LFHY and Minister for Immigration and Border Protection
[2013] AATA 763
•25 October 2013
[2013] AATA 763
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/4364
Re
LFHY
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
Decision
Tribunal Deputy President RP Handley
Date 25 October 2013 Place Sydney The decision under review is affirmed.
............................[SGD]....................................
Deputy President RP Handley
Catchwords
MIGRATION – visa refusal – bridging visa pending determination of protection visa application – protection visa refused - failed character test – substantial criminal record - Direction 55 – seriousness and nature of conduct – unlikely to reoffend – other considerations – best interests of the child – no non-refoulement obligations - decision affirmed
Legislation
Migration Act 1958 ss 36, 48A, 501
Migration Regulations 1994 regs 2.12, 2.12AA
Secondary Materials
Direction [no. 55] - Visa refusal and cancellation under s 501
REASONS FOR DECISION
Deputy President RP Handley
Date: 25 October 2013
LFHY (the Applicant) has applied to the Tribunal for the review of a decision of a delegate of the Minister for Immigration and Border Protection (the Minister) to refuse her application for a bridging visa on the ground that she does not pass the character test because of her substantial criminal record.
BACKGROUND
LFHY is a Nepalese citizen who was born in Nepal in 1988 and is aged 25. She first arrived in Australia, with her husband, on 18 December 2008 as the holder of a Student (Temporary) (Class TU) subclass 572 Vocational Education and Training Sector visa. The visa ceased on 15 March 2011. LFHY was subsequently granted Bridging E (Class WE) visas on 16 March 2011 and again on 13 April 2011, before being granted a Criminal Justice Stay visa on 29 April 2011 while awaiting the outcome of criminal proceedings.
LFHY’s husband left her a few months after their arrival in Australia and they were subsequently divorced with effect from 18 August 2012. The Divorce Order dated 17 July 2012 states that the marriage was solemnised on 10 July 2008. LFHY does not have any children. She has a sister living in Brisbane, who is studying nursing and is the holder of a temporary bridging visa not entitling her to remain indefinitely in Australia. LFHY states that her other sister is living in England. Her parents continue to live in Nepal.
LFHY has had two convictions since residing in Australia. On 27 April 2012, she was convicted in the NSW District Court of making a false accusation of sexual misconduct and of entering a building with the intent to commit an indictable offence. At a sentencing hearing on 26 October 20120, Judge King imposed a 3 month sentence for the ‘entering building with intent’ offence, and a two year sentence for the false accusation offence. LFHY’s criminal record is as follows:
Date of offence Date of Sentencing Offence Outcome 30 Oct 2010 26 Oct 2012 Attempt To Make False Accusation With Intent To Subject Other To Investigation 2 years imprisonment (1 year non-parole) commencing on 8 June 2012 2 Nov 2010 26 Oct 2012 Attempted To Enter Building/Land With Intent To Commit Indictable Offence 3 months imprisonment commencing on 8 June 2012
On 7 May 2013, while still in custody, LFHY applied for a Protection (Class XA) visa. She also applied for an associated Bridging E (Class WE) visa, but withdrew this application on 24 May 2013.
LFHY’s Criminal Justice Stay visa was cancelled on 5 June 2013. On her release from prison on 7 June 2013, she was immediately taken into immigration detention at Villawood Immigration Detention Centre. On 13 June 2013, LFHY lodged a further application for a Bridging E (Class WE) visa in association with and for the purpose of awaiting the outcome of her application for a protection visa.
On 17 July 2013, following consideration by the Visa Application Character Consideration Unit, a delegate of the Minister refused LFHY’s application for a protection visa application. On 20 July 2013, LFHY applied for a review of this decision by the Refugee Review Tribunal (‘RRT’) and, on 19 August 2013, the RRT affirmed the decision.
On 17 June 2013, the Department of Immigration and Border Protection (the Department) notified LFHY that consideration was being given to the refusal of her application for a bridging visa, setting out the proposed grounds for the refusal and inviting her to comment. A second letter was sent on 23 July 2013 inviting her comment on additional information included with the letter. LFHY responded on 8 August 2013, providing personal details, a medical history and three letters of support.
On 14 August 2013, a delegate of the Minister decided to refuse LFHY’s application for a bridging visa and notified her of this by letter dated 20 August 2013, delivered to her by hand on that day. On 29 August 2013, LFHY applied to the Administrative Appeals Tribunal (AAT) for a review of this decision.
