Langat and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 93
•31 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 93
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2004/360
GENERAL ADMINISTRATIVE DIVISION ) Re Vincent Kipkirui Langat Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date31 January 2005
PlaceCanberra
Decision The decision under review is affirmed.
..............................................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – VISAEX – onshore visa application – refusal of partner (temporary) (class UK) and partner residence (class BS) visa – refusal on the ground of the applicant’s substantial criminal history – applicant imprisoned for six years – discretion that the tribunal may exercise where the applicant fails the character test – necessity to balance the protection and expectations of the Australian community against the hardship to the applicant and his wife – necessity to consider the hardship to the applicant’s wife and child if they were to accompany the applicant to Kenya – applicant does fail the character test on the ground of his substantial criminal history – found that the applicant continued a pattern of deceit and fabrication at the hearing which he has done since convicted and sentenced, there is a small but significant risk of recidivism, the best interests of Tyrhys are that the applicant remain in Australia however there is insufficient evidence to make a conclusion in relation to his daughter – held that the applicant’s wife and family will suffer distress and hardship if a visa is refused – held that the expectation and protection of the Australian community outweigh the other considerations – decision of the respondent is affirmed.
Migration Act 1958 ss 499, 501, 501(6)(a)
Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
REASONS FOR DECISION
31 January 2005 Professor GD Walker, Deputy President Summary
1. The applicant, Vincent Kipkirui Langat, who is aged 25 and a citizen of Kenya, came to Australia on 26 April 1998 on a worker diplomatic (temporary) (class TG) visa to enable him to work at the residence of a Kenyan High Commission official. On 23 June 2001, the applicant married Katherine Langat and on 9 October 2001, he lodged an application for a partner (temporary) and partner (residence) visa. On 27 September 2002, Mr Langat was convicted of sexual intercourse with a person under the age of 16 and sentenced to six years imprisonment. He is currently imprisoned at the Junee Correctional Centre.
2. The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, found that Mr Langat did not pass the character test pursuant to s 501(6)(a) of the Migration Act 1958 (“the Act”) because of his substantial criminal record. The respondent therefore refused Mr Langat’s partner (temporary) and partner (residence) visa application. This is the decision to be reviewed by the tribunal.
Background
3. The applicant, Mr Langat was born in the town of Kericho, Rift Valley Province, Kenya, (approximately 500 kilometres west of Nairobi), on 4 October 1979 and is aged 25. He is a citizen of Kenya. On 26 April 1998, he arrived in Australia on a domestic worker diplomatic or consular (temporary) (class TG) visa, valid until 31 March 2002, to enable him to work as a domestic assistant at the residence of an official from the Kenyan High Commission, who was his uncle and a neighbour in his home town. This visa was granted with condition 8110 (not to engage in work except in the household of the employer) and condition 8107 (not to change employer).
4. On 1 June 2001, the then Department of Immigration and Multicultural Affairs (“DIMA”) received a telephone call from Totalcare, to determine whether Mr Langat was entitled to work for the company under the conditions of his visa. Company records indicated that Mr Langat commenced work for Totalcare, in contravention of his visa conditions, in approximately August 1999.
5. In approximately April 2000, Mr Langat met Katherine (Kate) Wilkin (now Langat), born on 30 January 1982 and then aged 18. They commenced a relationship immediately and began living together some two months later. On 23 June 2001, they were married in a civil ceremony at the Canberra Nature Park, Watson, Australian Capital Territory (G J).
6. On 4 September 2001, Mr Langat was charged with sexual intercourse with a person under the age of 16. He was subsequently detained at the Villawood Immigration Detention Centre, New South Wales.
7. On 4 September 2001, the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) informed Mr Langat that it was intending to cancel his domestic worker (temporary) (class TG) visa because he had breached the work condition. He was interviewed on the same day, when he admitted working for Totalcare for a few months but was no longer working. Payslip records for the company indicated that he worked from August 1999 until May 2001. He also informed the interviewing officer that he had married on 23 June 2001. Mr Langat’s visa was cancelled on 4 September 2001, the officer being satisfied that he had breached the conditions of his visa. On 6 September 2001, Mr Langat lodged an appeal against this decision with the Migrant Review Tribunal (“MRT”) who, on 5 October 2001, set aside the decision to cancel his visa on the grounds that the MRT was not confident that he was aware that he was breaching the conditions of his visa and that he was able to resume his duties such that he would not be in breach of his visa conditions and taking into consideration the hardship it would cause to his wife and her dependant siblings (G K).
