QZGZ and Minister for Home Affairs (Migration)
[2018] AATA 3683
•3 October 2018
QZGZ and Minister for Home Affairs (Migration) [2018] AATA 3683 (3 October 2018)
Division: GENERAL DIVISION
File Number(s): 2018/3907
Re:QZGZ
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:3 October 2018
Place:Melbourne
The Tribunal sets aside the reviewable decision and remits the matter to the Respondent for reconsideration of QZGZ’s Bridging Visa application, with the direction that QZGZ passes the character test within the meaning of section 501(6) of the Migration Act 1958 (Cth).
.........[sgd]........................................................
Senior Member A. Nikolic AM CSC
MIGRATION – Bridging Visa refusal – failure to pass the character test – criminal charge pending – whether the risk that the Applicant would engage in criminal conduct is made out if Applicant is allowed to remain in Australia – Applicant passes the character test – decision set aside and remitted for reconsideration with a direction that Applicant passes the character test
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Crimes Act 1958 (Vic)Bail Act 1977 (Vic)
Cases
Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65
Aksu v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 667
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67
Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others (2000) 203 CLR 194
Gong v Minister for Immigration and Border Protection (2016) 309 FLR 151; [2016] FCCA 561
Hammond v Commonwealth of Australia [1982] 152 CLR 188LSSY v MIAC [2011] AATA 334
McMahon v Gould (1982) 7 ACLR 202
Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303
Secretary, Department of Social Security v Alvaro [1994] FCA 1124
Veliu v Minister for Immigration and Border Protection [2018] FCA 53Wong v Minister for Immigration and Multicultural Affairs [2002] FCAFC 44
X7 v Australian Crime Commission (2013) 248 CLR 92
Secondary Materials
Minister for Immigration and Border Protection, Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA; 22 December 2014
Bower, George Spencer, and Turner, Alexander Kingcome, The doctrine of res judicata (Butterworths, 2nd ed., 1969)
Pearce, Dennis, Administrative Appeals Tribunal (LexisNexis Butterworths, 4th ed., 2015)
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
3 October 2018
INTRODUCTION
Under section 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), the Tribunal can restrict the publication or other disclosure of the names of parties to a proceeding and allocate a pseudonym.[1] In light of the specific circumstances of this case, it is considered appropriate to restrict the identification of the Applicant and to refrain from disclosing other names and information that might identify him.
[1] See, eg, Australian Securities and Investments Commission v Administrative Appeals Tribunal and Anor (2009) 181 FCR 130 at [79]. Downes and Jagot JJ held that: ‘We are also satisfied that the scope of the AAT’s power…extends to the allocation of a pseudonym to one or more parties to the proceeding.’
In these reasons the Applicant, a 23 year-old citizen of [redacted], will be referred to as QZGZ. The matter before the Tribunal relates to a decision by a delegate of the Minister for Home Affairs (Minister) to refuse the Applicant’s application for a Bridging E (Class WE) visa (Bridging Visa). QZGZ has asked the Tribunal to review that refusal decision.
The hearing was held in Melbourne on 26 September 2018 with the assistance of an interpreter. Although QZGZ was legally represented during an earlier application before a differently constituted Tribunal, and during the pre-hearing stage of this matter, he was self-represented at the hearing. The Minister was represented by Ms Natalie Campbell of Counsel instructed by Mr Adam Cunynghame of Sparke Helmore.
For the reasons that follow, the Tribunal sets aside the reviewable decision and remits the matter to the Respondent for reconsideration of QZGZ’s Bridging Visa application, with the direction that QZGZ passes the character test within the meaning of section 501(6) of the Act.
BACKGROUND
QZGZ arrived in Australia approximately three years ago to study under a Class TU subclass 573 Higher Education Sector Visa (Student Visa). Approximately 12 months ago he was charged with the crime of knowingly possess child abuse material[2] (the charge) and released on bail. The matter is yet to be heard by a court, having been re-listed on a number of occasions. There is no currently scheduled hearing date. QZGZ advised during the hearing that the matter awaits the finalisation of technical evidence being sought by Victoria Police, which was not challenged by the Respondent.
[2] Crimes Act 1958 (Vic) s 51G
The circumstances surrounding the charge arise from what Victoria Police allege are serious crimes committed against QZGZ himself in April 2017. Police have charged a number of people in relation to those offences. A letter from Victoria Police dated 13 July 2017 states ‘[i]t is highly likely…this will proceed to a trial’ and QZGZ ‘will be a crucial witness…required to give his evidence during court proceedings’.[3] The letter requests that consideration be given to allowing QZGZ to remain in Australia, including so that he may ‘assist in the coming court proceedings.’[4] An email from Victoria Police dated 10 September 2018 advises that the trial at which QZGZ is required to give evidence has been adjourned until [redacted].[5]
[3] Exhibit T1.
[4] Ibid.
[5] Exhibit A4.
It is in the context of voluntarily surrendering his mobile telephone to assist the police investigation of the offences committed against him that QZGZ himself was charged. The alleged detection of child exploitation material and the subsequent charge against QZGZ resulted in a delegate of the Minister cancelling his Student Visa under section 116(1)(e)(i) of the Migration Act 1958 (Cth) (the Act). This provides:
Power to cancel
(1)…the Minister may cancel a visa if he or she is satisfied that:
(a)-(d) …
(e) the presence of its holder in Australia may be, or would be or might be, a risk to:
(i) the health, safety or good order of the Australian community or a segment of the Australian community; or
…
With his Student Visa cancelled, QZGZ was taken into immigration detention where he has since remained. His appeal against the decision to cancel his Student Visa before another division of this Tribunal was unsuccessful. He then applied for a Bridging Visa, but was issued with a Notice of intention to consider refusal of his application. After considering QZGZ’s responses, his Bridging Visa application was refused on 1 June 2018 under section 501(1) of the Act. The delegate determined that QZGZ failed the character test under section 501(6)(d)(i) of the Act, in that there is a risk he will engage in criminal conduct if allowed to remain in Australia. The delegate concluded that:
… [QZGZ] represents a risk of harm to the Australian community which is unacceptable. I could not be satisfied that the risk of [QZGZ] reoffending was negligible. I found that there are no sufficient countervailing considerations in this case to warrant the Australian community accepting any level of risk.