RELEVANT LAW AND POLICY
Section 501(1) of the Migration Act 1958 (the Act) states: “The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test”. Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record. ‘Substantial criminal record’ is defined in s 501(7) as including having been sentenced to a term of imprisonment of 12 months or more.
On 26 October 2012, LFHY was sentenced to a term of imprisonment of two years with a non-parole period of one year. Thus, she does not pass the character test. It was therefore open to the Minister to refuse to grant a visa to LFHY. In exercising this discretion, the decision-maker must apply Direction [no. 55] - Visa refusal and cancellation under s 501 (Direction 55). Direction 55 requires the Tribunal to take into account primary considerations and other considerations relevant to the individual case.
The Preamble to Direction 55 sets out the Objectives of the Direction, General Guidance for decision-makers and the Principles that provide a framework within which decision-makers should approach their task. In the case of serious criminal or other misconduct, when determining the risk of future harm, the decision-maker should balance the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community (Section 2, paragraph 7(1)(b)).
Paragraphs 11 and 12 of Direction 55 set out a number of ‘primary’ and ‘other’ considerations to which the decision-maker must have regard when considering whether to exercise the discretion to refuse to grant a visa to a person. The ‘primary’ considerations are set out in paragraph 11(1):
Primary considerations – visa holders
(1)In deciding whether to refuse a person’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)Whether Australia has international non-refoulement obligations to the person.
Paragraph 8(1) draws a distinction between the considerations to be taken into account by decision-makers in respect of visa holders and visa applicants, separating the considerations for these two groups. The ‘other’ considerations, set out in paragraph 12(1) (see below), must be taken into account where relevant. Paragraph 8 states:
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case, noting that there are differing considerations for visa holders and visa applicants as articulated in Parts A and B. Separating the considerations for visa holders and visa applicants recognises that persons holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weigh in favour of, or against, refusal or cancellation of the visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
Protection of the Australian Community FROM CRIMINAL OR OTHER SERIOUS CONDUCT
Under this heading, the Tribunal is required to give due consideration to the Government’s “Objectives”, “General Guidance”, and “Principles” set out in Section 1, paragraph 6 of Direction 55 under the heading ‘Preamble’. The ‘Principles’ referred to in paragraph 6.3, which provide a framework for decision-makers in approaching their task, include the following:
(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) A non-citizen who has committed a serious crime … should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
...
(5) 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.
(6) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1) of Direction 55 states that, informed by the principles in paragraph 6.3, a decision-maker:
a)…
b)is required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.
Paragraph 11.1 of Direction 55 states:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:
(a) The nature and seriousness of the person’s conduct to date; and
(b) The risk to the Australian community should the person commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct
Paragraph 11.1.1(1) of Direction 55 states relevantly:
(1) In considering the nature and seriousness of the person’s criminal offending or other conduct to date, decision-makers must have regard to:
…
d)The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s 501(6)(b) or (d), or is not of good character under s 501(6)(c), is considered to be serious;
e)The sentence imposed by the courts for a crime or crimes;
…
The serious offence for which LFHY was sentenced on 26 October 2012 involved her making a false statement at Auburn Police Station on 30 October 2010 accusing the victim, who was a married man with a son, of sexually assaulting her on the previous day. It is not necessary to detail the allegation here – suffice it to say, the allegation was a serious one. When the Police investigated the matter, there was incontrovertible evidence (CCTV footage and electronic tag toll road records) that the victim could not have committed the alleged offence. In relation to the offence of attempting to enter a building with intent to commit an offence, which took place on 2 November 2010, LFHY went to the apartment building, where the victim lived with his wife and son, gained access to the building and took the lift to the floor on which the victim’s apartment was located where she knocked loudly on his door intending, she later said, to enter the premises and write on the wall “he’s a rapist” or something similar. The victim did not open the door but called the Police who attended a short while later. On 24 November 2010, LFHY was asked to attend Chatswood Police Station where she was cautioned and charged in respect of both offences.
In his sentencing remarks on 26 October 2012 in the NSW District Court, Judge King noted that it was not until after the jury was empanelled on 24 April 2012 that LFHY sought to change her plea to one of ‘guilty’ but then subsequently sought to continue with a ‘not guilty’ plea on the lesser charge. However, after the Crown’s opening and evidence from the victim, at the commencement of proceedings on 27 April 2012 LFHY sought to again change her plea on the lesser charge to one of ‘guilty’. The pleas were accepted and LFHY was found guilty on each charge.
Judge King said:
70.In the Court’s view, where an allegation of an act of sexual misconduct is made against any individual, whether they be married or not, that allegation being false, it is a serious matter.