8. On 9 October 2001, Mr Langat lodged an application for a partner (temporary) (class UK) and partner residence (class BS) visa with DIMIA (G B). He was granted an associated bridging visa A on the same day.
9. On 3 July 2002, Mr and Mrs Langat’s son, Tyrhys Kibet Langat, was born at the Calvary Hospital, Australian Capital Territory (G I).
10. On 27 September 2002, Mr Langat was convicted of sexual intercourse with a person under the age of 16 and sentenced to six years imprisonment, with a non-parole period of two and a half years. He is currently imprisoned at the Junee Correctional Centre. His earliest date of release is 27 February 2005. This conviction resulted from the sexual assault on a girl aged 14 on or about 4 February 2001. On imposing the sentence on the applicant, Justice Crispin of the Supreme Court of the Australian Capital Territory noted that the crime was a very serious offence and:
This is not a case in which the applicant can claim particular leniency due to an early plea of guilty which spared the complainant the ordeal of having to give evidence about the matter. Nor is it a case in which he has acknowledged his guilt or expressed remorse. On the other hand, I have to take into account the – his cultural background …
…
There is, furthermore, one other factor to be considered. And that is that this incident, unlike some of the sexual assaults which come before this court, may have been relatively unpremeditated in the sense that he plainly had considerable attraction towards and perhaps affection towards the complainant. When he drove her to the Red Hill lookout he may well have expected that she would reciprocate his advances. Whether that expectation was a sensible expectation based on any responses to him in the past, or whether he simply confused friendship with attraction is another question.
His anticipation may perhaps have been coloured by wishful thinking, loneliness and cultural - different cultural expectations. In any event, it does not seem to me that the evidence establishes to the requisite standard that he had premeditated an assault upon her involving the absence of any consent upon her behalf.
…
Nonetheless, it remains a very serious offence and one which plainly requires a term of imprisonment.
11. On 17 January 2003, an officer of DIMIA Residence Section informed Mr Langat that he was considering refusing his partner visa application because of his substantial criminal conduct and inviting him to comment (G D). On 17 February 2003, Mr Langat’s migration agent, Peter Steele of Steele Migration Services, made submissions on his behalf, stating that his client was not a threat to the Australian society and that it would be “double jeopardy” if the Department were to punish him and his family by refusing the visa. On 12 October 2004, Mr Langat was sent a further notice of consideration to which he replied on 18 October 2004 (G P). Mr Langat submitted that he had undergone the CORE program, a program designed to assist the reduction of sexual recidivism by offenders, which was a “huge benefit” to him in understanding how to deal with his unacceptable behaviour. He stated that he was also working with his parole officer in deciding what he would do when paroled including spending time with his family and that he had completed several vocational and skills courses, including forklift driver and bakery certificates, which will prepare him for work.
12. Mr Langat’s migration agent also responded by letter dated 8 November 2004 (G N). This letter submitted that Mr Langat had taken part in a number of courses whilst in prison, including the CORE program, and that upon his release he would be living with his wife and her extended family at Bawley Point and that a number of support services and prevention strategies were being put into place in anticipation of his release, and that it would be a tragedy if he were not allowed to remain in Australia with his wife and two year old son.
13. On 10 November 2004, a delegate of the respondent decided to refuse Mr Langat’s visa application because of his substantial criminal record and having exercised his discretion under s 501(1) of the Act to refuse the grant of a visa. On 16 November 2004, the applicant lodged an application for a review of this decision by the tribunal.
14. At the hearing of this matter in Canberra, the applicant was represented by Peter Steele, migration agent, Steele Migration Services, assisted by Jim O’Brien, migration agent, and the respondent was represented by Gretchen Bennett, solicitor, Clayton Utz, solicitors. The evidence before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G Documents”), taken into evidence as Exhibit A1, together with the evidence tendered by the parties at the hearing. Oral evidence was given in person by Vincent Langat, Katherine Langat and Lynette Jean Vidler.
