Moreau and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 7
•11 January 2021
Moreau and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 7 (11 January 2021)
Division:GENERAL DIVISION
File Number: 2019/5462
Re:Dr Julie Moreau
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Ms A E Burke AO, Member
Date:11 January 2021
Place:Melbourne
The Tribunal:
(a)sets aside the decision under review, pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth); and
(b)under section 43(1) of the Administrative Appeals Tribunal Act 1975, the Tribunal substitutes a decision that the Applicant not be refused a Visitor Short Stay Visa (Class FA) under section 501(1) of the Migration Act 1958.
..............[sgd]..........................................................
Ms A E Burke AO, Member
Catchwords
MIGRATION – refusal of visa on character test – criminal record – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk of reoffending – expectations of the Australian community – decision under review set aside.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
DKXY v Minister for Home Affairs [2019] FCA 495
Jupp and Minister for Immigration and Multicultural and Indigenous Affairs, Re [2002] AATA 458
Murphy v Minister for Immigration and Border Protection (Migration), Re [2018] AATA 750
Rabino and Minister for Immigration and Border Protection (Migration), Re [2016] AATA 999
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583FYBR v Minister for Home Affairs [2019] FCAFC 185
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Ministerial Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, 20 December 2018
REASONS FOR DECISION
Ms A E Burke AO, Member
January 2021
Dr Julie Liliane Marguerite Moreau (the Applicant) is seeking to review a decision made by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) to refuse her father, Mr Philippe Denis Louis Moreau, a Visitor Short Stay Visa (Class FA) (Visitor Visa) on the grounds that he does not pass the character test.
On 11 November 2017 a delegate of the Minister issued Mr Moreau a notice of intention to consider refusal to grant him a Visitor (Short Stay) Visa under s 501(1) of the Migration Act 1958 (the Act).
On 20 August 2019 a delegate of the Minister made a decision to refuse Mr Moreau's application for a visa under s 501(1) of the Act. The delegate found that Mr Moreau did not pass the character test, as set out in s 501(6) of the Act. In particular, the delegate found that Mr Moreau failed to meet s 501(6)(a) of the Act, as he had a substantial criminal record (as defined by s 501(7)). The delegate found that there were no sufficient countervailing considerations in Mr Moreau's case to warrant the Australian community accepting any level of risk. The delegate decided to exercise the discretion to refuse the visa. In accordance with s 501(1) of the Act, the consequence of this decision was that Mr Moreau's application for a Visitor Visa was refused.
On 29 August 2019 the Administrative Appeals Tribunal (the Tribunal) received an application from Dr Moreau, Mr Moreau’s daughter and sponsor, lodged under s 500(1)(b) of the Act. Dr Moreau sought review of the decision to refuse to grant her father's visa as she believed the delegate's decision was incorrect:
I lodge this appeal because we believe that there is sufficient evidence to demonstrate that the applicant does not present a risk to Australia or its people. While we respect and understand the authorities' wish to protect Australia, in this instance these controls are preventing a father from visiting his daughter in the country she has been living and working in for 7 years. I, Dr Julie Moreau (PhD) have built my life in this country. I was granted Australian citizenship in 2017 and met my life partner here in 2013. We ask that the appeal be considered on compassionate grounds to allow me the opportunity to share my daily life with my father, with whom I have built a relationship.
We ask that the appeal be reconsidered on the following evidence:
the condemnation resulted from a familial case, unique and accidental
the applicant's civil, civic and family rights have been maintained
the applicant has maintained a professional role with the same employer for 22 years in a sensitive area (nuclear power) with permanent authorisation to enter French nuclear pants, this authorisation was granted after thorough governmental investigation
the applicant was elected by the staff as Union Representative and Delegate to represent the interest of the staff in a negotiation with the management and is currently exercising the 4th mandate
no other condemnation in the past 23 years or before the regrettable event’s
yearly income over the French average showing compete financial autonomy no current debts or mortgage
The given evidence shows no threat for Australia and its people. We request that this application for a tourist visa be reconsidered after a detailed analysis of the actual risk for the country. We are confident that the real threat is null and hope for an opportunity for Dr Moreau to share her life in Australia with her father.
At the hearing of this application on 5 October 2020 by telephone Dr Moreau was self-represented and Mr Keith Sypott, solicitor advocate from the Australian Government Solicitor, appeared for the Minister. The Tribunal was assisted by an interpreter in the French language. The Minister lodged a set of paginated documents (the G-Documents). The applicant provided numerous supporting documents. Dr Moreau and Mr Moreau provided evidence under affirmation.
ISSUES
There are two central issues before the Tribunal in this application for review:
(a)does Mr Moreau pass the character test in s 501(6) of the Act; and
(b)if Mr Moreau does not pass the character test, should the Tribunal exercise its discretion to not refuse the visa?
LEGISLATIVE FRAMEWORK
Section 501(1) of the Act gives the Minister the power to refuse to grant a visa if a visa applicant is unable to satisfy the Minister that he or she passes the character test. The term character test is defined in s 501(6) of the Act. Relevantly for this matter, ss 501(6) and (7) provide that:
(6) 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)); or …
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more;
If a person is found not to pass the character test, the discretion to refuse the visa must be considered. Under s 499(1) of the Act, the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. A person or body having those functions or powers, including the Tribunal, must comply with any relevant direction (s 499(2A) of the Act; see also Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J). Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction) is a direction made under s 499 of the Act and provides guidance for decision-makers performing functions or exercising powers under s 501 of the Act (paragraph 6.1(4) of the Direction).
Paragraph 6.1 of the Direction outlines the objectives of the Act and the Direction, stating in part:
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2) Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
Paragraph 6.2 of the Direction sets out General Guidance relating to the Government’s intention:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
…
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501… The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B…
The principles referred to in the General Guidance (and reproduced below) constitute a framework within which decision-makers apply the considerations in Parts A, B, or C of the Direction (paragraph 6.3):
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing a visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) 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.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal 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.
In deciding whether to exercise the discretion to refuse to grant a visa, the Tribunal should have regard to the primary and other considerations in Part B of the Direction. Paragraph 11(1) of the Direction provides that the primary considerations are:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian Community.
Paragraph 12(1) provides that the other considerations that must be taken into account, where relevant, include (but are not limited to):
a) International non-refoulement obligations;
b) Impact on family members;
c) Impact on victims;
d) Impact on Australian business interests.