71. The evidence in sexual assault matters is frequently one on one, and with the exception that ST was able to provide information that led to clear evidence that he could not have committed the offence, it is highly likely that he would in fact have been charged with the offence alleged, and potentially suffered serious consequences, possibly even imprisonment, and being put to considerable expense to defend himself.
72. False allegations of this nature fundamentally undermine the justice system, and indeed, the credibility of complainants in sexual assault matters.
73. Although the offence of enter building with intent to commit, an indictable offence, carries the same maximum term of imprisonment as the offence of making a false statement, in this matter it is noted that the offender essentially conned her way to the residential floor of ST and was unable in the circumstances to carry out her intention of writing on his walls.
74. In those circumstances, considering the intention, I would assess the offence of enter building with intent as falling into the lowest range of seriousness for such offences.
75. The Court has been provided with a Victim Impact Statement from ST as to the impact on him and his family. It underlines the significance and impact of false allegation such as this. However, there is nothing contained in the Victim Impact Statement which takes the impacts out of what might ordinarily be expected.
76. In respect of subjective matters, the Court has before it evidence given by the offender on 8 June 2012; the references from Shreejan Shakya and Ms SC [amended], being Exhibit 5; a number of medical certificates, being Exhibits 3 and 4; and a psychiatric report from Dr Richard Furst dated 4 June 2012, being Exhibit 2.
77. The offender is a twenty-four year old Nepalese woman, who, prior to 8 June 2013, when bail was refused, was living alone in private rental accommodation. She is single woman with no dependents or social supports in Australia. She maintained regular contact with her family, who reside overseas, and is said to have had a close and supportive relationship especially with her mother. She was born in Nepal and is the middle of three siblings of her parents’ union.
Judge King noted that evidence from Dr Furst indicated that LFHY had suffered from depression since 2009 and was taking the medication Zoloft to assist with that condition. He referred to the Pre-Sentence Report from Tanya Mehri, dated 7 June 2012, which indicated that LFHY had failed to demonstrate any insight into the impact of her actions on the victim. When questioned about her report, Ms Mehri said LFHY had denied that the allegation of indecent assault was false but said she could not recall the date of the incident. Judge King, commenting on LFHY’s statement of remorse to the Court, said [at 108]: “It is difficult in the circumstances of her evidence and her statements to the pre-sentence officer to accept that her evidence provides any evidence of genuine remorse or contrition.” Noting LFHY’s changed pleas during the Court proceedings, Judge King concluded [at 113]: “In the circumstances, the Court finds that there is no acceptable evidence of genuine remorse or contrition.”
Judge King sentenced LFHY to three months imprisonment (maximum penalty of seven years’ imprisonment) for the ‘enter a building with intent’ offence – thus at the low end of the scale – and to two years’ imprisonment, with a non-parole period of one year for the false accusation offence (maximum penalty of seven years’ imprisonment) reflecting the seriousness with which the judge viewed the matter.
LFHY provided the Tribunal with a statement dated 26 September 2013 and a Statement of Facts and Contentions dated 10 October 2013, and gave evidence at the hearing. As recently as the RRT hearing on 14 August 2013, LFHY said the allegation she had made of sexual abuse on 30 October 2010 was “sort of true” (Statement of Reasons at [44]) but that the incident had not happened at the time she had alleged. LFHY also denied to the person preparing the pre-sentence report (dated 7 June 2012) for the Court, Ms Mehri, that the allegation of sexual abuse was false but rather advised that she could not recall the date of the incident. At the AAT hearing, LFHY said she accepts that she made a false accusation to the police: she is “an idiot” to have told the police that the victim sexually assaulted her. LFHY was unable to provide any other explanation than that she was not thinking properly, she was “lost” and did not know what she was doing at that time. With regard to the ‘enter a building with intent’ conviction, she said she had gone to the victim’s apartment building by herself and had knocked at his door. Again, she was unable to provide any explanation for her conduct.
The false accusation offence committed by LFHY was a serious offence for the reasons stated by Judge King quoted above. The ‘enter a building with intent’ offence was obviously regarded by Judge King as relatively minor. LFHY’s conduct in relation to the charges, the guilty pleas at the commencement of the trial, the later withdrawal of a guilty plea for the ‘enter a building with intent’ charge and then subsequent reinstatement of her guilty plea for that charge, together with her apparent prevarication over whether there was any substance to the allegation of sexual abuse, must inevitably raise questions about her credibility. However, as noted below, the medical evidence suggests she was suffering from depression at that time.