Relevant Law and Policy
15. Under s 501(1) of the Act, the Minister may refuse the grant of a visa to a person if the person does not satisfy the Minister that he passes the character. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant ground in the current matter is s 501(6)(a) which provides:
For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7));
…
”Substantial criminal record” is defined in s 501(7) to include a person who “has been sentenced to a term of imprisonment of 12 months or more”.
16. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
17. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The Direction provides guidance on the application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Issue
18. In the present case, Mr Langat does not pass the character test because of his substantial criminal record, having received on 27 September 2002, a sentence of imprisonment of six years with a non-parole period of two and a half years, for sexual intercourse with a person under the age of 16. The issue remaining, therefore, is whether the tribunal should exercise the discretion under s 501(1) not to refuse the grant of a visa.
Evidence
19. As the application of the discretion under s 501(1) of the Act is the only issue in these proceedings, I propose to deal with the evidence in the order in which Direction No 21 (see below) deals with the various matters to be taken into account in that process. Thus the first subject to be considered is the protection of the Australian community, which relevantly involves an appraisal of the seriousness of the offence and the weight of any mitigating circumstances.
20. As was noted above, the offence for which the applicant was sentenced was sexual intercourse with a person under the age of 16. The circumstances leading up to the offence are set out in Exhibit A11 and in the trial judge’s pre-sentence observations. Exhibit A11 is a report prepared by Ms Lyn Vidler, psychologist at the Kirkconnell Correctional Centre and Ms Anne Young, clinical co-ordinator of Sex Offender Programmes and dated 1 September 2004. In their “Final Treatment Report” they give an account of Mr Langat’s participation and completion of a course known as CORE conducted at Kirkconnell for inmates convicted of sex offences. The report states that the victim was aged 14 at the time of the assault. Mr Langat had known the victim since she was 12, as she was a school friend of his cousin, with whom his family was residing. He apparently cultivated an association with the girl, through letters and text messages, as well as talking with her when she visited his cousin. She apparently trusted him and would seek his advice in the course of conversations with him. In late 2000 he had held her and attempted to kiss her, but she told him that she was not interested. At the hearing he said that he knew the victim’s family as well, and was trusted by them also.
21. On or about 4 February 2001, the date of the offence, Mr Langat drove the victim and his cousin and another girl to the local shops to buy lollies. He sent her a text message while she was in the store asking her to come outside and talk to him. When she emerged by herself and entered his car, Mr Langat drove her to the Red Hill lookout in Canberra, parked in a secluded place and, as both the report and the Judge’s comments record, assaulted her, using force to have sexual relations with her. She resisted violently during the intercourse, kicking and hitting him, in due course forcing him to desist. He then said he would drive her back to the shops when she had stopped crying and warned her not to tell anyone about what he had done.
22. At the trial, which took place approximately 20 months after the offence, Mr Langat pleaded not guilty but was convicted after a jury trial. Judge Crispin noted that the offence charged did not require proof of the absence of consent. Nevertheless, for the purposes of sentencing, his Honour stated that he was satisfied beyond a reasonable doubt that the assault took place without the complainant’s consent.
23. In mitigation, Judge Crispin found that the use of force to effect the assault may well have been unpremeditated. The assault itself, however, was clearly pre-planned, possibly for some time. The CORE report notes that he did not want a relationship with the complainant but merely “wanted to have sex with her just once” (Exhibit A11 p5). In view of her spirited resistance to the assault and her earlier rejection of his advances, it seems likely that he resorted to some form of false pretence in order to persuade her to accompany him to Red Hill lookout.
24. His Honour also accepted in mitigation what he believed to be the offender’s loneliness and “different cultural expectations”. Mr Langat later told the CORE staff that at the time of offending, he was feeling lonely and unloved. He had no immediate family in Australia (apart from his aunt, uncle and cousins) and no close friends. He had asked his girlfriend to marry him, but she had turned him down. “He felt unwanted, unloved, worthless, rejected and alienated and wanted to find someone who could love him and make him feel special” (Exhibit A11 p6).