EVIDENCE
A Criminal Record issued by the French Republic Ministry of Justice dated 27 May 2019 records that on 22 June 1999 Mr Moreau was convicted of murder by the Crown Court of the Yvelines, Versailles, the offence was committed on 30 April 1996. Mr Moreau was sentenced to 10 years’ imprisonment, and five years’ loss of all civil, civic and family rights.
A translated copy of the order ruling on Mr Moreau’s application for a reduced sentence dated 25 January 2001 states:
That even though the expertise assessment, which was done on 28th May 1996, notes that Mr. MOREAU is lacking affection, is very rigid and dualistic, it however mentioned that as a hard-working, meticulous and thrifty person, he is not dangerous to the extent that he does not feel stripped of what he has invested in terms of affection;
Given that Mr. MOREAU is making serious efforts to integrate back into society;
That, in fact, each month of his own accord he gives compensation to the civil parties of up to FF150, in addition to the compulsory deductions taken out of his salary;
That, furthermore, Mr. MOREAU's behaviour in detention has been exemplary; he works in the workshop and goes regularly to the department's pedagogical unit which he has been assigned to;
Given that Mr. MOREAU benefits from a job offer dated 15th June 2000;
That this job offer should facilitate his reintegration into society;
That in effect this job offer is from his former employer, in whose company he had a position of technical sales engineer for over three years before he was imprisoned;
That this employer has remained firm with his job offer over the last few months;
That Mr. MOREAU has been followed by a medical and psychological service (SMPR) over the past 4 years, and according to Mr. MOREAU, this was discontinued because of his positive improvement;
Given that during his hearing by the Judge on 25th January 2001, Mr. MOREAU suggested reimbursing the civil parties for the sum of up to FF 1500-2000;
That in relation to his gross monthly salary, which totals FF 19,146, it would be appropriate to fix the sum at FF2000.
FOR THESE REASONS
Ruling in the first instance,
Obtaining, as per the stipulation mentioned hereafter, conditional release as from 5th February 2001 up until 21st January 2004, which is the expiry date of support and assistance measures;
Stating that Mr. MOREAU must respect the special obligation as follows:
justify the payment of the amount due to the civil parties for a minimum amount of FF2,000 per month;
A translated copy of Mr Moreau’s application to be granted admission to nuclear centres from the Ministry on the protection of Nuclear Power Stations dated 10 September 2012 states:
In this context, a police record investigation was carried out.
These services sent me an unfavourable decision which is based on the facts held against you, which I should take into account when considering the safety imperatives inherent in the functioning of a nuclear power station.
However, I have decided not to follow the decision sent by the above, but am informing you that the slightest unfavourable report brought to my attention, which would occur on your access to a nuclear site, would result in an immediate refusal of access.
A translated copy of Mr Morea’s Notification of Conditional Release from the High Court of Justice in Versailles (France) dated 6 February 2001 provides:
Mr. Philippe Moreau, eligible for conditional release, following the decision dated 25th January 2001 by the Judge in charge of Sentence Enforcement in Evreux, is up until 21st January 2004, date set by the Eligibility Decision on 25th January 2001, subject to the following supervision measures:
1) reside at the address indicated in the conditional release decision
2) respond to the summons from the Sentence Enforcement Judge or the competent probation officer
3) receive visits from the probation officer and provide him with information and documents enabling the officer to verify his means of support and fulfilment of duties
4) inform the probation officer if he changes his job and if such changes are an obstacle to his fulfilling his obligations and obtain prior authorisation from the Sentence Enforcement Judge
5) obtain authorisation from the Sentence Enforcement Judge prior to any journey which will last more than 2 weeks, including any trip outside the country
The maintenance of conditional release is also subject to adherence to the following conditions set out by the conditional release decision:
1) refrain from appearing in all specially designated places
2) follow a training course or professional instruction
3) submit to examination, supervision and treatment measures and medical care, even under a hospitalization plan
4) justify that the concerned party contributes to family expenses or regularly pays for foodstuffs that he has been ordered to pay, in accordance with legal decisions and court-approved settlement agreements, making compulsory the payment of allowances, subsidies or contributions to the marriage expenses
5) pay the amounts due to the victim of the offence, their legal representatives or beneficiaries or justify that, depending on his contributory capacity, he pays them a minimum of 2000 French francs per month.
6) pay the amounts due to the Public Treasury following the sentence or justify that he pays in accordance with his contributory capacity
7) do not drive certain vehicles as per the licence classes specified in the Highway Code and hand in any relevant licence to the Law Court office
8) do not visit casinos, gaming houses and horse-racing tracks and do not engage in bets, particularly in joint gambling businesses
9) do not visit liquor dens and refrain from excessive alcoholic consumption
10) do not visit certain offenders, notably perpetrators and accomplices in the crime
11) do not enter into a relationship with certain persons, notably the victim of the offence, nor meet with them nor house them in one's home
12) do not own or carry a weapon
Mr. Philippe Moreau, is advised that in the event of a further sentence, disorderly conduct, or failure to observe the aforementioned obligations in the aforesaid time limit, his conditional release may be revoked and he will be imprisoned for a period of time, less or equal, depending on the case, to the duration of the sentence that remained outstanding at the time of his conditional discharge.
Mr Moreau’s translated Certificate of Employment dated 14 November 2017
We undersigned, Dresser Produits lndustriels SAS, located in Condé -sur-Noireau hereby declare the following:
Mr Philippe MOREAU is currently employed as Commercial Engineer.
His seniority date within the GE Group is August 25, 1997.
Since 01st April 2017, Mr Philippe MOREAU's annual salary amounts to 71468 Euros. This salary is paid over 12 months.
We also certify that Monsieur Philippe MOREAU is not under a probation or a notice period. This certificate has been produced on Monsieur Philippe MOREAU's request
Mr Moreau’s Evidence
Mr Moreau provided the following responses to the delegate’s Notice of Intention to consider refusal of a Visa:
Offence :
Convicted of murder the 22nd June 1999
{date of the offence : 30th April 1996)
(a single conviction on my police record)
Account of the event :
My wife and I were in divorce proceedings, near the end of the procedure. She had already moved out of the family home at her request; our daughter had wished to stay with me.
30 April 1996: It was school holidays, our daughter was alone at home, I went to work in the office. My daughter called me because an unknown man was waiting at the home door, sounding and insisting on entering the house. She was in a bit of a panic; I had no idea who was this man, and as my means of transportation was the motorcycle I returned home quickly. Meanwhile her mother arrived and entered the house with the man. That guy was a bailiff.
