”) a Bridging Visa E pursuant to section 501(1) of the Migration Act 1958 (Cth) (“the Act”).
Under section 501(1)(b) of the Act, this Tribunal has jurisdiction to review the decision of the Minister’s delegate.
BACKGROUND
The applicant is a citizen of India. At the date of the hearing, he was 22 years old.[1] He first arrived in Australia on 25 January 2014 as the holder of a student (Temporary) (Class TU) visa.
[1] Respondent’s Statement of Facts, Issues and Contentions, [4].
On 19 December 2015, the applicant was charged with:
(a)grooming child under 16 years with intent to procure engagement in a sexual act;
(b)using internet to procure children under 16 years and intentionally meeting or going to meet child; and
(c)grooming child under 16 years with intent to expose indecent matter.[2]
[2] Exhibit 5, Queensland Court Outcomes, p 2.
The applicant was held in custody from 19 December 2015 to 31 May 2016 awaiting sentencing.[3] On 19 August 2016, his student visa was cancelled and he was moved to immigration detention.[4] He has been held in detention ever since.
[3] Ibid, p 1.
[4] Exhibit 1, G Documents, G 13, p 77.
On 25 October 2016, the applicant pled guilty to “using internet to procure children under 16 years and intentionally meeting or going to meet child” and was sentenced to a term of imprisonment of 15 months which was suspended for 165 days.[5]
[5] Ibid.
On 4 December 2016, the applicant lodged an application for a bridging visa.[6] On 14 December 2016, the applicant was issued a notice of intention to consider refusal in relation to this bridging visa.[7] On 17 February 2017, a delegate of the Minister made a decision refusing to grant bridging visa under section 501(1) of the Act. Notification of this decision was given to the applicant on 20 February 2017.[8] On 27 February 2017, the applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of that visa refusal decision.[9]
[6] Ibid, G 4, p 15.
[7] Ibid, G 4, pp 17-18.
[8] Ibid, G 9, pp 26-39.
[9] Ibid, G 2, pp 3-14.
ISSUES
The delegate of the Minister’s decision to refuse the applicant’s visa was made on the grounds that the applicant did not pass the character test pursuant to sections 501(6)(a) and (7)(c) of the Act.
In my review of that decision I must consider and address both of the following issues:
(a)Whether the applicant passes the character test as defined in section 501(6) of the Act; and
(b)Whether having regard to the considerations in Ministerial Direction No. 65 (“the Direction”), the discretion in section 501(1) of the Act to refuse the applicant’s visa should be exercised.
Issue 1 – Does the applicant pass the character test?
During the hearing, the applicant did not seem to dispute the Minister’s contention that he does not pass the character test. However, for the sake of completeness of these reasons I will briefly address the character issue here.
The applicant’s criminal history
The applicant understands and accepts he has been convicted of the offences which were listed in his Criminal History.[10]
[10] Listed in Exhibit 5, Queensland Court Outcomes, p 1.
By way of summary, those offences include using the internet to procure children under 16 years and intentionally meeting or going to meet a child on 19 December 2015. For these offences he was sentenced by the Brisbane District Court on 25 October 2016 as follows:
(a)A conviction was recorded and he was sentenced to a period of imprisonment for 15 months, such period to be suspended for 18 months after serving 165 days; and
(b)There was also a declaration that time spent in pre-sentence custody be deemed as time already served under this sentence, that is that the 165 days he spent in custody between 19 December 2015 and 31 May 2016.[11]
[11] Exhibit 1, G Documents, G 13, pp76-78.
Section 501(6) of the Act provides a number of circumstances in which someone does not pass the character test. Most relevant here is section 501(6)(a) under which a person does not pass the character test if the person has a substantial criminal record as defined in section 501(7).
Section 501(7) specifies that for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. The relevant period is 12 months or more.
The wording of that provision is clear: It relates to the sentence imposed by a Court, not the amount of time a person has actually served. It is initially necessary to review and consider the applicant’s criminal history, the totality of any sentences for terms of imprisonment and his pattern of behaviour to ascertain whether he is not of good character as anticipated by section 501(6) of the Act.
As mentioned above, although suspended after 165 days, the applicant has been sentenced to a total of 15 months imprisonment. The applicant therefore has a substantial criminal history within the meaning of section 501(7)(c) and subsequently does not pass the character test pursuant to section 501(6)(a) of the Act.
Issue 2 - Whether the discretion under section 501(1) of the Act should be exercised to refuse the applicant’s visa?
Legislative Framework
In considering whether to exercise a discretion in section 501(1) of the Act, the Tribunal is bound in accordance with section 499(2A) to comply with the Direction.
The Direction provides guidance for decision makers on how to exercise the discretion. Relevantly, it 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.[12]
[12] The Direction, paragraph 7(1)(a).
The Direction requires that any exercise of the discretion in section 501 is to be informed by the principles appearing in paragraph 6.3. Briefly stated, they are summarised 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…
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… should generally be expected to be denied the privilege of coming to, or 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 future risk of similar conduct in the future is unacceptable...