25. Far from being lonely and unloved, however, he was at the time of the offence living with his fiancée and had plans to be married the following month. He had met Kate Wilkin on 1 April 2000 and she had begun living with him about two months later. In August she was found to be pregnant with his child but suffered a miscarriage. In his statement (Exhibit A6), Mr Langat states that “In October of the same year [2000], our 6 moth [sic] anniversary, I asked Kate to marry me and she agreed. We set the date for our 1st anniversary, 31 March 2001”. The wedding was later postponed for financial reasons. In May 2001, three months after the offence, Kate was found to be pregnant again but subsequently suffered another miscarriage. At the hearing Mr Langat claimed to have told Kate about the assault on the day it occurred, but in her evidence she said that she could not remember when she learned of the offence. That seems a rather improbable memory lapse; but at all events, she added that she did not know the offence was committed without consent until the trial.
26. At the tribunal hearing Mr Langat elaborated the “different cultural expectations” factor that was accepted in mitigation by the sentencing judge, saying that in Kenya promiscuity is a part of the culture. Four studies of sexual behaviour in Kenya were tendered (Exhibit A3) in support of that contention. The largest of these was the section on Kenya authored by Dr Norbert Brockman in the online The International Encyclopaedia of Sexuality. Dr Brockman notes that custom restricts adolescent intercourse, but in fact promiscuity is fairly widespread and by age 20, 42 per cent of females and 76 per cent of males, or about 59.9 per cent overall, were sexually experienced. (The section on Australia in the same encyclopaedia gives a figure of 60 per cent for 18 year-olds in this country). Overall, the section on Australia in The International Encyclopaedia of Sexuality paints a picture not unlike that given for Kenya, with the important exception that violence for these purposes is not tolerated, although “peer pressure from boys” is said to be a major factor. Be that as it may, Mr Langat’s invocation of cultural differences is weakened by his admission (in Exhibit A11) that he warned the victim not to tell anyone what he had done (and it appears that she heeded the warning for about three months). Besides its implicit threat of violence, that warning strongly points to an awareness that what he had done was wrong and could have adverse consequences for him.
27. Judge Crispin also took into account in mitigation Mr Langat’s “deprived childhood and its likely impact upon him as he grew older”. “He described an impoverished childhood,” his Honour said. “His stepfather grows vegetables and farms cattle and chickens on three acres of land and obviously derives little more than a subsistence living from it, having regard to the number of dependants. He was sent to live with his grandmother … when he was only 12 months of age and lived with her until he was 10” (Exhibit A1).
28. When interviewed before commencing CORE, he admitted that those statements were false. He told CORE that he had lived with his grandmother until he was aged about seven (at the hearing he reverted to saying he was aged 10), and that he then went to live with his mother, stepfather and two younger half-brothers in their house in the city, where maids cooked the meals and supervised the children when his parents were out at night. “He described his stepfather as a man proud of his achievements, who lived overseas for lengthy periods while working and gaining a PhD. Mr Langat stated that he was sent to boarding school from the age of fourteen, coming to Australia at the age of sixteen, completing his education and gaining his Higher School Certificate in Australia” (Exhibit A11 pp2-3). In his pre-sentence interview he had said that he had been sent to boarding school from the age of 14 because it was a cheaper expedient than keeping him at home, but he later told CORE that he was sent to boarding school at the age of 14 “after stealing his father’s car and crashing it at the age of twelve” (Exhibit A11 p3). His stepfather had thought boarding school would be good for him and in fact he had enjoyed it.
29. In the pre-sentence interview, Mr Langat had said that in Kenya he had achieved the equivalent of a Year 12 certificate before coming to Australia. He told the CORE staff, however, that he completed school in Canberra, where he attained HSC level. He said he could not remember his results or his TER score. He remembered failing mathematics and that his best subject was commerce.
30. The CORE report notes that “Mr Langat explained these discrepancies by saying that he gave a false background to Ms Haskins [the probation officer who prepared the pre-sentence report] as he wished to gain sympathy from the court in order to gain a lighter sentence” (Exhibit A11 p3). At the hearing, however, Mr Langat partly reverted to the version of his history that he had given at the pre-sentence interview. He now said that he lived with his grandmother until the age of 10, not seven, and said that he had not in fact attended school in Canberra or obtained the HSC. He once again claimed to have come from an impoverished background, adding that otherwise he would have attended university.
