Mahmood (Migration)

[2019] AATA 1796

Mahmood (Migration) [2019] AATA 1796 (23 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Raheel Mahmood

CASE NUMBER:  1833334

HOME AFFAIRS REFERENCE(S):           BCC2018/4134302

MEMBER:Kira Raif

DATE:23 May 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Statement made on 23 May 2019 at 2:51pm

CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – ground for cancellation – risk to safety of Australian community or individual – charged with possession of child abuse material – pleaded guilty – risk of further offending exists – consideration of discretion – very serious offence – purpose of visa not fulfilled – decision under review affirmed

LEGISLATION
Crimes Act 1900 (NSW), s 91H
Migration Act 1958 (Cth), s 116

CASES
COT15 v MIBP (No.1) [2015] FCAFC 190
Gong v MIBP [2016] FCCA 561
MIBP v Le [2016] FCFAC 120
Tien v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 7 November 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 485 (Temporary Graduate) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of Pakistan, born in June 1982. He was granted the Class VC visa on 23 February 2018 and travelled to Australia on 7 August 2018. On the same day the applicant was charged with a number of offences. On 8 October 2018 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) under s.116(1)(e) of the Act. The applicant provided a written response to the NOICC and his visa was cancelled on 7 November 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 21 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(e). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

5. A visa may be cancelled under s.116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].

6. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

   Does the ground for cancellation exist?

7. The applicant provided to the Tribunal a copy of the primary decision. It indicates that the applicant arrived in Australia on 7 August 2018. The applicant’s mobile phone was checked by Australian Border Force (ABF) officers, who identified four video clips in the WhatsApp messenger application. One of the videos showed male children apparently aged between 13 and 17 engaging in sexual acts. Three other videos were of children apparently aged between 3 and 8 years, with their genitals visible.

8. The applicant was arrested and taken to the police station where he participated in an interview. In that interview the applicant admitted that he had viewed all four video files and had them for a long period of time. The applicant stated that the first video was sent to him by a friend. He said that the video made him cry when he viewed it and that it was cruel but he did not report it to the authorities or delete it. The applicant said that he believed the video should be reported to the authorities. The applicant also confirmed that he viewed the other three videos but thought they were more humorous in nature. The applicant confirmed he did not have any work or study related reasons for possessing the videos.

9. On 7 August 2018 the applicant was charged with the following offences:

   a.Use carriage service to access child pornography

   b.Use carriage service to access child abuse material.

10. In his submission to the delegate the applicant notes that there were two types of video clips. Children of African appearance apparently under eight years of age where genitals of some children were visible. The applicant states that some children were wearing shorts and some did not. The applicant requested that the intention of the people who recorded the video and shared on Indian Humour YouTube channel and these were viewed purely for art and humour. The applicant states that the dominant characteristic of this material was not the depiction, description or representation for a sexual purpose. He states that he chose to delete these clips keeping in mind Australian values of child protection.

11. The applicant states that the other video clips of male children engaging in sexual acts made him cry and he thought it was a cruel act. His intention was not to take pleasure or promote the sexual act. The applicant states that the hypocrisy of the recorded material is apparent. His friends and family know he is ‘touchy’ about sexual exploitation of children and openly discusses his views about sick-minded people in society. The applicant states that as a responsible member of Pakistani and Australian society, he would take every opportunity to protect the children and expose hypocrisy. The applicant claims his intention was to look for the people engaged in such videos and expose them publicly to protect the rights of children.

12. The applicant states that his intentions are important. He thought that dancing young boys were part of innocent humour and did not know about possible repercussions under the Australian law. Such clips are available on the Indian YouTube channel. He has been caught between differences of cultural and legal norms of the two countries as such material was humorous in one country and offensive in the other. This appears to contradict the applicant’s earlier statement that he chose to delete these clips keeping in mind Australian values of child protection. This statement suggests that the applicant was well aware that the three clips were contrary to the Australian legal and cultural norms and that the applicant was aware of such norms. That is the reason he claims to have deleted the clips. The Tribunal does not accept the applicant’s subsequent claim that he did not appreciate the cultural differences and did not realise the material was offensive in Australia.