The risk to the Australian community should the person commit further offences or engage in other serious conduct
Paragraph 11.1.2 states:
(1)In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have 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. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.
(2)Decision-makers should also consider whether the purpose of the intended stay reflects strong or compassionate reasons for granting a short-stay visa. In making the risk assessment, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
b)The likelihood of the person engaging in further criminal or other serious conduct, taking into account:
i.information and evidence from independent and authoritative sources on the likelihood of the person re-offending; and
ii.evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
iii.the duration of the intended stay in Australia.
LFHY arrived in Australia on 18 December 2008 with the intention of studying. Her evidence is that her parents wanted their daughters to leave Nepal because of the threats to them from Maoist groups who were widespread in the community and in respect of whom girls/young women were particularly vulnerable. LFHY stated that she and her new husband had been living in his family home, which had been the subject of a Maoist bomb attack, and their respective parents thought it would be safer for them to leave the country.
LFHY also described how she had been sexually abused by Maoist rebels in August 2007 near her home in Kathmandu and after Maoist rebels threw the bomb into her husband’s family home. She said it was common for girls and young women to be sexually abused by Maoist rebels and she was a target because she was educated and they wanted her to join their group. LFHY said she had not mentioned this previously because she did not feel comfortable talking about such matters. She denied that she was embellishing what had happened to her in Nepal.
LFHY says that on arrival in Australia she enrolled in and subsequently completed a one year hairdressing course at Victoria Institute of Professional Training at Central in Sydney. She also studied for a Diploma of Accounting at Pacific College of Technology at Auburn which she did not ultimately finish. She completed volunteer work at hairdressing salons in Beecroft and Homebush, worked as a room attendant at the Quay Grand at Circular Quay, and worked for two to three months as a carer for her then boyfriend’s mother at North Ryde.
LFHY states that her husband left her about two months after they arrived in Australia saying he was going to work on a farm. Their marriage was arranged by her parents and, she says, was characterised from early on by domestic violence and arguments. She has had no contact with her husband since he left her and she has no knowledge of his whereabouts. They were divorced with effect from 18 August 2012. I note that her husband’s brother is LFHY’s younger sister’s husband. Her younger sister is studying nursing in Brisbane but LFHY said she has had no contact with her for about two years. She has tried to phone her sister several times without success.
LFHY said that while she was living in the Australian community, she consulted a general practitioner (GP) in Chatswood about her psychological condition because she could not sleep and was having nightmares. He diagnosed her as suffering from insomnia and depression and prescribed Zoloft. She could not afford to see a psychiatrist. LFHY said that since having been in custody, she has had treatment from a psychologist, has seen a psychiatrist (who also prescribed Zoloft), and has had counselling. She indicated that she has benefitted from this and has a better understanding of her condition as a result.
The Tribunal was provided with a report from a copy of a report dated 4 June 2012 from a forensic psychiatrist, Dr R Furst, who undertook a psychiatric assessment at the request of LFHY’s solicitors for the Court proceedings, and which is referred to in Judge King’s sentencing remarks. Dr Furst diagnosed LFHY as suffering from a Major Depressive Disorder. He noted that she reported symptoms “of persistent low mood, sadness, insomnia, high levels of anxiety, hopelessness and suicidal ideation”. He recommended that she be referred to a psychiatrist to review her treatment and to a clinical psychologist “to address her history of trauma, depression and anxiety”.
In an undated statement for the Department faxed on 8 August 2013, LFHY said that while in custody, she received:
… professional help to deal with my past and to focus more on my future. I have been seeing the psychologist Mr John Tzanis, seeing and talking to Chaplain Christine Gillies and the other Chaplains who attend the Centre.
Anglicare Chaplain, the Reverend C Gyllies, provided a reference for LFHY dated 10 January 2013, referring to their conversations:
I believe, from our conversations that Renuka increasingly appreciates the seriousness of her criminal behaviour & the affect [sic] of her actions on other people in the past & the present & that this will, hopefully, have serious bearing on the way she chooses to react & behave in the future
Documents provided by International Health and Medical Services (IHMS) in respect of her time in Villawood Immigration Detention Centre (since 7 June 2013) record LFHY having seen a counsellor, mental health nurse, doctor and to her referral to a psychiatrist. She was initially prescribed Zoloft for depression, but an IHMS report dated 18 September 2013 from Dr Absalan, Psychiatrist, who had seen LFHY that day, states that LFHY is now taking Lexapro 10 mg during the day and Seroquel 25 mg at night. Dr Absalan said that LFHY’s “sleep and anxiety problems have improved”. He stated as his diagnostic “impression”: “Depression and anxiety (improving). Dysthymia related to past trauma.” Dr Absalan said LFHY should continue counselling and referred her to ‘STARTTS’, the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors. Dr Absalan concluded:
I strongly recommend that she leaves the DC. The DC environment is stressful and can exacerbates [sic] her symptoms. SHe [sic] is a vulnerable girl for depression and anxiety. Her current environment can not protect her from further emotional trauma.