(On the advice of her lawyer my spouse had abandoned the amicable procedure for an adversarial one. This procedure should permit her to get more advantages, the intervention of the bailiff was part of this strategy).
I arrived at home. High stress, my daughter was denied the entrance into her room to the bailiff. It was a very sad and difficult situation for everybody.
I wanted to throw my spouse and the bailiff out to end this situation.
I didn't want to fight with them, no physical violence. So I took a knife to scare them and they leave home. It was the worst solution......., in the confusion I wounded my wife. We called the help, but she died as a result of this injury. I waited for the police who arrested me.
-Penalties:
Sentenced to 10 years of detention
Loss of family and civil rights for 5 years
Compensations to be paid: 730 613 francs (111 382 Euros) Police Certificate attached to my application through lmmiAccount.
Other relevant information:
Placed on conditional release the 05 February 2001 (real time detention less than 5 years: 57 months). Conditions of release:
To be in gainful employment
To pay compensation each month, to increase it according to wages increase
To justify each month these 2 conditions by presenting the originals documents
No travel out of France of more than 2 weeks without Judge's agreement
These conditions were applicable for 3 years, up to 21 January 2004. From that date no more condition, no more limitations.
As detention time was equivalent to time of loss of rights, I have recovered all rights as soon as conditional release took place.
Compensations: I have finished paying whole compensation (111 382 Euros) since 28 March 2014, through official French Guarantee Fund for Victims (FGTI).
Professional activity: Despite my conviction I had not been dismissed by my employer. As my contract of employment was remained valid, I went back as soon as released to my previous job.
I always work for the same employer as nuclear key account. I am granted permanent access permission to all nuclear power plants in France (granted after Police investigation and EDF approval).
Remark: my certificate of employment indicates seniority date since August 1997; it means near 20 years seniority. This is to summarize the 2 periods, before conviction (1993-1996) and after it (2001-2017), so total near 20 years.
I have been released near 17 years ago, the 05 of February 2001.
The only obligation was to justify payment of indemnities to civil parties whole indemnities paid since March 2014)
This obligation was to be applied for 3 years, after that no more obligation and end of conditional release
Dangerousness and repeat offence have been considered null by Judge of Sentence
Enforcement, medical and psychological service and prison administration: not any medical monitoring or treatment, not any courses or reintegration programs.
I Went back to my former employer, at the same position as sales engineer for energy sector (for which I always work, attached certificate of employment dated 14 November 2017).
Since I have evolved, and I am currently nuclear key account for nuclear French activity.
In this position I have to attend meetings quite often in a nuclear power plant, and visit turbine hall, so I have been granted for a permanent access authorization by Civil Security and Defence Office (see attached letter and professional card).
I have invested in the life of my company and I was elected by the staff as Union Representative and Delegate to represent the interest of the staff in all negotiations with the management. The elections are held every two years and I am currently exercising my fourth mandate, up to next election in January 2019.).
For professional purpose, I have travelled to several countries: Algeria, Hungary, Italy, China.
To complete I also have travelled to UK, Belgium, Switzerland, Spain, Morocco, Tunisia, Mauritius.
I fill my duties as a citizen by taking part in the French elections, attached my voting card for the las Presidential and Legislative elections.
I am married since 2008, and the two children of my wife were at our expense and lived with us until their departure, in 2016 for the last.
I wanted to highlight these few elements to show that the trust given by the Judge, the prison administration and my employer was well founded.
I have fulfilled all my obligations for 17 years, working in a sensitive environment for national security, invests in the company, without having encountered or generated any problems or deviations.
Mr Moreau advised the Tribunal:
(a)That he wanted to visit his daughter in Australia, to see firsthand the life she has made for herself. He only intends to visit for a very short period of time, two to three weeks, and has no intention of seeking to stay in Australia. He has a very good life in France.
(b)He would be disappointed to not have an opportunity to see where and how his daughter lives, that he would suffer great sadness at the inability to see where and how she has chosen to live her life.
(c)He was very proud of his daughter and all the decisions she has made in her life. Leaving France to go alone to Australia was very brave and showed great character. His relationship with his daughter was very strong, there was no conflict in their relationship despite all that had happened, and her mother being gone; his relationship with his son is also good, he sees him regularly.
(d)That he is happily married now, and he helped raise his wife’s two children, with whom he also shares a very good relationship.
(e)That he took full responsibility for his former wife’s death. He never contested this fact that his wife’s death was the result of a dramatic situation, that should never have happened. That he had no intention of killing his wife, did not deny he had caused her death, after the accident he tried to revive his wife and then simply waited for the police to arrive.
(f)There had been a two-year investigation into his wife’s death, including legal process, detailed evidence, and a re-enactment of events — throughout this process he fully accepted his role in the situation, and never contested it.
(g)That he had loved his wife, they had a good relationship for 19 years, had two children and bought a house together. His wife had sought the divorce and she had decided to seek a divorce with fault/no proof, the assessment of the household contents was part of this process.
(h)He had been at work on this day and his daughter was alone in the house as it was school holidays. She had rung in a panic as a strange man was insistently trying to enter their house. He did not work far away so he jumped on his motorcycle and headed home. He had no idea the man was a bailiff and that his wife was now at the house.
(i)When he arrived, his daughter was very upset and he just wanted his wife and the man to leave, so he got the knife to scare them both off. Tragically, as he was advancing with the knife his wife moved toward him and he stabbed her at the base of the heart. If he had got her anywhere else, she would not have been injured. He described it as a terrible set of circumstances.
(j)He was sentenced to 10 years’ imprisonment but was released after five. His children had been allowed to visit him in prison. He worked in the prison supervising other inmates and on release returned to his old job which had been kept open for him. He has security clearance to visit nuclear facilities in France and around the world. He has travelled to many counties outside France, has been the elected union representative at his workplace for many years. He had made payments of restitution above what was required, had abided by all his release conditions, and was under no obligations from the court in respect of psychological treatment. He has been a model citizen before and since the tragic event.
Dr Moreau’s Evidence
Dr Moreau provided the following statement to the Tribunal:
We ask that the decision be reconsidered on the following evidence:
I, Dr Julie Moreau (PhD) was granted Australian citizenship in 2017; I have built my life in this country for 8 years where I met my life partner. I ask that the appeal be considered not only as a pragmatic analysis of the situation but on compassionate grounds too to allow me the opportunity to share my daily life with my father, with whom I have built a strong relationship.