13. The applicant states that his intention in viewing the other video was to expose the perpetrators and help protect Pakistani children from exploitation and blackmailing. The Tribunal does not accept that submission. Firstly, there is no evidence that the applicant has taken any steps to report the filming or the activities relating to the recording of the video to any authorities, either in Pakistan or in Australia. In the Tribunal’s view, if the applicant did have an intention of exposing the child exploitation, he could have acted on that intention. Secondly, it is not entirely clear how keeping the video and watching the video would help the applicant fight against child exploitation, in the absence of any other action. The applicant confirmed in oral evidence to the Tribunal that he has not reported the video and had not done anything about it. The applicant said in oral evidence that he should have informed the community and the authorities but he did not do anything about it.

14. The applicant notes that the clips were forwarded to him and he later deleted these. The applicant states that he was unaware of the WhatsApp feature of keeping copies of deleted messages and he was unable to delete the objectionable material from the backup storage but he has done the right thing by deleting the material on his phone. The applicant provided a statement from an IT security specialist confirming the back-up processes used by WhatsApp and that evidence was also submitted to the Tribunal.

15. The applicant states that he has no inclination towards paedophilia, has no history of actively searching or seeking such material internationally, has never considered producing, directing or promoting pornographic material, and he deleted the objectionable material from his end. He is a family man with a wife and child. The statement from the applicant’s wife confirms that he has no inclination towards child abuse and does not enjoy pornographic material and is an innocent victim of such material being forwarded to him, which he deleted. He does not have a criminal history. He presented his Australian police certificate.

16. The applicant subsequently provided to the Tribunal a number of supporting statements. A statement from his wife indicates that the applicant is a loving husband and ideal father. It stats that there have been incidents of child abuse reported in Pakistan, which left the applicant annoyed and he had been discussing it with others and with non-governmental organisations (NGOs). Ms Raheel refers to the videos shared on WhatsApp but states that the applicant does not have ‘the slightest inclination’ towards child abuse and does not enjoy pornographic material, and he is an innocent victim of such material, which was forwarded to him. The Tribunal also acknowledges the character reference submitted by the applicant.

17. The applicant presented a statement from Ms Moussa, a registered psychologist, which indicates that the applicant attended an initial consultation in October 2018 and requested a letter to support his visa process. In the Tribunal’s view, such a letter would be of little probative value, if issued before the applicant was assessed or before he had commenced any treatment or had a consultation with the health professional.

18. The applicant provided to the Tribunal evidence that the two charges specified above have been withdrawn. The statement indicates that a fresh charge of Possession of child abuse material was filed, under s.91H(2) of the Crimes Act 1900 (NSW) (the Crimes Act). The applicant told the Tribunal that on his lawyer’s advice, he pleaded guilty because the material was on his phone, even though he did not download or distribute the material. The applicant said that he would be sentenced in the following month.

19. The applicant told the Tribunal in oral evidence that the information on WhatsApp was automatically stored on his phone and he deleted it but did not realise it was stored on his phone. The applicant said that he had the material because he thought it was funny material and there was nothing special about it.

20. The applicant said that he is a family man and has a five year told son and also takes care of his brother’s family. He would not do anything like that and cannot, given his family commitments. The applicant said that some of the videos were sent by family members because they were funny and for fun and not for any other reason. He said that no one is addicted to pornography.

21. The Tribunal notes that the applicant pleaded guilty to the offence of Possession of child abuse material under s.91H(2) of the Crimes Act. The applicant claims that the videos were unsolicited and that he did not actively obtain or disseminate the videos and deleted these from his phone. However, he did have this material on his phone. The Tribunal has rejected the applicant’s evidence that he kept the material on the phone because he wanted to raise it with the authorities or report the matter because the applicant admits that he had not taken any steps to do so. The Tribunal considers it problematic that the applicant considers some of this material as ‘humour’ or being done for fun as the applicant appears to have little appreciation of the seriousness of such conduct and the harm that it can cause to others.

22. The Tribunal considers the nature of the offence to be extremely serious and one that can potentially cause harm to the safety of a segment of the Australian community (children). The Tribunal is not satisfied that the applicant fully recognises the seriousness of the conduct, which raises concerns as to the risk of the applicant engaging in such conduct in the future. The Tribunal acknowledges the applicant’s claim that he is not addicted and not interested in child pornography, as well as statements from his wife and others but the Tribunal has formed the view that a risk of further offending exists, even if it is minimal.