The Respondent tendered a Psychological Assessment Report dated 13 October 2013 for LFHY from Mirjana Askovic, a psychologist and ‘Senior Neurofeedback Counsellor’ at the NSW STARTTS to whom LFHY was referred by Dr Absalan. Ms Askovic referred to LFHY’s background, including her sexual molestation at the age of six, and to the bombing of her husband’s family home by Maoist rebels and their sexual abuse of her. Ms Askovic used two psychometric instruments - the Harvard Trauma Questionnaire and the Hopkins Symptom Checklist-25 - in her assessment. Ms Askovic said LFHY’s symptoms are indicative of Post-Traumatic Stress Disorder (PTSD) and Major Depressive Disorder. However, her symptoms are also consistent with Generalised Anxiety Disorder and:
Being a victim of child sexual abuse, Ms. Gurung is presenting with symptoms beyond Post Traumatic Stress Disorder, that is frequently considered in the literature as Complex Post Traumatic Stress Disorder (C-PTSD).
Ms Askovic concluded:
As a consequence of the multiple traumas she has experienced in her country of origin, Nepal, Ms. Gurung reports and presents with symptoms of Complex Post Traumatic Stress Disorder, Anxiety and Depression. Her main complaints are related to symptoms of hyperarousal and anxiety with a strong emphasis on somatic complaints.
Management of LFHY’s mental health requires a combination of a psychological intervention and a psychiatric assessment and treatment. …
LFHY completed a number of programs while in Dillwynia Correctional Centre and was employed in the Contact Centre (Telemarketing). A report from a Services and Programs Officer at the Centre, dated 3 May 2013, states that having worked with LFHY for several months, she had “always found her to be polite, respectful to myself, Officers, Managers and other offenders she is in contact with.” LFHY has one disciplinary offence while in custody, on 4 September 2012, for ‘Fail Main Person Clean’, for which she was reprimanded and cautioned.
LFHY provided the Tribunal with references from Ms SC, the owner of the granny flat in which LFHY lived from about September 2009 until she was taken into custody in June 2012. Ms SC also gave evidence at the hearing about the close relationship she and her three children developed with LFHY over this period such that Ms SC said that she regards LFHY as like a younger sister and her children regard her as an auntie. Ms SC talked of LFHY as like a member of her family and it is clear from her evidence, and that of LFHY, that they are close. Ms SC has continued to provide support to LFHY during her period in custody and detention, which was confirmed by the Services and Programs Officer at Dillwynia Correctional Centre. Ms SC visited LFHY on a regular basis in the Centre and since LFHY has been in Villawood and closer to her home, Ms SC has visited her weekly and they speak on the phone on most days. Ms SC described LFHY as a “lovely person”. She said LFHY “feels awful” about the offences she committed and “hates herself”. LFHY deeply regrets what happened and has matured since she has been in custody.
Ms SC’s sister also provided a reference (undated) for LFHY and gave evidence by conference telephone at the hearing. She talked of the close relationship between her sister, her sister’s children and LFHY, and described LFHY as “a very loving, caring person”.
LFHY expressed her remorse at her offences at the hearing. She was unrepresented and was clearly distressed at having to recall past events. In her letter to the Tribunal dated 26 September 2013, she said:
… I am very remorseful of the wrongs I did. I take full accountability of my behaviour and responsibility of my offences. I am serving a sentence for convictions I have struggled with for many years and this is the very reason I now write to you asking for consideration and compassion regarding my life-traps pattern of psychological problematic behaviour.
These insecurities followed me throughout my life and my past has been shaded by many depressing and traumatic experiences that starts in childhood and reverberates throughout life that I was damaged in some way. I was suffering from severe clinical depression and anxiety and that symptoms were controlling my thoughts and actions that I resorted to impulsive behaviour to fill the void that was missing in my life and spiralling out of control.