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 time...
6. Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding unlimited stay visa, reflecting that there should be no expectation that such people 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 to 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.
The considerations relevant to refusing a non-citizen’s visa application appear in Part B of the Direction. Paragraph 11 of the Direction provides three primary considerations that the Tribunal must take into account. They are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Paragraph 8.1 of the Direction provides that decision makers must take into account the primary and other considerations relevant to the individual case.
The other considerations which must be taken into account are provided in a non-exhaustive list in Paragraph 12 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims;
(d)Impact on Australian business interests.
I will now turn to a consideration of primary consideration (a) which is the protection of the Australian community from criminal or other serious conduct.
Primary consideration A
The first of the primary considerations involves an assessment of the protection of the Australian community from serious criminal conduct of the type presently before the Tribunal.
A decision maker can have regard to two factors in making this assessment. First, one must look at the nature and seriousness of the applicant’s conduct to date. Second, a decision maker must assess the risk to the Australian community should the applicant commit or otherwise engage in the same or similar criminal activity.[13]
[13] The Direction, paragraph 11.1(1).
I turn firstly to the nature and seriousness of the conduct. To his credit, this applicant readily conceded that his conduct was indeed serious. At the hearing, I sought to make sure that he understood the relative seriousness and catastrophic consequences of his offending compared to a mere physical altercation between him and a young man of similar physical stature. He clearly understood that this type of offending struck at the heart of what the Australian community regards as serious and unacceptable conduct. The applicant sought to dispel that accepted level of seriousness by expressing remorse and volunteering to a punishment in his words “ten times worse” than what he was sentenced to on 25 October 2016 for his most recent offending.
I accept the respondent’s contentions that terms of imprisonment are clearly sentences of last resort. This is especially the case where an offender is of a youthful age with no criminal history. There can be little or no doubt of the objective seriousness of the offending in the eyes of the Court that sentenced him; indeed, the sentencing Judge himself repeatedly remarked that the offence was “serious”.[14]
[14] Exhibit 1, G Documents, G 13, p 77.
It is contended by the respondent that this applicant has demonstrated limited remorse for his offending. I am inclined to agree with that contention.
At the hearing, the applicant’s expression of remorse was, in my view, tepid and self-serving. The legal and procedural reality of his criminal matter indicates otherwise. He purported to maintain his innocence from December 2015 until at least August 2016. He told the hearing before me that he if took the charge to a hearing before a Judge and jury, it was very likely he would have received a more severe sentence compared to pleading guilty and deriving the benefit of a relatively early plea, plus the further benefit of some presentence custodial time. I therefore do not consider that this mitigates the seriousness of the applicant’s offending.
I turn now to the second aspect of assessment of primary consideration (a) which involves ascertaining the level of risk to the Australian community represented by this applicant’s conduct. Specifically, I am to have regard to the principle that the Australian community’s tolerance of any risk of future harm becomes lower as the seriousness of the potential harm increases.
This applicant’s conduct involved a concerted, deliberate and purposeful approach to an internet encounter with a minor. There was nothing accidental about his conduct. He did not meet someone at a social facility and become mistaken about the other person’s age.
This was an intentional escapade with a person he wanted to be a minor, and further to that, to follow through with an internet induced sexual encounter with a minor. This is, to my mind, sexual offending at its virtual worst and almost beyond explanation or excuse.
The question is whether the Tribunal can be reasonably convinced that this applicant will not again reoffend.
I am not so convinced for a number of reasons. The applicant seems devoid of any career objective or trajectory. There is no evidence before me of any completed training or other course to which he can return, were he to be released back into the community.
The relationship with his asserted girlfriend, Ms Chand, is less than convincing in terms of whether there is any actual relationship to speak of or whether she would be able to support him.
I have misgivings about how we would even be able to support himself, were he to come out of detention. At the hearing, the applicant said that if he is released, he will be reliant on his friends, comprising, amongst others, the list of people who provided references for financial support.
I have significant misgivings about that and I am inclined to the view that should he be released, the applicant will be left to his own devices and as a result, is more likely than not, to again revisit the quite serious and dangerous web-based territory that got him to into various serious trouble in the first place.