23. The Tribunal is satisfied that the presence of the applicant in Australia may be a risk to the safety of a segment of the Australian community, being children. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

24. There are no matters specified in the Act or Migration Regulations 1994 that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

25. The applicant states in his written response to the NOICC that the purpose of his travel to Australia was to undertake a Master of Business Administration. After completing that course, he was granted a Skilled visa in February 2018. During the period of that visa, he intended to get professional and business experience in Australia and later contribute to Pakistan’s economy based on his learning in Australia.

26. The applicant told the Tribunal that after completing his Master’s, he was given a two year visa and his plan was to complete the two years and return to his home country. The applicant states that he lost his brother and he now has the responsibly for his brother’s family. He wants to complete the period of his visa and work in Australia to support the two families. The applicant said that he is working in a car wrecking business and his work is not related to his study.

27. The Tribunal acknowledges that the applicant was able to obtain the Skilled visa to which he was entitled to after completing his course in Australia. However, the applicant is not working in his field and is not utilising the skills he acquired in the Australian course in his employment. The applicant’s evidence is that the primary purpose of his stay in Australia is to save funds to support family overseas. The Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    The extent of compliance with visa conditions

28. The Tribunal is not aware of the applicant not complying with any visa conditions.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

29. The applicant states in his response to the NOICC that he has ‘gone into depression’ and sought help from the psychologist. The Tribunal has had regard to the statement from the psychologist but notes that there is no evidence of ongoing treatment.

30. The applicant states in his submission to the delegate that the cancellation of the visa while his case is before the courts would limit his access to pursue legal help and clear his name. The Tribunal notes the applicant’s evidence that he entered the plea of guilty and is now due for sentencing. Thus, the Tribunal does not accept that the applicant’s capacity to deal with his criminal would be affected as a result of the cancellation. The applicant claims that his name may be reported to the Pakistani community in Australia and in Pakistan where he will not be able to live safely as child sex offenders can be executed in Pakistan. The Tribunal is mindful that if that was the case, any hardships would arise as a result of the applicant being charged or convicted of offences, not because of the cancellation of the visa. The applicant’s evidence to the Tribunal is that he is working on clearing his name in Pakistan and that it was always his intention to return to Pakistan at the expiry of his visa.

31. The applicant presented with his application a statement from Ms Moussa, a registered psychologist at Punchbowl Family Health Care. Ms Mousa states that the applicant attended initial consultation on 17 October 2018 and requested a letter to support the visa process. It appears that the purpose of the applicant’s approach to the psychologist was to assist him with visa cancellation and not to seek treatment and Ms Moussa does not indicate in that letter that treatment was sought or undertaken.

32. The applicant told the Tribunal that his reputation in the community has been affected and he is stressed and depressed and he needs more time to clear his name. The Tribunal is mindful that the applicant’s evidence is that he pleaded guilty to the offence and it is not clear how the applicant’s reputation would improve once his visa expires and he returns to his home country in early 2020, as he claims he intends to do. The applicant told the Tribunal that he intends to speak to the community and the NGOs and he would be helped by long term friends who are supporting him. The applicant said that it takes time to improve his image. He does not want his son and his partner to be affected. The applicant states that he needs time to build his confidence and to build up his image in the community as he does not want his case to affect his son. The Tribunal acknowledges that evidence and accepts that it is the applicant’s preference to remain in Australia for a longer period.

33. The Tribunal also acknowledges that the applicant has been providing financial support to his family and his brother’s family. He wants to work longer in Australia to have some savings. While the Tribunal accepts that the applicant has been employed in Australia, he also submits that he would be able to get a job in Pakistan. The applicant said that it would be hard for him to get a job in Pakistan, because he never worked in Pakistan, but the Tribunal is mindful that the applicant obtained an MBA in Australia, presumably with the intention of seeking employment overseas. The Tribunal is not convinced on the evidence before it that the applicant would be unable to provide the financial support to the family if he were to work outside of Australia. Nevertheless, the Tribunal accepts that the applicant has a job in Australia and that there can be no absolute certainty that he would be able to get a job in Pakistan, so the cancellation of the visa and the applicant’s departure from Australia may cause some financial hardship.  

1. Overall, the Tribunal accepts that some hardship would be caused as a result of the cancellation of the visa.

   Circumstances in which ground of cancellation arose

2. The applicant states in his response to the NOICC that he was asked to hand over his mobile phone by an ABF officer for a random check when he was returning from Pakistan. He offered his phone voluntarily and the ABF officer retrieved some of the deleted material through WhatsApp. The material was said to be pornographic material of children and the matter was referred to the Australian Federal Police. He has been granted bail.