It is difficult to know what to make of the fact that LFHY has given different versions of some of the events that feature in her story. The medical evidence makes clear that she was, at the relevant times, and still is suffering from depression but, on the available evidence, I am unable to assess the effect this had on her behaviour and, in particular, how this may have affected her judgement. I am, however, satisfied that at the hearing she was genuinely contrite and remorseful in respect of her offending behaviour.
Given that LFHY evidences a better understanding of her mental state, and in the light of her good conduct in the period since the offending behaviour in late 2010, I am satisfied that there is a very low risk of her re-offending. The evidence of Ms SC is that LFHY made a positive contribution to her family and they, in turn, have been very supportive of her.
With regard to paragraph 11.1.2(2) of Direction 55 and “the purpose of the intended stay”, Ms Cumming, for the Respondent, drew my attention to the nature of the Bridging Visa which is the subject of LFHY’s application to the Tribunal. On 13 June 2013, after being transferred to Villawood, LFHY applied for a Bridging E (Class WE) visa in association with and for the purpose of awaiting the outcome of her protection visa application. Her protection visa application was refused and that decision was affirmed by the RRT on 19 August 2013. LFHY has made no further application in respect of the RRT decision. Thus, the Bridging Visa under review will have no utility given the rejection of the protection visa application.
Ms Cumming said that she had obtained instructions that, as at that time of the hearing, no other visa application or application for Ministerial intervention under s 417 of the Act had been made by or on behalf of LFHY. LFHY said she had spoken to her lawyer – in fact a migration agent, Mr Viswanath Pawar, the principal of Australian Visa Solutions – on the evening prior to the hearing and he told her that he would be lodging an application on her behalf. LFHY was not clear what the nature of that application might be.
Ms Cumming said if the outcome of the Tribunal proceedings is a decision to affirm the delegate’s decision, LFHY would be barred from making a further protection visa application following the RRT decision pursuant to s 48A of the Act. She would, however, be able to make an application for a Bridging R (Class WR) visa (pursuant to s 501E(2)(b) and regulation 2.12AA of the Migration Regulations 1994) pending her removal from Australia.
Ms Cumming said if the outcome is a decision to set aside the delegate’s decision and substitute a decision to grant the visa, the Bridging E (Class WE) visa could no longer be granted because the associated protection visa application has been refused. However, pursuant to s 48(1) of the Act, LFHY would be able to apply for a wider but still limited range of visas set out in regulation 2.12(1) of the Migration Regulations 1994, for example, a bridging visa for another purpose. Nevertheless, in terms of paragraph 11.1.2(2) of Direction 55, Ms Cumming contended it is not clear that the purpose of the intended stay reflects strong grounds for granting a short stay visa.
Conclusion on the first primary consideration
While I am satisfied that the risk of LFHY re-offending is very low, she has committed a serious offence and there is no longer a clear purpose to her bridging visa application following the refusal of her application for a protection visa. Given the low tolerance of the Australian community for visa applicants who have engaged in serious misconduct (paragraph 11.1(1), see above), the first primary consideration therefore weighs in favour of refusing LFHY’s application for a Bridging E (Class WE) visa.
BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
The second primary consideration that paragraph 11(1) of Direction 55 requires the Tribunal to consider is the best interests of minor children in Australia affected by the decision. This consideration only applies where the child is, or would be, under 18 years old at the time when the decision to refuse to grant the visa is expected to be made. Where there is more than one child under 18 years old, paragraph 11.2(3) states, “[i]f there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ”.
Paragraph 11.2(4) sets out a number of factors that must be considered (where relevant) in ascertaining the best interests of the child. These include:
a) The nature and duration of the relationship between the child and the person. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact …;
b) The extent to which the person is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18) ... ;
c) The impact of the person’s prior conduct and any likely future conduct, and whether that has, or will have, a negative impact on the child;
d) The likely effect that any separation from the person would have on the child, taking into account the child’s ability to maintain contact in other ways;
e) Whether there are other persons who already fulfil a parental role in relation to the child;
f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
…
LFHY has no children of her own. She states, and this is confirmed by Ms SC, that she has grown close to Ms SC’s three children since first moving into Ms SC’s granny flat in about September 2009. However, LFHY was in custody from 8 June 2012 to 7 June 2013 and has been in immigration detention since then. Ms SC has three children: a daughter aged 12, a son aged nearly 8, and a son aged 2. LFHY’s evidence is that Ms SC and her children are like her second family and she feels very attached and close to them. She used to play with the children and, Ms SC said, the children liked going to visit LFHY in the granny flat where they would spend time together. Ms SC described LFHY as like a younger sister who was always willing to help out with the children, play games with them and help with their homework, especially if Ms SC was busy.