Conclusion:
For almost 20 years, there has been nothing to suggest any risk. On the contrary, all those who knew Philippe Moreau and who worked with him continue to trust him. These are not principles but concrete elements of everyday life.
The given evidence shows no threat for Australia and its people.
We request that this application for a tourist visa be reconsidered after a detailed analysis of the real and actual risk for the country and its community.
We know that the real threat is null and hope for an opportunity for Dr Julie Moreau to share her life in Australia with her father.
Dr Moreau advised the Tribunal:
(a)She wanted her father to visit her in Australia so she could share with him the wonders of Australia, so he could appreciate why she has decided to make Australia her home. That it was for a very short time, two to three weeks, and she wanted him to visit while he was still fit enough to enjoy all Australia had to offer.
(b)That she had decided to study abroad and had come to Griffith University to do her Masters, had fallen in love with Australia and then met her life partner, who is also a medical researcher. She is now an Australian citizen and works at Monash University in medical research.
(c)She has a fantastic relationship with her father, who she visits each year in France, sharing her time with him, her maternal grandparents who raised her after her mother’s death and her partner’s family in Spain.
(d)That her father was never physically or verbally violent towards her, her mother or his current wife.
(e)That she visited her father in prison regularly. She was taken there by her maternal grandfather, who will never forgive her father but her grandfather was insistent that Dr Moreau and her brother had a relationship with their father as they had already lost one parent and did not want them to lose another.
(f)That on the day of her mother’s death she had been alone in the house, as it was school holidays and she had decided to live with her father after her mother moved out with her younger brother. That a man was knocking on the door very loudly, very insistently, she did not answer the door pretending no one was at home and hoped he would leave but he did not. She rang her father, as she was very scared, who was able to come home in a hurry; but while he was on his way, her mother had arrived and let the man in. She was very scared and also very angry with her mother. When her father arrived, it was very tense and then the terrible accident happened, and her mother was killed.
(g)That her father was always there for her, gave her good advice, they speak regularly and text regularly. His current wife is a lovely lady and her father helped raised her children, Dr Moreau has no fear of her father and knows he is not a risk to her or any one in Australia.
CHARACTER TEST
Mr Moreau has conceded that he does not pass the character test for the purpose of s 501(1) of the Act, as defined in s 501(6), because he has a substantial criminal record, being a term of imprisonment of 12 months or more (s 501(7)) for a serious crime. The Tribunal accepts that he does not pass the character test.
THE DISCRETION
As Mr Moreau does not pass the character test, the Tribunal must consider
whether it should exercise the discretion to refuse to grant the visa under
s 501(1) of the Act.
The Minister issued Direction 79 under s 499 of the Act which sets out the considerations to be applied by the decision-maker when exercising powers under s 501 of the Act. The General Guidance of Direction 79 (paragraph 6.2) states 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. The Tribunal must have regard to the relevant primary and other considerations within Part B of the Direction.
Decision-makers must take into account the primary and other considerations relevant to the individual case. Generally, primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations (paragraph 8 of the Direction).
PRIMARY CONSIDERATIONS
Protection of the Australian Community
Paragraph 11.1 of the Direction provides that:
(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 non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
Paragraph 11.1.1(1) sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date.
Decision-makers must have regard to factors including:a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c) The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
…
e) The principle that any conduct that forms the basis for a finding that a non-citizen does not pass the character test is or is not of good character under section 501(6)(c), is considered to be serious;
f) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
g) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
h) The cumulative effect of repeated offending;
i) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
j) Where the offence or conduct was committed in another country, whether the offence or conduct is classified as an offence in Australia).
The delegate of the Minister in his reasons for refusal of Mr Moreau’s Visitor Visa found:
I gave primary consideration to the protection of the Australian community, and the expectations of the Australian community. I took into account the nature and seriousness of Mr MOREAU's conduct. I also considered the risk to the Australian community should he commit further offences or engage in other serious conduct. On the basis of the available information, I found that the other primary consideration identified in the Direction (the best interests of minor children in Australia) was not relevant in this case.
Sexual and violent crimes against women and children are specifically identified as very serious regardless of the sentence imposed in the Direction, as are crimes against vulnerable persons (such as the elderly or disabled). Mr MOREAU has been convicted of an offence which must be considered very serious as it is a violent offence perpetrated against a woman.
Furthermore, according to the Direction the sentence imposed for a crime further reflects the seriousness of the offender’s conduct against the community. Custodial sentences are the last resort in the sentencing hierarchy. Mr MOREAU received a sentence of 10 years imprisonment for murder which indicates the court viewed his offence to be very serious.
Dr Moreau and Mr Moreau did not dispute that Mr Moreau had committed a serious crime.
Dr Moreau and her father argued that he was in no way seeking to diminish the seriousness of his crime or his responsibility for his wife’s death. They argued Mr Moreau had at all times accepted his actions acknowledging the set of tragic circumstances had resulted in the death of Mr Moreau’s wife and Dr Moreau’s mother. That both Dr and Mr Moreau had sought to honestly describe a tragic series of events which had taken place over 24 years ago, witnessed by Dr Moreau when she was 13. Mr Moreau argued he had not sought to blame in any way his victim, his late wife.
The Respondent contended that the Tribunal should view murder of any kind as extremely serious. Further, they argued the circumstances of the murder committed by Mr Moreau should be of particular concern to the Tribunal as it was violent, committed against a woman, involved the use of a knife, was committed in the presence of a child (the review Applicant) and involved Mr Moreau seeking to hinder the enforcement of the law by a bailiff. The Respondent argued the imposition of a lengthy sentence of imprisonment was reflective of the seriousness in which the sentencing Court viewed the crime.
The Respondent argued that the Tribunal should reject Mr Moreau’s statement that he wounded his wife with the knife 'in the confusion’ and that the murder was an 'accidental event'. And instead conclude that Mr Moreau stabbed his wife intentionally. The Respondent contented that at the time of the offence, the crime of murder in France required that there be the 'wilful causing of the death of another person'. This should be contrasted with the crime of manslaughter, which is applicable to a person who causes the death of another through 'clumsiness, rashness, inattention, negligence or breach of an obligation of safety or prudence imposed by statute or regulations'.
The Tribunal found that Mr Moreau crime was obviously serious, it was of a violent nature and committed against a woman. The Tribunal considered that the charge of murder found against Mr Moreau and the sentence imposed by the court of 10 years’ imprisonment indicates his crime was of a very serious nature.