Having given full consideration to all of these matters, I decided to exercise my discretion to refuse to grant [QZGZ’s] application for a Bridging E (Class WE) visa, under subsection 501(1).
The decision to refuse QZGZ’s Bridging Visa application and his subsequent application to the Tribunal means that I am required to determine his application before a court hears and determines the pending criminal charge against him. That results from the operation of section 500(6L)(c) of the Act, which provides that if the Tribunal has not made a decision under section 42A, 42B, 42C or 43 of the AAT Act within a period of 84 days after the person was notified of the decision, the Tribunal is taken to have affirmed the decision under review. In QZGZ’s case the 84 day period expires on 4 October 2018.
During a Telephone Directions Hearing (TDH) on 23 July 2018, the Respondent confirmed that the decision to refuse QZGZ’s Bridging Visa application rested entirely on the existence of the single, pending charge against him. The Respondent contends that the charge is ‘a serious and substantial issue to be addressed’ which, taken in conjunction with ‘the possibility of reoffending’ led the original decision-maker to determine that QZGZ ‘posed a risk to a segment of the Australian community.’[6] During the TDH
I asked the Respondent for written submissions relating to a number of issues, including the effect of Annex A, section 1, subsection (4)(b) of Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the Direction), which provides that:
A person who does not already fail the character test, and is the subject of criminal charges in Australia, which have not yet been finalised before the relevant court, would not generally be considered under section 501 until the charges have been finally determined.
[6] Respondent’s Statement of Facts, Issues and Contentions (RSFIC), 17 September 2018, paragraph 18.
In written submissions dated 30 July 2018, the Respondent stated:
Direction 65…does not prevent the Tribunal from making findings in relation to whether the applicant passes the character test…the Respondent notes that the Direction provides that persons with unresolved criminal matters “would not generally be considered under section 501…” The Direction does not exclude a decision maker from refusing the applicant a visa under s 501 of the Act on the basis that he or she is only subject to pending charges. Further, noting that the delegate found that the applicant did not pass the character test with reference to s 501(6)(d)(i) of the Act, the respondent emphasises that s 501(6)(d)(i) provides that “…a person does not pass the character test if in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would engage in criminal conduct in Australia.” This provision does not require a person to be subject to a conviction to fail the character test. Rather, the decision maker must be satisfied that there is a risk that the person would engage in criminal conduct.
The Respondent made further written submissions in response to the issues raised by the Tribunal, which can be summarised as follows:
(a)‘The matter is restricted to the pending charge against the applicant. The National Police Certificate…provides that the pending charge…of Knowingly possess child abuse material is the only disclosable Court outcomes recorded against the applicant;’
(b)‘In these proceedings the Tribunal must form its own view of the applicant’s conduct in considering whether the applicant is of good character…the Tribunal is required to exercise its powers whether or not there was an error at first instance.[7] That is:
[7] Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others (2000) 203 CLR 194.
“In the hierarchy of reviews from original decision-maker to the AAT it was not necessary that there be at the outset an original decision that was in all respects validly made, and at each level of review thereafter another decision that was in all respects validly made. The person or tribunal to whom application for each of the reviews was made had jurisdiction to undertake that review so long as the preceding decision-maker had made what purported to be a decision in the exercise of powers conferred by the Act affecting the interest of the person seeking review. It mattered not whether the ground of complaint made about the preceding decision was merely that it is wrong on the merits, or that in law it was not an effective decision because it was made by someone without authority, or in excess of authority, or for improper purposes, or was vitiated through procedural irregularity such as a failure to accord natural justice.”[8]
[8] Secretary, Department of Social Security v Alvaro [1994] FCA 1124 at [78], cited in LSSY v MIAC [2011] AATA 334 at [22].
(c)‘… the delegate’s decision, when read as a whole, indicates that the offending conduct described in the charge against the applicant was serious and that the Australian community would expect that the applicant not hold a visa in light of that conduct;
(d)‘The respondent accepts that the applicant has a right against self-incrimination. If the applicant were to exercise his right against self-incrimination, the Tribunal would be required to make a decision on the material before it without hearing further evidence from the applicant…This issue was considered in LLSY v MIAC [2011] AATA 334 at [41]-[54] (LSSY). In LSSY, the asserted conduct which gave rise to the criminal charges was the only basis on which it was suggested that the visa applicant did not pass the character test (at [41]). The applicant in LSSY submitted that the proceedings in the Tribunal should be stayed because their continuance would constitute a contempt of concurrent criminal proceedings, and would result in substantial prejudice to the visa applicant (at [42]). The Tribunal noted in LLSY that “the criminal charges are not merely a future possibility; the Visa applicant was arrested and charged…” (at [45]). The Tribunal accepted that LLSY’s prospects of succeeding in his application to the Tribunal would be greatly prejudiced if he were to claim the privilege against self-incrimination (at [48]). The Tribunal in LLSY found that in relation to s 501 (1) of the Act, “if the visa applicant does not satisfy the decision-maker that he or she passes the character test, there is a discretion to refuse to grant the visa. In view of the information before the Tribunal, the visa applicant would need to give evidence to enable the Tribunal to assess the risks referred to in s 501 (6)(d) of the Act, and he would not be assisted by claiming the right to silence (at [48]). Critically, the Tribunal in LLSY assessed the extent of prejudice to the applicant if he were unable to claim the right to silence (at[49]). The Tribunal found (at [49]):
a. The evidence given in the proceedings would not necessarily be admissible in any subsequent criminal proceedings. It would be open to the visa applicant to apply for an order that relevant evidence tended at the hearing of the present proceedings should be maintained in confidence pursuant to s35 of the AAT Act.
b. To the extent that relevant information is produced pursuant to a compulsory process of this Tribunal, the resulting information would be subject to an implied undertaking by the respondent not to disclose the information to 3rd parties (citing Commonwealth v Temwood Holdings Pty Ltd [2001] WASC 282; (2001) 25 WAR 31 at [41]).
c. The representative for the respondent would not be involved in prosecuting the visa applicant for the pending criminal charges, because the office of the State Director of Public Prosecutions would act in that matter.