31. The other mitigating factor is that offence for which he is currently incarcerated is his sole conviction, apart from a $50 fine, with no conviction recorded, for permitting another to use his identification document. He has also admitted to engaging in shoplifting when a teenager, for which he was never called to account, as well as stealing and crashing his stepfather’s car. He also admitted to using marijuana from the age of 15 until he began his prison sentence.
32. Evidence relating to general conduct and rehabilitation bears on the risk of recidivism, the second category of matters to be taken into account in relation to protection of the Australian community. Relevant to rehabilitation are the vocational courses the visa applicant has undertaken while in custody, through which he has earned qualifications as a baker and a forklift driver. It should also be noted that he has a good record as a prisoner, holding a C3 classification which enables him to engage in unsupervised community work outside the prison and on occasions to reside off the premises. He is trusted with significant tasks within the facility and has been classified as a low escape risk.
33. The staff of the CORE program concluded that, in comparison with other adult male sex offenders, he represented a low risk of repeat offending. In statistical terms, in his category of (violent) sex offender the figures show one in six perpetrators being likely to re-offend in a ten year period. He had an adequate relapse prevention plan. One factor which could, however, increase his risk of re-offending was his “lack of commitment to being honest and open”, which is “a cause for concern”. Without such a commitment, “his motivation to avoid reoffending will remain questionable” (Exhibit A11 p7).
34. The reference to a lack of openness and honesty relates to the numerous discrepancies and inconsistencies in the accounts he has given concerning his background and conduct. Some of these have been mentioned above. Another is in his description of his employment record in Australia. When interviewed before entering CORE, he said he had had two jobs since leaving school and that he was in his first job for nearly two years, sterilising medical tools and equipment. Then, after being unemployed for three or four months and living on his wife’s savings, he worked as a waiter and barman at functions at a hotel for a year before he commenced serving his sentence. According to the pre-sentence report, however, he was employed as a “houseboy” for 18 months at the diplomatic residence where he lived, and then worked in a laundry for two years until he was charged with the offence in question. Subsequently he was unemployed until March 2002, when he had three casual positions over four months delivering newspapers, working as a housekeeper and as a function worker at two Canberra hotels. Thereafter he continued in the casual position of newspaper delivery until he was taken into custody (Exhibit A11 pp3-4).
35. Mr Langat also attempted to mislead the departmental delegate when he was interviewed on 4 September 2001 concerning the alleged breach of his temporary domestic worker visa. He said that he did not consider he had breached the visa conditions as he was not currently working. He did admit, however, that he had worked for Totalcare (which operates, among other facilities, an industrial laundry) for a “while”, but only for “a couple of months”. When the delegate showed him pay slips indicating that he had worked for Totalcare from August 1999 to May 2001, Mr Langat replied that he could not remember or could not specify and repeated his claim that it was only for a couple of months. The delegate pointed out that the evidence showed that it was a couple of years, not months (G K).
36. Also relevant to his lack of openness and honesty is his concealment until shortly before the hearing, of the fact that he has another child in Australia (see below).
37. The CORE report notes that during the course Mr Langat “did not address” his behaviour in giving false information for the pre-sentence report, which was taken into consideration by the Judge. In her oral evidence, Ms Vidler repeated that the problem had not been resolved, and the program did not focus on which particular statements were true and which were not. She had told him that honesty was important, including for the purposes of parole. She had asked him which version of the facts was true, and he had said that the one he had given her was true. But as was noted above, at the hearing Mr Langat had reverted to an earlier version of some material facts. He said twice that he had given false information in his application to CORE, as he wanted to be accepted in the program. In two other instances he explained falsehoods by saying that “they were part of my personality” adding he had addressed the issue in CORE. Ms Vidler, on the other hand said he had not.
38. The evidence on the question of rehabilitation is thus rather equivocal. The applicant’s conduct in prison has been good, and he has undertaken some useful vocational courses. He is regarded as a low escape risk. The CORE report concluded that he presented a low risk of repeat offending compared with other male sex offenders, statistically about a one in six chance of re-offending over ten years. On the other hand, that might not be regarded as an insignificant risk. Further, the report cautioned that his risk of re-offending could increase if he failed to make a genuine commitment to being honest and open.