The Tribunal finds that the effluxion (significant passage) of time and evidence of good behaviour does not mitigate against the serious and violent nature of Mr Moreau’s offending. As the direction clearly states crimes of a violent nature against women or children are viewed very seriously, this factor therefore weighs strongly against Mr Moreau.
Risk to the Australian community
Paragraph 11.1.2 of the Direction provides that:
(1) In considering whether the non-citizen 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) In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(3) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen 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 non-citizen reoffending; 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.
(4) Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.
The delegate of the Minister in his reasons for refusal of Mr Moreau’s Visitor Visa found:
Mr MOREAU is intending to visit Australia for the purpose of visiting his Australian citizen daughter, Dr Julie Moreau …. I have considered the specific purpose and limited duration of Mr MOREAU's visit may reduce the likelihood of reoffending whilst in Australia.
I have considered whether Mr MOREAU poses a risk to the Australian community through reoffending by having regard to any mitigating or causal factors in his offending and have given consideration to the steps Mr MOREAU has undertaken to reform and address his behaviour.
I have also taken into account Mr MOREAU's comments that he was released from prison as he was not considered to be a dangerous or a repeat offender, that he fulfilled the conditions of his release, that he returned to his former workplace where he continues to be employed, and that in 2008 he remarried.
Mr MOREAU's conduct involved very serious physical violence resulting in his former spouse's death during their divorce proceedings and his offence occurred in the presence of a bailiff. While I accept that Mr MOREAU may have found himself in stressful circumstances during the proceedings of his divorce, his conduct demonstrates an inability to control his actions in stressful circumstances and a capacity to commit a very serious act of violence against a woman.
Having regard to all of the information before me, I find there is a risk, albeit low, that Mr MOREAU will reoffend. If Mr MOREAU committed a further similar violent offence, I find that such conduct could cause a range on harm to the victim from physical or psychological harm to death. It is also reasonable to conclude that psychological harm could be suffered by other members of the Australian community, particularly to family members.
Dr Moreau contented that her father presented absolutely no risk to the Australian community, herself or her partner. That her father was only seeking a short stay Visitor Visa to see Australia, a place she now calls home and that the Tribunal in accordance with the Direction should find on compassionate grounds her father should be granted the visa.
Dr Moreau contended, that while she and her father respect and understand the primary consideration given by the authorities to protect Australian community, her father’s conduct, behaviour and character for almost 20 years shows that he could not be considered to be a dangerous or a repeat offender. That his conviction for murder resulted from a familial case, unique and accidental that happened in 1996, 24 years ago, and that Mr Moreau poses no risk to the Australian community, his entourage or to himself.
In Dr Moreau’s statement to the Tribunal she argued:
As stated in the letter of statement for refusal of a tourist Visa, paragraph 14:
“14. Mr MOREAU is intending to visit Australia for the purpose of visiting his Australian citizen daughter, Dr Julie Moreau…… I have considered the specific purpose and limited duration of Mr MOREAU's visit may reduce the likelihood of reoffending whilst in Australia.”
I, Julie, share this analysis of the Department of Home Affairs, I do not feel threatened in any way, and neither is my life partner. I stay at my father’s every year when I go back to France and we have very good time. I appreciate these moments when I find my family and friends, and I would like him to share a little of my life here in Australia.
- Conditions of release:
Philippe Moreau was released in February 2001. Upon release, he was not considered as dangerous or a repeat offender. According to the last document provided “Notification of Obligations of Conditional Release”, he only had to pay the amount due to the victim, and to have a permanent employment. There is no medical imposition, no treatment, no follow-up by a specialist.
He was released without medical or physical coercion (police follow-up or physical presentation) because the medical staff and the penitentiary Administration considered him to present zero risk to society. Zero risk is also the reason why he was released mid-sentence, i.e. under the shortest time allowed by the French law.
Activity during detention: Philippe Moreau carried out an activity as the head of a conditioning workshop, in charge of a team of 10 prisoners, an activity during which he had access to tools such as a cutter. This position is obviously reserved for individuals who pose no risk for the guards. It is an additional element which exclude any risk.
Philippe Moreau fulfilled the conditions of the release; compensation has been fully realized included elsewhere all lawyer, bailiff and administrative fees. No more debt to date.
- Employment:
Philippe Moreau returned to his former workplace at the same position as sales engineer, with the same salary level and including his seniority in the company. His employer would not have taken the slightest risk, for both employees and business, for an employee whom he could have legally dismissed, and this shows again the confidence which was placed in him.
He still continues to be employed by the same company as nuclear key account for French units and other nuclear activities like waste treatment. Philippe Moreau has a permanent authorisation to enter EDF French nuclear power plants, this authorisation was granted after thorough governmental investigation. For obvious reasons administration has zero risk tolerance for such a sensitive area access and the Police investigation concluded that access can be granted.
Philippe Moreau is still invested in the life of her company as Union Representative and Delegate. He was elected for the fifth time (10 years) in February 2019, and he represents the employees of her site in front of the company management. This function requires commitment and mastery in heated debates.
- Private life:
Wedding and children:
Philippe Moreau remarried happily to [his current wife] in 2008, after 2 years of living together. He lived with [his current wife’s] children he helped raise until they left for working life.
The whole family of [his current wife], including father of the children, was obviously informed of the past of Philippe Moreau and of his condemnation, that posed no problem and never raised the question of the risk that could run the children. His personality and behaviour have never left room to doubt about the safety of children, neither of [his current wife].
Rights:
To note that the applicant’s civil, civic and family rights were maintained from the date of potential release, this means that even at the time of judgement the notion of risk for family and community was considered null.
- Other elements:
Philippe Moreau has travelled to more than 10 countries for both personal or professional purpose; he also fulfils his voting duties as a French citizen; yearly income over the French average showing complete financial autonomy
The Respondent contended that even if the Tribunal concluded that Mr Moreau constitutes a low risk of reoffending, that risk is unacceptable given the nature of his offence and any re-offending would likely involve violence resulting in physical harm, even death, to members of the Australian community. The Respondent argued that indeed, the offence of murder is exactly the kind of conduct envisaged by the statement in Direction 79 that ‘[s]ome 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 is unacceptable’.
The Respondent acknowledged that it was to Mr Moreau’s credit he was granted a conditional release five years into his 10 year sentence of imprisonment, that he has complied with the conditions of his release, has not committed any further offences and has remained gainfully employed.
The Respondent also acknowledged there was a limited time opportunity in which Mr Moreau could reoffend given he only intended to visit Australia for a period of one to three months. The risk of him reoffending may rightly be described as ‘low’.