Further, the Tribunal in LLSY took into account at [50] that:
“…the outcome of the present proceedings is unlikely to receive any publicity, and the court hearing the criminal charges is unlikely to pay any regard to, or be influenced by, the findings of this Tribunal; and this is not a matter with the court or jurors who hear the criminal charges would be influenced by such matters. The appropriate standard of proof in the present proceedings, which entail whether the non—citizen satisfies the character test, is the civil, not the criminal, standard of proof, to be approached in accordance with the principles in Briginshaw v Briginshaw & Anor [1938} HCA 34… And that is a further reason why the court hearing the criminal charges would not be affected by the outcome of the present Tribunal proceedings.”
The Tribunal noted in LLSY at [51] that the potential prejudice to the visa applicant must be weighed against the obligation of this Tribunal to determine the application before it, as required by the AAT Act, and the public interest and the Tribunal determining the application in the light of all relevant facts in order to make a decision that gives effect to the policy and objectives of the Act and of Direction 41”.
The Tribunal in LLSY found at [53] when it was necessary to consider the asserted conduct by the applicant with reference to the character test. The Tribunal found that the potential prejudice to the applicant did not outweigh the Tribunal’s obligation to determine the proceedings before it.
(e)‘…the Tribunal hearing “compelling probative evidence” would not jeopardise the criminal proceedings. Further if the case were to be heard by the Tribunal, the Tribunal found against the applicant, and the Court acquitted the applicant, the implications would be inconsequential, noting the difference in the standards of proof to be applied in proceedings before the Tribunal and criminal proceedings.
EVIDENCE
National Police Records
An Australian National Police Record dated 19 December 2017 discloses a single pending charge against QZGZ for knowingly possess child abuse material. The following note is included under the Court Result column on that document:
At the date of issue, this charge has not been determined by a court. This cannot be regarded as a finding of guilt against the individual named above.
A Police Clearance Certificate dated 27 October 2017 from QZGZ’s country of citizenship, states that QZGZ ‘Has not come to the adverse notice of the [redacted] Police during the period from 15/03/1995 to 22/02/2016 according to available records.’
QZGZ’s Evidence
As the charge against QZGZ is yet to be determined by a court and he was self-represented at the hearing, I advised him at the outset that he had the right to silence and also to claim the common law privilege against self-incrimination, as provided for at section 62(4) of the AAT Act. I informed QZGZ that he was not bound to answer any question if the answer would expose him, or would have a tendency to expose him, to conviction for a crime, and that I would draw no negative inference if he exercised that right. QZGZ confirmed his understanding of his rights.
The following material provided by QZGZ was taken into evidence:
(a)Letter to the Tribunal dated 20 September 2018;[9]
(b)Letter to the Tribunal dated 20 July 2018;[10]
(c)Bail Form (Own Undertaking) dated 14 August 2017;[11]
(d)Email from Victoria Police dated 10 September 2018 regarding adjournment until 2019 of the proceeding in which QZGZ is a witness;[12]
(e)Report detailing metadata on QZGZ’s phone;[13]
[9] Exhibit A1.
[10] Exhibit A2.
[11] Exhibit A3.
[12] Exhibit A4.
[13] Exhibit A5.
In his oral submissions, QZGZ stated that it was unfair he should be treated as a criminal before he is actually convicted of a crime. He referred to being in immigration detention for the last year, which has caused him to forego planned study. He said the serious offences committed against him had shaken him, and his intent in voluntarily handing his telephone to police was to seek justice against the perpetrators. He claimed to be ignorant of the images and videos subsequently discovered on his telephone, which were yet to be shown to him by police. He said he would not have voluntarily handed his telephone to police if he had any concerns about the material stored on it. Moreover, he stated that a warrant subsequently issued to search his premises and other IT equipment, including his computer,[14] had not located any material of concern to police. This submission was not challenged by the Respondent.
[14] Exhibit R1, 85-86.
Under cross-examination, QZGZ was taken through the circumstances of his involvement with police. This included the offences alleged to have been committed against him, the handing over of his mobile telephone to police, and the alleged discovery of images and videos that police say constitutes child abuse material. QZGZ said he had told the truth to police when interviewed. He recalled telling police that he had been a member of Viber[15] groups, because that was the first thing to come into his mind when advised about the images and videos on his telephone. He said that the possible connection with Viber at that time was only a suspicion and he could not say with certainty how certain images and videos came to be on his telephone.
[15] Viber is a cross-platform instant messaging and voice over internet protocol (VOIP) application, enabling free calls and the transmission of texts, pictures and video to other Viber users. It works on both mobile telephones and computers and can be used to connect with people around the world.
QZGZ said that he used Viber to communicate with his family in [redacted]. But he was also a member of an approximately 300-person Viber group, after being added some time ago by another Viber member whose name he could not recall. He claims to have received up to 60-70 Viber notifications per day, alerting him to messages, images, video or other links. He recalled telling police that the auto save setting on his telephone meant that images and video files sent to him were automatically saved. He was now unable to confirm with certainty, however, if the images were saved on his telephone because of the auto save function.