Ms SC said while LFHY was in custody at the Dillwynia Correctional Centre, which is some distance from Ms SC’s home, she would visit LFHY every five or six weeks, usually with the children, for about one and a half hours. However, they would also speak on the phone regularly. Since LFHY has been closer, in Villawood Detention Centre, Ms SC said she visits her about once a week, most recently three days before the hearing. They also speak on the phone most days. Ms SC said her two older children have not recently visited LFHY in Villawood because they do not feel comfortable there; recently Ms SC has only been taking her two year old with her. Her daughter has not seen LFHY for about two months and her older son for about a month.
Ms SC’s sister also gave evidence that it was apparent from her visits to her sister’s house that the children loved LFHY and often spent time with her. Ms SC and her sister both described LFHY as being a part of their family.
I am satisfied from the evidence that LFHY established a close relationship with Ms SC’s children during the approximately two years and nine months she was living in the granny flat and that she was very supportive of them. Inevitably, that relationship has lacked physical closeness while LFHY has been in custody and immigration detention although there has been continuing contact. The relationship is non-parental and appears to be more akin to that of a close family relation. There is no specific evidence of the effect of separation from LFHY on the children or as to the views of the children. However, I accept that the children feel close to LFHY and would be upset and miss her company if she has to return to Nepal, especially the older children by reason of their greater maturity. It seems likely that they could maintain contact by electronic means although this is a poor substitute for physical contact.
In view of the evidence as to the nature of LFHY’s relationship with the children, being a non-parental one, and the lack of any specific evidence about each child, there is nothing to differentiate the best interests of one child from another. Ms Cumming contended that the children’s interests should, more appropriately be dealt with as ‘Other Considerations’ under paragraph 12. Given that the evidence indicates LFHY’s relationship with the children appears to be that of a close, supportive family member, Ms Cumming’s contention has some substance. In any event, while Ms SC’s children might prefer that they not be separated from LFHY and will be sad about this, I am not satisfied that it will have any greater effect. I do not, therefore, regard this primary consideration as having any great weight although it favours LFHY’s application for a bridging visa not being refused.
International non-refoulement obligations
The third primary consideration that paragraph 11.3 of Direction 55 requires the Tribunal to consider whether Australia has any international non-refoulement obligations to the person. While those obligations must be given consideration if the person is in Australia, subparagraph 11.3(2) provides that the existence of a non-refoulement obligation does not preclude refusal of a person's visa because the power to refuse a visa is a fundamental exercise of Australian sovereignty. Any non-refoulement obligation must be weighed carefully against the seriousness of the person’s criminal offending. Paragraph 11.3(3) specifically refers to non-refoulement obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention against Torture), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).
The application for a bridging visa under consideration in these proceedings was made in association with LFHY’s protection visa application, which was refused, a decision that was affirmed after a review by the RRT. The RRT Member’s statement of reasons for her decision impresses me as a well-reasoned and comprehensive review. The Member identified the issue before her as whether LFHY has a well-founded fear of being persecuted for a reason enumerated in the Refugees Convention or, if not, whether she meets the Complimentary Protection criterion referred to in s 36(2)(aa) of the Act. This provision states that a criterion for a protection visa is that the applicant is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.
The words ‘significant harm’ are explained in s 36(2A):
A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
The protections afforded by this provision address many of the rights sought to be protected by the Convention against Torture and the ICCPR.
The RRT Member considered whether LFHY would suffer ‘significant harm’ and concluded that she was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of LFHY being removed from Australia to Nepal, there was a real risk that she will suffer significant harm.
Ms Cumming noted that LFHY had not sought judicial review of the decision to refuse her a protection visa or contended that the RRT had made a jurisdictional error. Ms Cumming submitted that there is no evidence that LFHY is owed protection obligations. In my view, this issue has been carefully considered by the RRT, there appears to be no new evidence except that in relation to the alleged sexual assault of LFHY by Maoist gang members, which appears not to have been raised by LFHY until she was assessed by Ms Askovic. She did not mention this during the Court or RRT hearing or to Dr Furst. Whilst I appreciate such matters are very personal and sensitive, I find it difficult to understand why this was not raised at the very least in the context of her protection visa application when the sexual abuse by her uncle was discussed. This obviously undermines the credibility of her allegation. I also note that the events in question occurred at least five years ago and the RRT Member indicates that information on the situation in Nepal indicates that the situation has changed.