I see no diversionary imperative in his life, be it in the form of a course of study or qualification or a job or any other requirement around being responsible for the financial support of a family unit, to lead me to think otherwise.
On this basis, I think the applicant represents an unreasonable risk of reoffending.
At the hearing, the applicant spoke of some type of counselling or similar course he has undertaken whilst in detention with Mark Mann. Mr Mann’s letter is more descriptive than informative. He talks about the applicant having contributed narrative to a certain group discussion. He also said that the applicant has consistently contributed and that the applicant can identify where he can make changes in his life.[15]
[15] Exhibit 2H.
In my view, this evidence is a long way short of any type of any proper forensically-based psychiatric analysis of how and why an otherwise healthy and able-bodied 22 year old man was unable to control an urge to become engaged in an intimate sexual encounter with a minor on a deliberate and premeditated basis. While that issue remains unexplained and unresolved, no reasonably minded decision maker in my position could assume anything other than a latent but real disposition in this applicant to return to the type of conduct resulting in the conviction.
Based on the evidence as it transpired, I find that with reference to primary consideration (a) the nature and seriousness of the applicant’s conduct to date, plus the real risk of his reoffending, is of such a magnitude such as to mitigate in favour of taking every reasonable measure open to me to protect the Australian community. In reaching this conclusion, I have had regard to the extreme nature of harm presented to individuals or the Australian community should he so reoffend. I find that primary consideration (a) weighs heavily in favour of refusing the bridging visa.
Primary consideration B
I turn now to primary consideration B concerning the best interests of minor children in Australia.
There are no minor children attributable to this applicant whose interests would be affected as a result of a decision to refuse this visa. Accordingly, I allocate no weight at all to primary consideration B.
Primary consideration C
I turn now to primary consideration C which involves the expectations of the Australian community.
This Tribunal is acutely aware that Australia has a low tolerance of any criminal conduct by visa applicants or those who have participated in the Australian community for only a short period of time.
The Tribunal appreciates the principle enunciated in Paragraph 6.3(6) of the Direction as it relates to “there should be no expectation that some people should be allowed to come to or remain permanently in Australia”.
It is right that the Minister should hold reasonable concerns about a person, with the type of history this applicant has, holding a visa. That contention is fairly made and endorsed by the nature of the applicant’s offending.
I accept that it is appropriate that decision makers should have due regard to the government’s views in this respect.[16] Further, I have no doubt that the Australian community expects the Australian government to refuse entry to non-citizens or cancel their visas if they commit serious crimes in Australia or elsewhere. In the circumstances of this case, where we have a serious crime of a sexual nature perpetrated against a vulnerable section of the community – minors – it is not at all unreasonable for this applicant to be denied the privilege of either coming to or staying in Australia. It is therefore correct that the Australian community should have a low tolerance of this type of serious criminal conduct and expect the applicant’s visa to be refused.
[16] The Direction, paragraph 11.3(2).
I sought to explain this specific concept to the applicant at the hearing by notionally asking him to, as it were, take a walk with me to the next street corner from this courthouse and to ask a sample of say five or ten people whether this applicant, with his history of offending committed so soon after arriving in Australia, would be acceptable to those people in terms of convincing them to let him stay here. He could not provide any meaningful response.
I therefore find that the expectations of the Australian community can only be met in this case by refusing the applicant’s visa. The offending is of such a nature as to afford no other conclusion. The offending is of such a psychiatrically unexplained nature as to why that there can be no other conclusion.
I afford no mitigation to any suggestion that this applicant’s offending is of lesser severity because a minor was not actually harmed or physically dealt with as part of the factual matrix of the offence. It is irrelevant that the applicant was subject of a police “sting” operation; he nevertheless deliberately arranged to meet a minor for sexual purposes.
In conclusion, primary consideration C therefore weighs in my view heavily in favour of refusing the applicant’s bridging visa.
I turn now to the other considerations listed at Paragraph 12 of the Direction. I refer to each subparagraph and comment as follows.
Other considerations (Paragraph 12 (a)): International non-refoulement obligations
I note for the record that this applicant has already applied for a protection visa which was refused on 9 March 2017.[17] In that decision, a delegate of the Minister found that this applicant was not a person in respect of whom Australia has protection obligations.
[17] Exhibit 1, Part 2: Supplementary G Documents, G5, pp 53-62.
Other considerations (Paragraph 12 (b)): Impact on family members