QZGZ agreed that a small number of images received in the Viber group on one occasion, were inappropriate but he had deleted them immediately. When asked why he considered the images inappropriate, QZGZ replied ‘because it was sexual activity.’ When asked if his assessment about the appropriateness of the images had anything to do with the age of the persons engaged in the sexual activity, QZGZ said ‘I wouldn’t be able to comment on ages of people – it was just inappropriate.’ When asked if he was referring to child abuse material, he replied ‘I cannot say it was child-related – just inappropriate.’ When asked if he considered there was a real risk it was child abuse material, he replied: ‘No I just felt it was inappropriate and deleted it immediately.’ When asked about his views on child sex material, QZGZ said ‘it is inappropriate.’ When asked why he didn’t leave the Viber group, QZGZ said he ‘didn’t consider it was a big issue [and] didn’t feel it was important to leave’ because there were ‘so many other things coming from that group’ that were not inappropriate. QZGZ agreed he had not asked the people sending the inappropriate images to stop sending them. He claimed to have only ever received incoming messages from the Viber group and never responded. He did not change the auto save setting on his telephone, because he ‘did not know about that option.’
When QZGZ was asked if he had told police that he knew people in the Viber group sent sexual images, QZGZ said he was ‘ignorant of that question’ and felt he may have ‘answered wrongly.’ QZGZ said he had done his best to respond to police questions, but ‘was pretty nervous’ and an interpreter was not provided. He was consequently uncertain about some of his responses, submitting he didn’t think he ‘said everything right.’
Other Evidence
No other witnesses were called by QZGZ or the Respondent. No expert evidence was tendered by either party. The Respondent relied upon a Statement of Facts, Issues and Contentions dated 17 September 2018, Respondent’s Submissions dated 30 July 2018, Section 501 (G documents) numbering 149 pages,[16] and the oral submissions of counsel during the hearing. I have had regard to all of this material.
[16] Exhibit R1.
Delegate’s Statement of Reasons
Where a decision is made under section 501(1) of the Act to refuse a visa application, the Minister or their delegate must give to the person a written notice that sets out the reasons for the decision.[17] Under section 25D of the Acts Interpretation Act 1901 (Cth), the reasons must ‘set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.’ In notifying QZGZ of the visa refusal decision on 12 July 2018, the delegate attached a copy of the decision record and documents relevant to the making of the decision. The Statement of Reasons dated 1 June 2018 states in part:
[17] s 501G(1)(e).
3. The relevant ground of the character test in this case is s 501(6)(d)(i), there is a risk that the visa applicant will engage in criminal conduct in Australia. In considering the risk that [QZGZ] will engage in criminal conduct in Australia, I have had regard to [QZGZ’s] criminal history and then considered the risk of him offending in the future.
4. On [redacted] 2017 [QZGZ] was charged with knowingly possess child abuse material.
5. On 14 August 2017 a search warrant was issued under the Crimes Act Section 465 for the residence of [QZGZ]…The warrant specifically stated that the description of the search was in relation to any child pornography including:
…
6. [QZGZ]…is the specified person of interest named on the warrant and it is therefore not without some substance that [QZGZ] would be under suspicion of these charges.
7. – 8. …
9. I acknowledge that the charges have not been proven, but note that there is compelling probative evidence to suggest that [QZGZ] has engaged in conduct of character concern, specifically images of minors in sexual acts were found by police on [QZGZ’s] mobile phone.
10. [QZGZ’s] court hearing has been adjourned to [redacted].
11. Having regard to the nature of the charges laid, and the nature of the Bridging E visa, namely to allow the holder to reside in the community while awaiting finalisation of a current review by the Administrative Appeals Tribunal, I find that in this case it would not be appropriate to await the findings of the court in the matter. The charges are not due to be heard before [redacted].
12. – 14. …
15. I acknowledge [QZGZ’s] submission that he will plead ‘Not Guilty’ to the charge and that he should be entitled to his common law right of presumption of innocence when his criminal matter is dealt with by the criminal justice system.
16. – 19. …
20. I have also taken into account that [QZGZ] was released on bail and was in the community prior to the cancellation of his visa resulting in immigration detention and that [QZGZ] has no other recorded offending.
21. …
22. On balance I am of the view that there is a serious and substantial issue to be addressed and, taken together with the possibility of reoffending, infer that [QZGZ] poses a risk to a segment of the Australian community. Therefore I find that [QZGZ] has not satisfied me that he passes the character test and he does not pass the character test by virtue of s501(6)(d)(i) of the Act.
23. Having found that [QZGZ] does not pass the character test and having assessed the information set out in [QZGZ’s] Penal Certificate, and criminal history documents, personal statements and the representations by [QZGZ] and on his behalf, I considered whether to exercise my discretion to refuse to grant [QZGZ] a visa.
24. – 25. …
26. Sexual and violent crimes are specifically identified as serious in the Direction, as are crimes against vulnerable persons (such as minors). [QZGZ] has been charged with offences which must be considered serious as they are sexually based offences perpetrated against a minor.
27. I find that the character concerns or offences in this case, involving child sexual offending, are such that the Australian community would expect the visa application to be refused.
28. …
29. I concluded that [QZGZ] represents a risk of harm to the Australian community which is unacceptable. I could not be satisfied that the risk of [QZGZ] reoffending was negligible. I found that there are no sufficient countervailing considerations in this case to warrant the Australian community accepting any level of risk.