39. No such commitment is yet apparent. It is clear that he gave false information to the department in the interview on 4 September 2001. He gave false information at the pre-sentence interview in order to obtain a lighter sentence, and to the administrators of CORE in order to secure admission to the course. He withheld crucial information from his wife (and apparently from his own representative) in relation to his other child, as is seen below. On both the question of rehabilitation and the question of general conduct, the evidence therefore tends on balance against the applicant’s case.
40. The third consideration relevant to community protection is general deterrence, which aims to deter others from committing the same or similar offences. “Whilst not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa” (Direction No 21 paragraph 2.11). Deterrence is another factor shown by contemporary research to play a more important role in crime causation than had previously been thought (see Re Sam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003 paragraph 31). Mr Steele argued that the deterrence factor in this case could not be predicted. Indeed, the deterrent effect of a particular decision is impossible to measure in advance. It is safe to say however, that exercising the discretion in favour of not cancelling the visa in a case as serious as this one could send an entirely undesirable message to non-citizens contemplating criminal activity.
41. The other main part of the evidence dealt with the best interests of the child. Mr Langat and his wife Kate have a son, Tyrhys, aged two years and six months at the time of the hearing. It appears that standard psychiatric or psychological tests for a two and a half year old child are at the most speculative and provide no clear evidence of the effect of the absence of one parent at that age (Exhibit A2). Nevertheless, although Tyrhys was only aged three weeks when the applicant commenced his prison sentence, he does recognise his father and enjoys his company.
42. The Statements of Facts and Contentions filed by both sides in these proceedings rest on the premise that Tyrhys is the only child whose interests are to be considered. Shortly before the hearing, however, the CORE report (Exhibit A11) was produced on summons. The report discloses that Mr Langat has another child, who is the result of an association with a woman with whom he was living shortly before he met Kate Wilkin. He said that he left her, not realising she was pregnant, because “it was time to move on” and he “got fed up with her” (Exhibit A11 p4). No evidence was adduced from the mother of this child, nor has her name or the name of the child (a girl) been given. The evidence does not show whether she is an Australian citizen or not. There is no reference to her in any of the written statements by Mr Langat or his wife. Mr Langat says that the child’s mother informed him of the birth shortly before he commenced his prison sentence. Although he says no one is named on the birth certificate as the child’s father, he is sure she is his daughter because “she looks like me” (which may be in part a reference to his African appearance). At the hearing he said that he did not know what the child or her mother would do if he had to leave Australia, but in fact he has never supported the child, or her mother, or had any contact with the child except on occasional prison visits. He added that he had told Kate about the child in late 2002 and that she knew the child’s mother was maintaining contact with him while he was in jail.
43. When asked at the hearing when Mr Langat had told her about his daughter, Kate Langat replied only that it “was a while ago”. When the question was later repeated she said that she did not remember when he told her. It seems most improbable that a woman would not vividly remember the occasion when she learned for the first time that her husband had another child. Given that even her statement on 13 December 2004 (Exhibit A13) fails to mention the older child, and that the Statement of Facts and Contentions lodged on the applicant’s behalf on 14 December 2004 is similarly devoid of all reference to her, it seems more likely that neither his wife nor his migration agent knew about the child’s existence until the CORE report came to light shortly before the hearing. Had that not happened, he may never had told them about her.
44. Paragraph 2.17 of Direction No 21 requires the tribunal to take into account a number of other considerations when applying the discretion. They include the extent of disruption and hardship that visa refusal would cause to the non-citizen’s family, and any significant compassionate circumstances.
45. At the hearing Mr Langat said that he would not expect his wife to move to Kenya. He has currently no job to go to and it would be a new culture for Kate which is very different from Australia. When asked whether the courses he undertook in prison would help him to become established in Kenya, he replied that he is from a rural area, that there was no bakery in his town and he had no intention of establishing one. Apart from that, Mr Langat nor his wife seem to have given much thought to what they would do if a visa is not granted, but Kate Langat says that she would not move to Kenya. Apart from his wife and two children, all of Mr Langat’s family live in Kenya, his uncle, aunt and cousins having returned there. All Mrs Langat’s family are in Australia.
46. There was no evidence on whether or not the complainant was suffering continuing effects from the offence. Ms Vidler, however, said that it was common for victims of such crimes to feel humiliation and betrayal. They tended to have problems in forming relationships, in going out alone and in conducting relationships with men. They tended to suffer from nightmares and depression and were more susceptible to the abuse of drugs and alcohol. They could experience fear and apprehension at the prospect that the perpetrator might be released.