There was no evidence adduced by this applicant in relation to any direct family members in Australia, or their whereabouts in general, apart from a father back in India from whom the applicant is now estranged. During cross-examination, the respondent sought to clarify the nature of the applicant’s relationship with his girlfriend, Ms Chand. He said he met her at TAFE in Brisbane but that she had since moved to Coffs Harbour around the time of his offending.
Despite their mutual assertion about their intention to marry, I have misgivings about the permanent nature of the relationship. She says they have decided to “take the next step in our relationship and start our life together”. She adds that “I am aware of his all (sic) recent problems but I still believe that he is a good person and that he will be a good husband and father when time comes”.[18] My misgivings about the relationship arise from its seemingly transient nature in circumstances where on the applicant’s evidence she has relocated to Coffs Harbour yet he did not follow her even though he has no employment or ongoing training or other links to Brisbane. While I accept the applicant’s girlfriend may suffer some emotional hardship in the event of his visa being refused, I do not consider this factor to be sufficiently compelling as to outweigh the considerations weighing against the grant of the visa.
[18] Exhibit 2B.
Other considerations (Paragraph 12 (c)): Impact on victims
Fortunately, there was no victim in this case. However, I am cognisant of the fact that there could be very real and catastrophic consequences for vulnerable members of society – specifically minors – should the applicant reoffend.
Other considerations (Paragraph 12 (d)): Impact on Australian business
There is no evidence that refusal of the bridging visa would impact on any Australian business. There is nothing on this applicant’s horizon such that refusal of a visa would compromise delivery of a major project or an important service to the Australian community. No weight should be allocated to this consideration in favour of the applicant.
I have also had regard to the applicant’s references.[19] Predictably, they speak of the applicant being a friend of the referee and that he has learnt his lesson. None of the references make any believable or convincing reference to any referee being in a position to employ the applicant or to otherwise give traction to any notion of an ascertainable career path for him.
[19] Exhibits 2a-2h.
There is, for example, nothing in the references from, say a potential employer, that could or would offer the applicant a job were he to: (1) be released; and (2) complete a defined course. None of the referees gave evidence at the hearing.
CONCLUSION
In conclusion, by way of summary, I consider primary considerations A and C weigh heavily in favour of refusing the applicant’s bridging visa. Additionally, primary consideration B attaches no weight to my deliberation. In terms of the other considerations, although there may be some measure of impact on the applicant’s girlfriend, assuming she is an Australian permanent resident, this consideration should and must be given limited weight and most certainly comes nowhere near outweighing primary considerations A and C and the principles behind those considerations, in favour of a refusal.
DECISION
In terms of the decision, I find in these circumstances that this applicant’s bridging visa should be refused and I accordingly affirm the decision under review.

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

......................[sgd].............................................
Associate
Dated: 2 June 2017

Date of hearing: 2 May 2017

Applicant: By videolink

Solicitors for the Respondent: Sparke Helmore

[2017] AATA 802

2 May 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Remedies

Statutory Construction

Date of hearing:	2 May 2017
Applicant:	By videolink
Solicitors for the Respondent:	Sparke Helmore