However, the Respondent argued the Tribunal should remain concerned about this risk in circumstances where:
(a)there is limited information available about the circumstances of the murder;
(b)there is no psychiatric or psychological evidence before the Tribunal addressing why Mr Moreau offended or the risk of him reoffending and the matters likely to bear upon whether he reoffends; and
(c)Mr Moreau has underplayed the ‘wilful’ or intentional aspect of the murder, demonstrating that he is yet to fully understand or accept responsibility for this crime.
Fundamentally, the Respondent argued Mr Moreau has committed an extremely serious criminal offence and any reoffending of a similar nature could result in physical harm and even another death. Although the risk of the visa applicant reoffending may be low, it should nonetheless be of concern to the Tribunal and is appropriately described as unacceptable. The Respondent submitted that the protection of the Australian community should weigh heavily in favour of refusing to grant the visa.
Whilst Mr Moreau’s offending was obviously serious, and the Tribunal has found as such, it is of the view that Mr Moreau risk of reoffending is extremely low. Whilst the Tribunal had limited evidence before it of Mr Moreau’s criminal proceeding, the court document of Mr Moreau’s early release, some five years before the expire of his sentence, indicates the French authorities considered that Mr Moreau presented no risk of re-offending. The released record states:
mentioned that as a hard-working, meticulous and thrifty person, not dangerous to the extent that he does not feel stripped of what he has invested in terms of affection
Given that Mr. MOREAU is making serious efforts to integrate back into society;
That, in fact, each month of his own accord he gives compensation to the civil parties of up to FF150, in addition to the compulsory deductions taken out of his salary;
That, furthermore, Mr. MOREAU's behaviour in detention has been exemplary; he works in the workshop and goes regularly to the department's pedagogical unit which he has been assigned to;
Given that Mr. MOREAU benefits from a job offer dated 15th June 2000;
That this job offer should facilitate his reintegration into society;
That in effect this job offer is from his former employer, in whose company he had a position of technical sales engineer for over three years before he was imprisoned;
That this employer has remained firm with his job offer over the last few months;
That Mr. MOREAU has been followed by a medical and psychological service (SMPR) over the past 4 years, and according to Mr. MOREAU, this was discontinued because of his positive improvement;
While in no way downplaying the horrific nature of the offence Mr Moreau has committed, nor finding it accidental, the Tribunal places weight on the fact that Mr Moreau committed a single offence, which was an isolated event, not part of a continuing pattern of offending, occurred in a stressed situation and was not premeditated.
Additionally, a significant amount of time, some 20 years, has lapsed since Mr Moreau has offended, in that time he has committed no other offences, returned to his former employer who he is still employed by today, remarried and is in a stable relationship, has been recognised by his peers as a trustworthy individual by voting him as their union representative, travelled abroad to many countries, has security clearance to visit nuclear facilities and maintained a strong relationship with his children. In the Tribunal’s estimation, Mr Moreau does not have a propensity for violence.
The Tribunal acknowledges that by virtue of having committed a serious crime Mr Moreau cannot be said to pose no risk to the Australian community and objectively speaking if he committed such a crime again it would be obviously serous. The Tribunal recognises that there is no expert evidence to forensically assess Mr Moreau’s risk of reoffending; however, based on the evidence before it and the testimony of Dr Moreau and Mr Moreau, the Tribunal considers that Mr Moreau is not likely to reoffend and does not represent an unacceptable risk of future harm to the Australian community or other individuals.
The Australian community has a lower tolerance of any risk of future harm due to the nature of some types of offences, murder would be in this category. However, the Tribunal does not find Mr Moreau presents a risk to the Australian community.
The Tribunal, in considering the risk to the Australian community, has had regard to paragraph 11.1.2(4) of the Direction which states:
Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.
Accordingly, the Tribunal finds that the short duration of Mr Moreau’s intended stay, his extremely low risk of re-offending, his evidence of rehabilitation over a long period of time and the desire to see his daughter’s chosen home weigh in favour of granting the Visitor Visa.
The Tribunal considered that Mr Moreau is not seeking to migrate to Australia, he is seeking a short stay Visitor Visa to see where his daughter now calls home and concurred with the delegate who considered the specific purpose and limited duration of Mr MOREAU's visit may reduce the likelihood of reoffending whilst in Australia. Given Mr Moreau is not seeking to make Australia his home, return after being deported for crimes committed in Australia, nor even to spend an extended period of time here, at best 4 weeks, this mitigates against concerns he presents a risk to the Australian community.
The Tribunal consider that Mr Moreau presents no risk of repeating a crime in Australia during his short stay, or indeed again and as such finds this consideration weighs slightly in favour of not refusing his visa application.
Best interest of minor children in Australia affected by the decision
This consideration is not relevant as Mr Moreau has no minor children in Australia who will be affected by a decision to refuse the visa.
Expectations of the Australian community
Paragraph 11.3 of the Direction states:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because of the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.
The delegate of the Minister in his reasons for refusal of Mr Moreau's Visitor Visa found:
Australia has a sovereign right to determine whether a non-citizens who are of character concern are allowed to enter and/or remain in Australia. Accordingly, the Australian community expects that the Australian Government can and should refuse entry to non-citizens if they commit serious crimes. Further, where a non-citizen has committed a serious crime that involves violence against a woman, they should ordinarily expect to forfeit the privilege of coming to Australia.
I find that the character concern in this case, involving the murder of a spouse in the family home, is such that the Australian community would expect the visa application to be refused.
Dr Moreau contended she did not believe that the Australian community would seek to deny her father the opportunity to visit her briefly and asked that compassion be shown so her father could travel to Australia for a two-to-three-week visit. Dr Moreau also contended that she and her father fully understood her father had committed a serious crime but that this should not be the only factor considered in assessing his character for a determination of his right to be granted a visa.
Dr Moreau argued that her father posed no risk to the community and there was no prospect he would commit any offence whilst in Australia. Dr Moreau based this on the fact her father had been given early release from prison in recognition of his exemplary behaviour in detention, an assessment he posed no risk of reoffending, had shown compassion and had a job to return to on release. Additionally, she argued her father’s behaviour since his release from prison, that of: still working for the same employer, being elected on numerous occasion by his colleagues as the union representative, his security clearance to enter nuclear facilities, be granted visas to visit numerous countries including China, his happy marriage and acceptance back into his community, all demonstrated he was not someone who presented character concerns. Dr Moreau argued her father should not be denied the right to visit Australia for a short period of time.