A number of annexures referred to in the assessment were attached to the correspondence sent to QZGZ, including:
(a)QZGZ’s Bridging Visa application form lodged on 10 October 2017;
(b)Movement information relating to QZGZ’s arrival in Australia;
(c)Police Charge Sheet regarding the pending charge;
(d)Notification of cancellation of QZGZ’s Student Visa;
(e)Record of Decision of whether to Cancel QZGZ’s Student Visa;
(f)Notice of intention to consider refusing QZGZ’s Bridging Visa application;
(g)Personal Circumstances Form signed on 18 November 2017;
(h)Letter of Acceptance from [educational institution – redacted];
(i)Overseas Student Confirmation of Enrolment;
(j)Advice by migration agent Form 956;
(k)Submission by QZGZ’s legal representative dated 27 September 2017;
(l)Copy of email from Registrar at [educational institution – redacted];
(m)Summons to appear at Melbourne Magistrates’ Court dated [redacted];
(n)Letter from Detective Senior Constable [redacted] dated [redacted];
(o)QZGZ’s personal statement dated 11 May 2017;
(p)Undertaking of Bail dated [redacted];
(q)Police Certificate from QZGZ’s country of citizenship;
(r)Further submission by QZGZ’s legal representative dated 20 November 2017;
(s)Letter from [redacted] Support Worker dated 4 July 2017;
(t)Accused copy charge sheet dated [redacted];
(u)Warrant issued [redacted];
(v)Email from QZGZ to Visa Applicant Character Consideration Unit (VACCU) dated 9 December 2017;
(w)Further letter from QZGZ to VACCU dated 3 January 2018;
(x)National Police Certificate dated 19 December 2017;
(y)Further letter from QZGZ to VACCU dated 31 January 2018; and
(z)Snapshot of QZGZ’s mobile telephone ‘Viber’ settings
The documents listed above are contained in the G documents, which also include a decision record by another division of this Tribunal affirming the decision to cancel QZGZ’s Student Visa.
LEGISLATIVE FRAMEWORK
The jurisdiction of the Tribunal in this matter is provided by section 500(1)(b) of the Act.
Section 501(1) of the Act is one of a number of discrete powers conferred under section 501. It provides for refusal to grant a visa, if the visa applicant does not satisfy the Minister, or their delegate, that they pass the character test.
The character test is defined at section 501(6) - 501(12) of the Act and refers to a range of character matters that the Minister or their delegate may have regard for in deciding whether to refuse or cancel a visa (or revoke a mandatory cancellation of a visa). QZGZ’s visa application was refused under section 501(6)(d)(i), which states that a person does not pass the character test if:
‘(d) in the event the person were allowed to…remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia; or
…’
The Respondent does not say that QZGZ fails the character test in relation to any of the other provisions at section 501(6) of the Act. If QZGZ is found to fail the character test, I must then determine whether the discretion under section 501(1) of the Act to refuse to grant him a visa should be exercised.[18] Guidance in exercising the discretion is found in the Direction.
[18] The Federal Court has reinforced the importance of adhering to the two-step process mandated by s 501 of the Act. See for example: Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67 at 69 (Edmonds J); Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113 at 119 (Nicholas J, Moore and Rares JJ agreeing); Aksu v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 667 at 674 (Dowsett J), quoted with approval in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 at 523 (Kiefel and Bennett JJ).
DIRECTION No. 65
The Minister is empowered by section 499 of the Act to issue the Direction and section 499(2A) mandates that a body having functions or powers under the Act, such as the Tribunal, must comply with the Direction[19]. Paragraph 6.1 of the Direction sets out the following objectives:
[19] Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J.
6.1 Objectives
(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.
…
(4) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
By way of general guidance, paragraph 6.2 of the Direction provides:
6.2 General Guidance
(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.
(2) ….
(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 principles referred to under General Guidance are reproduced below and constitute a framework within which decision-makers must apply the considerations in Parts A, B, or C of the Direction:
6.3 Principles
(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 the 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.
Paragraph 7(1)(a) of the Direction states that a decision-maker ‘…must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa.’ Part B is the relevant Part of the Direction for QZGZ’s application, as it contains the considerations relevant to the refusal of a visa application. Paragraph 8(1) of the Direction explains that the considerations in Part A and Part C for existing visa holders and in Part B for visa applicants are different:
Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
If it is determined that QZGZ does not pass the character test, the three primary considerations in paragraph 11(1) of the Direction must be applied to the specific circumstances of his case:
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) of the Direction requires that the other considerations which are to be taken into account in deciding whether to refuse a visa, 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.
Paragraph 8(3) of the Direction states that ‘Both primary and other considerations may weigh in favour of, or against, refusal…of a visa.’ Paragraph 8(4) states that ‘Primary considerations should generally be given greater weight than the other considerations.’ Paragraph 8(5) states that ‘One or more primary considerations may outweigh other primary considerations. The Tribunal can give equal or greater weight to any consideration[20].
[20] Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303; 124 ALD 68.
Relevantly in this matter, section 1, paragraph (4)(b) of Annex A to the Direction states:
‘A person who does not already fail the character test, and is the subject of criminal charges in Australia, which have not yet been finalised before the relevant court, would not generally be considered under section 501 until the charges have been finally determined.’
Annex A, section 2 of the Direction is titled ‘Application of the character test’. Paragraphs 6 and 6.1 relevantly state:
6 Risk in regards to future conduct (section 501(6)(d))
(1) A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would engage in any of the conduct specified in section 501(6)(d) of the Act. The types of conduct specified are discussed below.
(2) The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.
(3) It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.
6.1 Risk of engaging in criminal conduct in Australia (section 501(6)(d)(i))
(1) A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person will engage in criminal conduct in Australia.
(2) The reference to criminal conduct must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded.
ISSUES
The issues for determination are:
(a)whether QZGZ passes the character test within the meaning of section 501(6)(d)(i) of the Act; and
(b)if not, whether the discretion in section 501(1) of the Act to refuse his Bridging Visa should be exercised, after applying the considerations at Part B of the Direction to the specific circumstances of his case.