3. As noted above, these two charges have been withdrawn but the applicant’s evidence to the Tribunal is that he pleaded guilty to the charge of Possession of Child Abuse Material contrary to s.91H(2) of the Crimes Act. The applicant states that he is deeply sorry for the offences which he may have committed unknowingly and he respects the Australian values and the rights of children. The applicant told the Tribunal that his circumstances have affected him and the community.

   Past and present behaviour of the visa holder towards the Department

4. Nothing adverse is known about the applicant’s past and present behaviour towards the Department. The applicant told the Tribunal that his behaviour was very good and he was supportive. He also reported when required and he was granted bail because of his good behaviour.

   Whether there would be consequential cancellations under s.140

5. There are no persons affected by the consequential cancellation.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

6. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia and he may be subject to an exclusion period in relation to some future visa applications. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention although there are limited types of visas for which the applicant may be able to apply onshore. The cancellation of the visa may also affect the applicant’s ability to seek a permanent visa onshore although his evidence to the Tribunal is that he planned to return to Pakistan upon the expiry of his Skilled visa.

   Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

7. The applicant told the Tribunal that it is still too early for him to return to Pakistan and he and his family would be affected. The community would know that he is affected by these issues and his brother is working hard with the community to clear his name. The Tribunal notes that the applicant presented no evidence to indicate that the community is aware of his conduct or conviction or that he is of any adverse interest to the community. The Tribunal is not prepared to support the applicant’s claims without probative supportive evidence.

8. In any case, the Tribunal is mindful that the applicant has the option of seeking another visa in Australia, such as a protection visa. In COT15 v MIBP (No.1) [2015] FCAFC 190 the Full Federal Court upheld a Tribunal decision affirming the cancellation of a Subclass 101 (Child) visa in which the Tribunal dealt with claims relating to non-refoulement obligations by referring to the fact that such claims could be canvassed in an application for a protection visa. The Full Court noted that the Act contemplates that those obligations will be considered in the context of a protection visa application. In MIBP v Le [2016] FCFAC 120, the Full Federal Court, agreeing with COT15 v MIBP (No. 1), held that an assessment of Australia’s non-refoulement obligations is not a mandatory consideration where it is open for the visa holder to apply in Australia for a protection visa. Accordingly, the Tribunal finds that if the applicant believes he is entitled to Australia’s protection, he can engage Australia’s protection obligations through a different visa process.

9. There are no children in Australia who would be affected by the cancellation. The applicant told the Tribunal that his son is in Pakistan and he is also a carer for his brother’s children. The applicant claims that it is too early for him to return to Pakistan before his name is cleared and he needs more time, otherwise his son may be affected. The applicant also refers to the financial support he provides to his family. The Tribunal accepts that the children could benefit from the applicant remaining in Australia but is mindful that the children do not live in Australia.

10. The Tribunal finds that Australia’s international obligations would not be breached as a result of the cancellation.

11. The applicant has not raised any other matters.

12. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal found that the applicant’s presence in Australia may be a risk to the safety of a segment of an Australian community (children). The Tribunal considers the offence of possession of child abuse material to be a very serious one, while acknowledging the applicant’s claim that he was an innocent victim and not interested in child pornography. The Tribunal has rejected the applicant’s evidence as to why some of the material remained on his phone.

13. The Tribunal accepts that the cancellation of the visa would cause some hardship to the applicant, particularly because he wants to remain in Australia and work here to support his family and also because he believes it is too early for him to return to Pakistan. The Tribunal also accepts that the cancellation of the visa would have financial repercussions for the applicant and would affect his future applications. The Tribunal has found that the cancellation would not affect Australia’s international obligations and there are no consequential cancellations. The Tribunal acknowledges that the applicant was entitled to the visa after he completed his study in Australia but the Tribunal notes that the applicant is not fulfilling the applicant’s stated purpose of his stay in Australia as he is not working in his field and there is no compelling need for the applicant to remain in Australia.

14. The Tribunal places greater weight on the circumstances in which the ground for cancellation arose, in particular the nature of the offence. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    DECISION

15. The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

    Kira Raif
    Senior Member