The Respondent drew the Tribunals attention to the matter of FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR) where the Full Court considered how the ‘expectations of the Australian community’ should be assessed in the context of considering refusal under Direction 79’s predecessor (Direction 65). The Respondent contented the relevant statements of principle derived from the plurality judgments of Charlesworth and Stewart JJ were as follows:
(a)It is not for the Tribunal to determine the ‘expectations of the Australian community’ by reference to the visa applicant’s circumstances or evidence about those circumstances; rather, those expectations are the expectations set out in the Direction.
(b)That expectation is that ‘if you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive’.
(c)In circumstances where an applicant has committed a serious offence or serious offences, the expectation of the Australian community is one of refusal. The Tribunal’s task is to determine the appropriate weight to be ascribed to this consideration.
The Respondent submitted that this consideration should weigh heavily in favour of refusing to grant the visa to Mr Moreau as he has committed an extremely serious offence involving violence against a woman, where there remains an unacceptable risk of him reoffending and where the Australian community has a low tolerance of criminal conduct by visa applicants.
The Tribunal notes that prior to the determination of FYBR, there had certainly been a clear divergence of judicial view in respect of the Australian community’s expectations in respect of cancellation or granting of visas. As indicated in the matter of Murphy v Minister for Immigration and Border Protection [2018] AATA 750 and the case of DKXY v Minister for Home Affairs [2019] FCA 495, this factor was not seen as a foregone conclusion in any determination, but one to be assessed on its individual merits.
In Murphy v Minister for Immigration and Border Protection at [58], Senior Member P W Taylor SC wrote:
When cl 13.3 is read as a whole, and applied in a context where all relevant considerations required to be taken into account (see cl 8(1)), it does point to the likelihood, but it does not dictate an inflexible conclusion, that community expectation will always call for non-revocation. Nor is to be taken as elevating community expectation to the status of a determinative consideration. It remains as a primary consideration, to which appropriate weight must be given. But what constitutes appropriate weight, and whether that weight is a determinative factor in the exercise of the revocation discretion, will depend on the totality of the relevant circumstances.
In DKXY v Minister for Home Affairs at [30]–[33], Griffiths J stated:
In my respectful view, her Honour's reasoning in [76] and [77] of YNQY would be plainly incorrect if this reasoning is read as stating that the primary consideration of expectations of the Australian community will always weigh against revocation. The Minister contended that the reasoning simply reflected the facts in YNQY and did not purport to be a construction of Direction 65 as suggesting that the expectations of the Australian community can never weigh in favour of an applicant. The difficulty with the Minister's submission is that the language in YNQY at [76] and [77] is not in its terms confined to the circumstances of the particular applicant there and, on one view, appears to have been intended to have a more general application. The ambiguity of the language is reflected in the division of opinion in the large number of decisions of the AAT in which the language has been viewed inconsistently and as supporting either a broad or a narrow approach to cl 13.1.
As the applicant here pointed out, there are numerous statements in Direction No 65 which require the primary consideration of expectations of the Australian community to be assessed in the light of all the relevant circumstances which appertain to it and it has to be weighed against all other relevant considerations (while noting that the Direction requires that primary considerations be given more weight than other considerations). In an appropriate case, and depending upon all relevant circumstances, the expectations of the Australian community may not weigh against revocation of the mandatory visa cancellation. Undoubtedly, decision-makers who are bound to give effect to the Direction are required to have due regard to the Government's view regarding community values, standards and expectations, as set out in, for example, cll 6.2 and 6.3 of the Direction, but nothing in the Direction indicates that community expectations will always favour non-revocation. Indeed, the totality of the relevant circumstances which bear upon the assessment and weighing of all three primary considerations and other considerations need to be considered, as is made clear in many clauses of the Direction, including those which are referred to in [23] above.
I also respectfully disagree with the primary judge's reference at [77] of YNQY that Robertson J's reasons for judgment in Uelese v Minister for Immigration & Border Protection [2016] FCA 348; 248 FCR 296 (Uelese) at [64]-[66] supported her Honour's view that it was "inevitable" that the primary consideration of the expectations of the Australian community would weigh against revocation because that is what this primary consideration is intended to do...
... There is nothing in these passages from Uelese which indicates that a primary decision-maker who is bound to apply the Direction cannot also take into account any material which is before the decision-maker which is relevant to an assessment of this primary consideration. The Government's views have to be taken into account and given "due regard", but so must all other circumstances which are relevant in the particular case. As Robertson J pointed out in the final sentence at [64] of Uelese, cl 9.3 of the Direction ends by stating that decision-makers should have "due regard" to the Government's views on Australian community expectations. What amounts to "due regard" will necessarily require attention to be given to all relevant circumstances in the particular case which bear upon a general assessment of Australian community expectations.
In FYBR, the Full Court of the Australian Federal Court dealt with the construction and application of cl 11.3(1) (Expectations of the Australian community). Although this case refers to the previous Direction 65, it is consistent with the wording of cl 11.3 of the current Direction. The majority in FYBR held that this primary consideration is a ‘deeming’ provision with normative principles, ascribing to the community an expectation aligning with that of the executive government. As Stewart J held at [104], ‘it is not the decision-maker who makes an assessment of community values on behalf of the community’. His Honour summarised the community’s expectations at [101] and [103]:
Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.
…
…In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely...
The reasoning in FYBR establishes that the ‘deemed community expectation’ will, in most cases, call for cancellation (or, as is the case here, refusal), but that ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine.’ The Direction helps inform the weight a decision-maker attributes to this primary consideration. For example, cl 6.3(3) of the Direction states that non-citizens who commit serious crimes, including ‘of a violent…nature, and particularly against women or children…should generally expect to…forfeit the privilege of staying in[, or coming to,] Australia.’ Use of terms like ‘should generally’ convey discretion, and where that discretion is enlivened, judgments turn on ‘the specific circumstances of the case’ (cl 6.1(2)). The reasoning in FYBR at [76] also ‘contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors….’
The Tribunal notes the High Court has recently handed down its decision in respect of an application for special leave to appeal against FYBR. In refusing the application, the High Court held, at [301]–[303], that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’
The Tribunal finds that in accordance with the decision in FYBR it would be expected that Mr Moreau be denied a visa to Australia as community expectation would deem he does not deserve the privilege to visit because he has committed murder. However, the decision of FYBR and the Direction both envisage that a decision-maker has discretion and must make a determination on the facts as presented — otherwise the decision to refuse a visa on the basis of having committed murder would not be reviewable.