I am not satisfied on the evidence before me that Australia has international non-refoulement obligations to LFHY which favour her being granted a bridging visa, especially in the light of her application for a protection visa being refused. Thus, this consideration does not weigh does not weigh in favour of LFHY being granted a bridging visa.
OTHER CONSIDERATIONS
As noted above, paragraph 12 of Direction 55 provides that ‘other’ considerations, where relevant, must be taken into account. However, subparagraph 8(4) states that primary considerations should generally be given greater weight. Paragraph 12(1) states:
… These considerations include but are not limited to:
a) Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely;
b) Impact of a decision to grant a visa on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims, where that information is available and can be disclosed to the person being considered for visa refusal;
c) Impact on Australian business interests if the person’s visa application is refused.
LFHY has a younger sister in Brisbane studying nursing. She holds a bridging visa and has no right to remain in Australia indefinitely. LFHY’s evidence is that she does not have any current contact details for her sister and they have not spoken for two years. There are no relevant business interests that would be affected by LFHY’s application for a bridging visa being refused.
I accept that LFHY has become close to Ms SC’s family and that Ms SC and her children will be upset if LFHY is not permitted to remain in Australia. However, as Ms Cumming pointed out, the decision under review is a decision to refuse a bridging visa for a limited purpose and would not, of itself, permit LFHY to remain in Australia except for that limited purpose.
Another consideration is LFHY’s mental health. In his report for the Court dated 4 June 2012, Dr Furst diagnosed LFHY as suffering from Major Depressive Disorder. He recommended that she should be referred to a clinical psychologist for counselling to address her history of trauma, depression and anxiety. It appears that LFHY had counselling while in custody and has continued treatment while in Villawood. Dr Absalan, Psychiatrist, in a report dated 18 September 2013, records his impression of LFHY’s mental state as “Depression and anxiety (improving)” and “Dysthymia related to past trauma”. He recommended her referral to STARTTS, and a report dated 13 October 2013 from Ms Askovic, Psychologist, states that LFHY’s symptoms are consistent with her suffering from PTSD and Major Depressive Disorder.
LFHY’s evidence indicates that she has greater awareness of her mental state and has benefitted from treatment. Ms Askovic recommends that LFHY is provided with regular psychological support pending resolution of her visa application.
CONCLUSION
Paragraph 7(1) of Direction 55 requires the Tribunal, informed by the principles set out in paragraph 6.3, to determine whether the risk of future harm is unacceptable, balancing the likelihood of future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community. The principles in paragraph 6.3 include, relevantly, taking into consideration that being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are law-abiding and will respect important institutions, that a non-citizen who has committed a serious crime should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia, that 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 for only a short period of time, particularly visa applicants or those holding a limited stay visa, and the consequences of a visa refusal for minor children and other immediate family members in Australia.
As stated above, the first primary consideration, the protection of the Australian community, weighs in favour of refusing LFHY’s application for a Bridging E (Class WE) visa. It is questionable whether Ms SC’s children’s best interests should be considered as part of the second primary consideration or whether their interests should be considered as part of the ‘other considerations’. In any event, I accept that the Ms SC’s children will be upset if LFHY is not permitted to remain in Australia, as will Ms SC (an ‘other consideration’), but whilst they may be close, their connection is of relatively recent origin, they are not family members and their interests, while favouring LFHY being granted a bridging visa, do not weigh as heavily in the decision-making process in this case as the protection of the Australian community. In relation to the third primary consideration, as stated above, I am not satisfied on the evidence that Australia owes any non-refoulement obligations to LFHY. With regard to the ‘other consideration’ of LFHY’s mental health, I recommend that LFHY should continue to have access to appropriate psychological support for the duration of her stay in Australia.
I note that paragraph 8 of Direction 55 (see above) emphasises that a visa applicant should have no expectation that a visa application will be approved. The decision under review is to refuse an application for a bridging visa associated with a protection visa application. That protection visa application has now also been refused. In that context and on the particular facts of this case, having weighed the relevant considerations, I have concluded on the basis of the approach dictated by Direction 55 in relation to such a bridging visa application, the risk of future harm to the Australian community is unacceptable and that LFHY’s bridging visa application should be therefore be refused.
DECISION
The decision under review is affirmed.
I certify that the preceding 68 (sixty -eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley. ...............................[SGD].................................
Associate
Dated: 25 October 2013
Date(s) of hearing 16 October 2013 Date final submissions received 16 October 2013 Applicant In person Advocate for the Respondent J Cumming, solicitor Solicitors for the Respondent Clayton Utz Lawyers
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