Application of the Law and Findings of Fact
47. As was stated above, there is no dispute, and I find accordingly, that the applicant does not pass the character test by reason of s 501(6)(a) of the Act because he has a substantial criminal record, defined in subsection (7) as including a person who has been sentenced to a term of imprisonment of 12 months or more. Mr Langat was convicted to a term of imprisonment of six years for sexual intercourse with a person under the age of 16, being a 14 year old female. The issue for the tribunal then is whether to exercise its discretion under s 501(1) to decide, nevertheless, not to refuse a visa. In so doing, the tribunal must have regard to Direction No 21 as a guide to the exercise of its discretion.
48. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
Paragraph 2.4 explains:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community
49. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, subparagraphs (d), (m) and (n) which state as follows:
(d)sexual assaults are particularly repugnant to the Australian community, especially sexual assaults involving children regardless of whether there was overt violence or the threat of violence;
…
(m) crimes against children:
due to their vulnerability as victims and potential victims, crimes against children take on a special significance, especially crimes involving inducing children to take illicit drugs, sexual assaults on children, child prostitution, violence to children, kidnapping and crimes taking advantage of children;
(n) any other crimes involving violence or the threat of violence:
such crimes are of special concern to the welfare and safety of the Australian community; …
50. Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.
Protection of the Australian Community
51. The first factor to be considered under this heading is the seriousness and nature of the conduct involved. In this case, the applicant was convicted and imprisoned for the very serious offence of sexual intercourse with a person under the age of 16. At the time of sentencing Mr Langat, Justice Crispin stated (at page 3):
It need scarcely be said that for an adult male, even one as young as 23, to have sexual intercourse with a 14-year-old girl without her consent, is a very serious offence.
52. The term of imprisonment for an offence is also regarded as an indicator of its seriousness. Justice Crispin noted (at page 2):
In this territory, …, an offence of sexual intercourse without consent, unaccompanied by any of the aggravating features referred to in other offences, constituted by different sections of the Crimes Act, carries a maximum penalty of only 12 years, whilst an offence of sexual intercourse with a person under the age of 16, whether consensual or non-consensual, carries a maximum penalty of 14 years.
53. I respectfully agree with Justice Crispin that the offence is a very serious one. It is aggravated by the fact that Mr Langat gave false information about his background at the pre-sentence interview in an attempt to obtain a more lenient sentence. The expert evidence of Ms Vidler concerning the usual continuing effects of violent sexual assaults on the psychological and social welfare of the victim must also be considered in this context.
54. Next, the tribunal is to consider the risk of recidivism. Paragraph 2.10 of Direction No 21 states that a person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism. In this case, Mr Langat has no prior convictions in Australia or Kenya and has had only one minor violation while imprisoned. While in custody he has undertaken the CORE program, a low intensity program designed for offenders assessed as being a low risk of reoffending. The CORE report stated that, statistically, adult male sex offenders in the same category as Mr Langat reoffend at the rate of about one in six over a ten year period. The report considered that this evidence showed a low recidivism risk, but cautioned that the likelihood of reoffending could be greater if he did not make a genuine and firm commitment to honesty and openness with his support team and all others concerned. The evidence of his continuing pattern of deceit and fabrication when he sees an advantage in it suggests that his likelihood of reoffending is in fact significant and that there has been no comprehensive rehabilitation.
Expectations of the Australian Community
55. The second primary consideration is set out in paragraph 2.12 of Direction No 21 and states that the community expects non-citizens to obey Australian laws while in Australia. Failure to do so may make it appropriate to cancel such a person’s visa. “Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concern or offences are such that the Australian community would expect that the person … should be removed from Australia”.
56. As was stated above, paragraph 2.6(d) of Direction No 21 states that sexual assault involving children (in this case, the female being only 14 at the time of the offence) are considered particularly repugnant to the Australian community. A violent assault, as is in this case, would be especially so. While the community would feel compassion for the hardship and distress suffered by Mr Langat’s wife and son, the nature of the offence and the small but significant risk of recidivism would nevertheless weigh heavily against the grant of a visa in this case.