TRIBUNAL CONSIDERATION
Justice Lander (Carr and Sundberg JJ concurring) of the Full Court of the Federal Court of Australia explained the nexus between the character test and Parliament’s intent, in Akpata:[21]
The definition of a person passing the character test in s 501(6) shows that Parliament intended that persons who have been convicted of relatively serious crime; associate with criminals; have a history including an immediate history of criminal conduct or general conduct indicating bad character; are a significant risk of engaging in criminal conduct or undesirable conduct (s 501(6)(d)), should not be permitted to travel to or remain in Australia. Shortly put, persons who have committed or are likely to commit criminal or other like conduct should not be permitted to travel to or remain in Australia. Because the purpose is to exclude those persons, the matters that are relevant to the exercise of the Minister’s discretion will include any fact or circumstance which would suggest that a person of otherwise bad character (as it is defined in the Act) should be allowed to travel to or remain in Australia.
[21] Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65 at [105].
It is worth noting that the reference to the word ‘significant’ is no longer used in conjunction with assessing risk since Akpata. Pursuant to the current Direction, I must only be satisfied there is more than a minimal or trivial risk that QZGZ would engage in conduct of character concern within the meaning of section 501(6)(d)(i) if permitted to remain in Australia. It is insufficient to find, however, that he has engaged in conduct of character concern in the past, but that a risk exists of him engaging in future conduct for which a criminal conviction could be recorded.[22]
[22] Annex A, section 2, subsection 6.1(2) of the Direction.
The Direction provides further guidance in relation to conduct based on Wong at [33]:[23]
As a matter of construction it seems to us that conduct can now be both general and criminal at the same time so that the Minister may take into account both conduct which is criminal conduct and conduct which is general conduct…The concepts of criminal conduct and general conduct referred to cannot, now, be considered to be mutually exclusive…
[23] Annex A, section 2, clause 5(2) of the Direction, referring to Wong v Minister for Immigration and Multicultural Affairs [2002] FCAFC 440 (Wong).
In this matter, however, the Respondent does not submit that QZGZ has engaged in other serious non-criminal conduct beyond the single pending charge he is currently required to answer. That said, 501(6)(d)(i) of the Act does not require a person to have been convicted of an offence in order to fail the character test. I adopt my reasons in Veliu v Minister for Immigration and Border Protection [2017] AATA 1247 in this regard (at [16]).[24] Moreover, the Respondent does not contend that QZGZ offends any of the other provisions at section 501(6) of the Act, beyond section 501(6)(d)(i). I am satisfied on the evidence that only section 501(6)(d)(i) is relevant to my consideration of whether QZGZ passes the character test.
[24] See also, Veliu v Minister for Immigration and Border Protection [2018] FCA 53.
In relation to his oral evidence, QZGZ had to be directed to respond to questions being asked on a number of occasions. Some of his responses also appeared inconsistent with the evidence he gave at a previous Tribunal hearing regarding the cancellation of his Student Visa. Differences were also noted in what QZGZ purportedly told police when interviewed about the images and videos on his phone, and what he now says about some of those matters. During the hearing both the Respondent and Tribunal asked QZGZ to address inconsistencies in his evidence. Although I have continuing concerns about those inconsistencies, I accept that QZGZ’s first language is not English and that he has been in Australia for less than three years – the last of which has been in immigration detention. Moreover, his submission that an interpreter was not provided during his interview with police was unchallenged by the Respondent and gives rise to the possibility that some of the inconsistencies now noted may relate to language issues. Finally, I accept that QZGZ, on the advice of his legal representative, may wish to make submissions in court rather than in the Tribunal about evidence that is highly relevant to the criminal charge against him. There is certainly an overlap in the material being considered by the Tribunal and that the court will also consider in determining the criminal charge. I draw no negative inference from QZGZ’s unwillingness on occasions to respond to questions that are highly relevant to the court’s determination of the criminal charge against him.
In relation to the Respondent’s reliance on LSSY,[25] I consider it is distinguishable from the present matter in a number of respects:
(a)The visa refusal decision in LSSY relates to a student visa application, which had been made while the Applicant was overseas in Vietnam. The visa refusal decision in the present matter relates to an Applicant who resides in Australia, has already had his student visa cancelled, and has subsequently had his Bridging Visa application refused. The reviewable decision before me relates solely to the refusal of QZGZ’s Bridging Visa application.
(b)For student visa cancellations under section 116(1)(e) of the Act, a decision-maker is required to consider if the presence of an Applicant 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 an individual. By any measure, ‘might be’ sets a comparatively lower bar in relation to assessing the risk of future offending than that required under section 501(6)(d)(i) of the Act. The latter requires that ‘there is a risk’ the person would engage in criminal conduct if allowed to remain in Australia.
(c)I note that the Ministerial Direction applying at the time of LSSY was Direction No. 41. This provided at paragraph 7.3.2(2) that if a visa applicant’s conduct was the subject of pending criminal charges in Australia, no decision should be made in respect of the character test until the charges had been resolved. It was therefore conceded in LSSY that the delegate’s decision was invalid because the delegate was prevented by operation of paragraph 7.3.2(2) of Direction No. 41, from applying the character test in respect of the Applicant’s past and present general and criminal conduct. The comparable provision in the current Direction (No. 65) is framed in less restrictive terms, stating that a person who does not already fail the character test, and is the subject of criminal charges that are yet to be finalised by a court, ‘would not generally be considered under section 501 until the charges have been finally determined’.[26] I accept that use of the word generally does not impede the Tribunal’s consideration of this application.
(d)In LSSY, South Australia Police did not pursue the two charges (unlawful sexual intercourse with a person under the age of 12, and possession of child pornography), because the visa applicant had returned to Vietnam soon after being charged. In the present matter, the visa applicant is in Australia and has been charged with an offence to which he has pleaded “not guilty”. He continues to express a desire to have his defence against that charge heard as soon as possible.
[25] LSSY v MIAC [2011] AATA 334.