The Tribunal finds that community expectation ‘is not determinative,’ but as all other considerations ‘simply a matter to be weighed by the Tribunal among others.’ In weighing the totality of evidence before it the Tribunal finds the community would not expect Mr Moreau to never be able to visit his daughter in Australia.
The Tribunal considered the Australian community would tolerate the visa being granted as it is only for a short stay, the community would consider Mr Moreau poses no risk, has lead an exemplary life since his release from prison, is remorseful for his crime and wishes only to spend some time with his daughter in her adopted country.
The Tribunal considering what was appropriate in this particular set of circumstances mindful of Stewart J finding at para 102 of FYBR that:
It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be. That is why the decision-maker must assess what is "appropriate" in the particular circumstances. Nevertheless, an adverse character assessment is necessarily against a visa applicant, to some degree or other; no one will be awarded a visa because they are of bad character.
determined this that this consideration weighs in favour of refusal, but for the reasons outlined above does so only slightly.
OTHER CONSIDERATIONS
International non-refoulement obligations
This consideration is not relevant as Mr Moreau currently resides in France and is seeking a visitor visa to Australia. Therefore, there are no non-refoulement obligations that need to be observed in this situation.
Impact on family members
Paragraph 12.2 of the Direction provides that the Tribunal must have regard to the:
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
Dr Moreau and her father both expressed the deep sadness a denial of the Visitor Visa would bring to them. Dr Moreau desires for her father to see her home while he is still physically able to enjoy the great beauty of Australia. Mr Moreau said the sadness would be for him, that not being able to share this unique experience with his daughter, someone he greatly admires and who has never shunned him regardless of his actions of taking her mother from her. It would be hard to bear.
Dr Moreau agued they had sought review of the rejection of the Visitor Visa as they did not believe the whole of Mr Moreau’s character had been explored and that he has a good character and that this one tragic act should not define her father or diminish their relationship.
The Respondent recognised that Dr Moreau is an Australian citizen who through her work is making a considerable contribution to the Australian society. The Respondent noted Dr Moreau has stated she has ‘built a strong relationship’ with her father and that, through the granting of the visa, she ‘would like him to share a little of my life here in Australia’. The Respondent acknowledged that Dr Moreau would undoubtedly be disappointed if her father were not to be granted a visitor visa. However, in circumstances where Dr Moreau is not accustomed to her father’s presence in Australia, such a refusal will not have a significant emotional impact on her, nor will it give rise to any kind of practical hardship. Further, Mr Sypott argued Dr Moreau has been able to visit her father in France ‘every year’ while she has lived in Australia and that she also keeps in touch with her father via telephone and email.
The Respondent argued consideration of this factor should be given very limited weight in favour of not refusing to grant the visa.
The Tribunal finds that Dr Moreau, as an Australian citizen contributing greatly to our community, would be greatly impacted by her father being denied a visa to visit the country she has decided to call home. The Tribunal finds Mr Moreau would also be greatly saddened by a refusal to visit his daughter here for a short time. The Tribunal therefore finds that the denial of his visa would impact family members as it would deny them the opportunity to build on the restoration of their familial bond. The Tribunal finds this factor weighs strongly in favour of not refusing Mr Moreau’s short stay Visitor Visa.
Impact on victims
Paragraph 12.3 of the Direction provides that the Tribunal must have regard to the:
Impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and can be disclosed to the non-citizen being considered for visa refusal
The Respondent did not address this consideration.
While there was no evidence presented in respect of this consideration, the Tribunal considered Dr Moreau is a victim of her father’s crime as she has suffered the ultimate loss of her mother and that she is also the one who desires a visa be granted to her father so he can visit her in Australia. The Tribunal found that the strength of the bond between Dr Moreau and her father was an indication of his character.
The Tribunal finds that Mr Moreau accepted his actions of killing his wife, was remorseful for them and despite his crime has managed to maintain a good relationship with his children. The Tribunal finds that Mr Moreau is now seeking to not only strengthen his relationship with his daughter,(both a victim and family member) but also to continue to build trust and show remorse for his past actions by seeking to visit the country she has decided to call home. The Tribunal finds this factor weighs lightly in favour of not refusing Mr Moreau’s short stay Visitor Visa.
Impact on Australian business interests
In light of the absence of evidence to the contrary, the Tribunal finds there would be no impact upon business interests in Australia should Mr Moreau’s visa be refused.
CONCLUSION
Many in the community would believe Mr Moreau’s visa should not be granted as bestowing him with the privilege of visiting Australia would be egregious, as he has undoubtedly committed a very serious crime. Others apprised of his and his family’s life story would afford him the opportunity to visit Australia for a short duration to cement his relationship with his daughter. The Direction rightly indicates that Australia has a low tolerance for criminal conduct of a violent nature against vulnerable members of the community, however, it also allows a decision-maker to look at the totality of the circumstances and make a determinate appraisal of all the facts.
Overall, the Tribunal finds considering the appropriate decision in respect of this set of circumstances that — having regard to all of the primary and other relevant considerations required by the Direction —the correct and preferable decision is to not refuse Mr Moreau’s application a for Visitor Visa. Mr Moreau has undoubtedly committed a serious crime which involved violence against a woman. The Tribunal takes into account that Mr Moreau has committed a single offence, has no history of any other ongoing criminal behaviour, is a low risk of reoffending and the nature of his crime do not make him an unacceptable risk to the Australian community.
Granting Mr Moreau, a visitor visa allowing him to spend time with his Australian daughter in her chosen home would be to show compassion to this family who has been through so much, as envisaged by the Direction.
The Tribunal considers that Mr Moreau’s request for a short stay Visitor Visa should not be denied as he does not pose a risk of reoffending. The Australian community apprised of his story would not expect his visa to be denied and the benefits to his family weigh in favour of showing compassion to this request.
DECISION
The Tribunal:
(a)sets aside the decision under review, pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975; and
(b)under section 43(1) of the Administrative Appeals Tribunal Act 1975, the Tribunal substitutes a decision that the Applicant not be refused a Visitor Short Stay Visa (Class FA) under section 501(1) of the Migration Act 1958
I certify that the preceding 88 (eighty-eight) paragraphs are a true copy of the reasons for the decision herein of Ms A E Burke AO, Member.
..............[sgd].....................................
Associate
Dated: 11 January 2021
Dates of hearing: 5 October 2020 Applicant: Self-Represented Advocate for the Respondent: Mr Keith Sypott Solicitors for the Respondent: Australian Government Solicitor
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