The Best Interests of the Child
57. The third primary consideration is the best interests of the child. The tribunal notes the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the children understood as a primary consideration”. The tribunal also notes paragraph 2.16 of Direction No 21 which sets out considerations which the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).
58. In this case, Mr Langat has a son, Tyrhys Kibet Langat, aged two years and six months at the time of the hearing, whose interests must be considered. Tyrhys was only three weeks old when Mr Langat was taken into custody. He is cared for by his mother, with the assistance of his grandparents on the days when his mother undertakes part-time employment. Tyrhys knows his father but has had limited physical contact with him because of the difficulties, including financial, Mrs Langat faces in travelling to see her husband in prison. Paragraph 2.15 of Direction No 21 states that “In general terms, the child’s best interest will be served if the child remains with its parents”, and although Tyrhys is apparently too young for any meaningful psychological appraisal, there is no reason to doubt the applicability of that presumption in this case. Mrs Kate Langat has made it clear that if a visa is not granted she will not move to Kenya. Tyrhys would therefore inevitably live apart from his father and would be raised by his mother and his grandparents. Visits to Kenya would presumably be a possibility, and Kate Langat has said that it would be helpful in any event if her son were able to travel to Kenya and become acquainted with his father’s family, who he has never met.
59. Although the case was apparently prepared by both sides on the basis that Mr Langat had only one child, it emerged shortly before the hearing that Mr Langat has another child, a daughter born as the result of an earlier association immediately before Mr Langat met Kate Wilkin. No evidence was given by the child’s mother, nor was her name given. There was no evidence of the child’s name and exact date of birth, but on Mr Langat’s estimate she would be aged about three. There is no evidence as to whether she is an Australian citizen or not. In the witness box Mr Langat expressed concern for his daughter’s wellbeing in the event that he were to return to Kenya, but he has never taken any responsibility for her and his total contact with her has been limited to a few prison visits. He has given no indication what arrangements, if any, he would make for her in the event that he were granted a visa to remain in Australia. In all, there is insufficient evidence on which to reach any conclusion about the best interests of Mr Langat’s daughter. On the other hand, I consider it would be in the interests of Tyrhys that a visa be granted to his father so that he can remain in Australia with the child and his mother.
Other Considerations
60. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent, good conduct; and whether the application is for a temporary visa or permanent visa.
61. In this case, Mr Langat’s mother, stepfather and siblings all reside in Kenya. The uncle who worked in Canberra has returned to Kenya, at the request of the Department of Foreign Affairs and Trade, taking his family with him. They would not be affected by a decision to refuse a visa to him. Kate Langat, her parents and twin brothers, Adam Ray Wilkin and Joshua Evan Wilkin, aged 19, all reside at Bawley Point on the south coast of New South Wales (G G). Mrs Langat resides near her parents, who look after Tyrhys on the three days that she travels to Canberra to work (G Q). In a submission to the department by Mrs Langat’s mother, Cheryl Wilkin, on 1 November 2004, Mrs Wilkin said that she finds it difficult to care for her grandson because her husband is on a disability support pension and also requires care (G R).
62. The applicant married Kate (Wilkin) Langat, an Australian citizen, on 23 June 2001. There is no evidence that she knew he had been working unlawfully in Australia at the time of the marriage. Although it seems likely that she attempted to mislead the tribunal about such matters as when Mr Langat told her about the offence for which he was convicted and about his other child, she is largely an innocent party in these proceedings. She is clearly committed to the marriage; whether one can say the same for her husband is more doubtful, given his involvement with the complainant and his withholding of information about his other child. Any such doubts do not mean, however, that the marriage is not a genuine one. I must therefore take into account the disruption to the marriage and the distress and hardship to Mrs Kate Langat that visa refusal would cause.
63. On weighing all the considerations, I conclude that the first two primary considerations, protection of the Australian community and community expectations, are particularly weighty in this case and preponderate over the other considerations. The discretion should not be exercised in favour of granting a visa. The decision under review should be affirmed.
I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate of Hearing 13 January 2005
Date of Decision 31 January 2005
Representative for the Applicant Mr P Steele, Steele Migration Service
Representative for the Respondent Ms G Bennett, Clayton Utz solicitors
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