[26] Annex A, section 1, subsection (4)(b) of the Direction.
The Respondent invites me to find that QZGZ fails the character test on the basis of a single and as yet unproven charge. In Gong v Minister for Immigration and Border Protection (Gong),[27] the Federal Circuit Court considered the inferences that may be drawn from the fact that a visa holder has been charged with a criminal offence. A question considered by the court was whether any such inference is sufficient to give rise to the power to cancel a person’s visa under section 116(1)(e) of the Act. As previously discussed, QZGZ’s Student Visa was previously cancelled under this provision, but it is not the reviewable decision before me in the present matter. Nevertheless, the reasoning in Gong is apposite to the present matter. In Gong, Judge Smith held at [55]: ‘I do not think that the mere fact that charges have been laid gives rise to any inference that there was a reasonable basis for those charges’ (emphasis in original). But the fact that a charge has been laid by police, who currently appear to be progressing a brief of evidence to trial, requires weight to be given to the existence of that charge. The seriousness of the charges, even though they are unproven, must also be considered in that regard. That is because the consequences arising from the risk of such conduct occurring in the future, if the criminal charge is eventually proven, may be both serious and unacceptable to the community.
[27] (2016) 309 FLR 151; [2016] FCCA 561.
The evidence of a charge against QZGZ is accompanied by evidence that he pleaded “not guilty” to that charge and was deemed suitable to be granted bail on his own undertaking.[28] The Bail Act 1977 (Vic) (Bail Act) governs decisions as to whether a person accused of an offence should be granted bail, with or without conditions, or remanded in custody.[29] Guiding principles of the Bail Act weigh the importance of community safety with taking account of the presumption of innocence and the right to liberty.[30] Bail decision-makers must take into account a non-exhaustive list of surrounding circumstances, including the nature and seriousness of the alleged offending, the strength of the prosecution case, the accused’s criminal history, and the accused’s personal circumstances.[31] Having regard to all of the circumstances, a bail decision-maker granted QZGZ bail. That of itself does not mean, however, that QZGZ does not constitute a risk of future offending, but it is a factor bearing upon my consideration of his application.
[28] Exhibit A3.
[29] Bail Act 1977 (Vic), s 1A.
[30] Bail Act 1977 (Vic), s 1B.
[31] Bail Act 1977 (Vic), s 3AAA.
In cases where there is a history of offending or proven misconduct, an adverse inference can more reliably be drawn given the findings of fact, for example, which are contained in sentencing remarks. Proven offences or other serious conduct also enable a decision-maker to more accurately consider the risk of re-offending or harm arising from a repeat of the offending conduct. In Minister for Immigration and Multicultural Affairs v Ali,[32] Branson J held that a conviction and sentence was strong prima facie evidence of the facts and bestowed a heavy onus on the person seeking to challenge such facts, to show why they should not be accepted. Bower and Turner have stated in The doctrine of res judicata[33] that:
... where a conviction is the foundation for the exercise of a power, no challenge can be made to the fact of the conviction or to the essential facts on which it was based. But…where the exercise of the power is not founded on a criminal conviction, then, even if the conviction be relevant, a challenge may be made to the essential facts on which it was based.
[32] (2000) 106 FCR 313.
[33]Bower, George Spencer, and Turner, Alexander Kingcome, The doctrine of res judicata (Butterworths, 2nd ed., 1969) 215.
The reviewable decision in QZGZ’s case does not arise from any conviction in Australia or his country of citizenship, or other proven serious conduct that offends legislative provisions. operating by reference to such convictions or serious conduct. The decision instead rests on an inference made from a single criminal charge that has yet to be tested. The Respondent relies solely on alleged conduct leading to the making of the charge, submitting that ‘if the Tribunal is satisfied that the Applicant possessed child exploitation material in the past, the Applicant may knowingly possess child exploitation material in the future.’[34] Moreover, the Respondent submits there is compelling probative evidence to support the charge against QZGZ. With respect to that submission, a court is yet to determine the probative value of any evidence and whether or not QZGZ has knowingly possessed child exploitation material. If that finding of fact is established by a court, it may very well inform conclusions about the risk of him repeating such behaviour in the future. But as things currently stand, QZGZ denies knowingly possessing the offending material, states he has a valid defence, and after a year in immigration detention says he is keen to answer the charge at the earliest opportunity. He is entitled to have his evidence and the evidence against him weighed by a court, without that pending charge alone being the basis for his potential removal from Australia.
[34] RSFIC.
The key inference I draw from the pending charge is that Victoria Police currently consider QZGZ has a case to answer. I understand a further technical report is being sourced by police, which will inform ‘next steps’. There is no court date yet listed and it remains to be seen if the charge proceeds to trial, although there is no evidence that it will not proceed to trial. My role, is to form a view about QZGZ’s character and the risk of him engaging in criminal conduct in the future if allowed to remain in Australia, based on the evidence tendered by the parties. I must take care to remain within the parameters of the Tribunal’s jurisdiction and avoid unjust prejudice, particularly given the substantial overlap between the evidence the Tribunal must necessarily consider in deciding QZGZ’s application, and the evidence the court is also likely to reflect upon in deciding whether the charge against him is proved. The presumption of innocence and QZGZ’s right to silence must not be subverted.[35]
[35] McMahon v Gould (1982) 7 ACLR 202.
The Respondent addressed the potential for unjust prejudice ahead of the court’s hearing of the charge against QZGZ, by drawing on LSSY at [49-50], in submitting that:
The evidence given in the proceedings would not necessarily be admissible in any subsequent criminal proceedings. It would be open to the Visa applicant to apply for an order that relevant evidence tendered at the hearing of the present proceeding should be maintained in confidence pursuant to s 35 of the AAT Act.
To the extent that relevant information is produced pursuant to a compulsory process of this tribunal, the resulting information would be subject to an implied undertaking by the respondent not to disclose the information to third parties…
The representative for the respondent would not be involved in prosecuting the visa applicant for the pending criminal charges, because the office of the State Director of Public Prosecutions would act in that matter.
… the outcome of the present proceedings is unlikely to receive any publicity, and the court hearing the criminal charges is unlikely to pay any regard to, or be influenced by, the findings of this tribunal; and this is not a matter where the Court or jurors who hear the criminal charges would be influenced by such matters.[36]
[36] Respondent’s submissions dated 30 July 2018, paragraphs 20-21.
In response to this submission, I note the reasoning of Hayne, Kiefel and Bell JJ in X7 v Australian Crime Commission,[37] who held at [71] that it is undesirable to require a person to answer questions about a pending charge:
Requiring the accused to answer questions about the subject matter of a pending charge prejudices the accused in his or her defence of the pending charge (whatever answer is given). Even if the answer cannot be used in any way at the trial, any admission made in the examination will hinder, even prevent, the accused from challenging at trial that aspect of the prosecution case. And what would otherwise be a wholly accusatorial process, in which the accused may choose to offer no account of events, but simply test the sufficiency of the prosecution evidence, is radically altered. An alteration of that kind is not made by a statute cast in general terms. If an alteration of that kind is to be made, it must be made by express words or necessary intendment.
[37] (2013) 248 CLR 92.
Their Honours went on to say at 105:
The notion of an accused person's "right to silence" encompasses more than the rights that the accused has at trial. It includes the rights (more accurately described as privileges)…which that person has between the laying of charges and the commencement of the trial.
(Footnotes omitted).
As highlighted by Deane J noted in Hammond,[38] it is also undesirable that evidence yet to be heard in a criminal proceeding, should be the subject of parallel inquiry before an administrative tribunal:
…it is fundamental to the administration of criminal justice that a person who is the subject of pending criminal proceedings in a court of law should not be subjected to having his part in the matters involved in those criminal proceedings made the subject of a parallel inquisitorial inquiry by an administrative tribunal with powers to compel the giving of evidence and the production of documents which largely correspond (and, to some extent, exceed) the powers of the criminal court.
[38] Hammond v Commonwealth of Australia [1982] 152 CLR 188 (Hammond) per Deane J at 206.
Deane J’s observations are relevant to the present matter, noting that the evidence here is not being examined in a parallel court proceeding, but precedes the court hearing by some months. That puts QZGZ in a conflicted position. His choice is to either exercise his right to silence ahead of the criminal hearing, which he is entitled to do without an adverse inference being drawn, or waive that right and produce evidence on which his defence of the criminal charge concurrently rests. The Respondent, drawing again from the reasoning in LSSY, submits that QZGZ’s ‘prospects of succeeding in his application to the Tribunal would be greatly prejudiced if he were to claim the privilege against self-incrimination.’[39] I respectfully do not support that view. Applicants who seek administrative review of decisions should not feel compelled to disclose evidence about pending criminal charges in Tribunal proceedings. This is not a burden discernible from the provisions of the Act. It is the Respondent who is required to justify why a person’s conduct supports a visa refusal decision. Just as the Full Court of the Federal Court’s decision in SRT[40] stands for the proposition that it is impermissible to impugn a conviction,[41] inferences from unproven criminal conduct alone should be treated with caution when it is the sole basis used to cancel or refuse a visa.
[39] Respondent’s submissions dated 30 July 2018, paragraph 19.
[40] Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234.
[41] Ibid, per Branson, Lindgren and Emmett JJ at 240 [25].
CONCLUSION
At the time his Student Visa was cancelled, QZGZ had been bailed by police on his own undertaking. The consequence of his student visa cancellation, based solely on a pending criminal charge against him, is that he was immediately taken into immigration detention where he has remained for the last year.
While accepting that past conduct can have a bearing on future risk, what QZGZ is alleged to have done is disputed and yet to be determined by a court. Much of the material against him in the present proceeding is founded on suspicion, relying on adverse inferences being drawn from a single, unproven charge. This suspicion is set in the context of no previous history of offending or other proven misconduct. The past is therefore not fertile ground in supporting the proposition that QZGZ fails the character test, or is an unacceptable risk of engaging in criminal conduct in the future.
It is clear that police currently consider QZGZ has a case to answer and weight is reasonably placed on that. But assessments of character or risk are not reliably founded on that fact alone. It is also accepted that sexual and violent crimes, particularly those involving children, are very serious and of understandably great community concern. But care must be taken when making inferences from the seriousness of a type or category of offence. On the evidence before me, the police case against QZGZ awaits finalisation of technical evidence before the court can schedule a hearing. QZGZ says he has a valid defence. If, as currently anticipated, the matter proceeds to trial and a conviction is recorded, further adverse implications may arise for QZGZ’s ability to remain in Australia. Until then, he is entitled to the presumption of innocence.
Having regard for the evidence currently before me, I do not consider that the threshold issue of risk has been made out. I find on the balance of probabilities that there is no more than a minimal or remote risk that QZGZ would knowingly possess child abuse material in the future. It therefore follows I am satisfied QZGZ does not fail the character test. In light of that finding, it is not necessary to consider whether the discretion in section 501(1) of the Act to refuse his Bridging Visa should be exercised.
DECISION
The Tribunal sets aside the reviewable decision and remits the matter to the Respondent for reconsideration of QZGZ’s Bridging Visa application, with the direction that QZGZ passes the character test within the meaning of section 501(6) of the Act.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC .....[sgd].............................................
Associate
Dated: 3 October 2018
Dates of hearing: 26 September 2018 Applicant: In person Counsel for the Respondent: Ms Natalie Campbell Advocate for the Respondent: Mr Adam Cunynghame Solicitors for the Respondent: Sparke Helmore
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