Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2020] AATA 888

Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020)

Division:                  GENERAL DIVISION

File Number(s):      2020/0585

Re:Mr Rahman

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:20 April 2020

Place:Sydney

The Tribunal decides that:

The reviewable decision, being the decision of a delegate dated 24 January 2020 to refuse the grant of the applicant’s Bridging E (Class WE) Visa, is set aside.

In substitution, it is decided that the application for a Bridging E (Class WE) Visa be remitted to the Minister for reconsideration in accordance with section 65 of the Migration Act 1958 (Cth) with a direction that the applicant is not to be refused the visa under section 501(1) of that Act.

...............................[sgd]........................................

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

VISA CANCELLATION – refusal of Bridging E (Class WE) Visa – failure to pass the character test – whether discretion to set aside the delegate’s decision should be exercised – whether there is any risk of the applicant engaging in future criminal conduct – whether the applicant poses a risk of harm to the Australian community –  Direction No. 79 – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth)

CASES

Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 224

Minister for Immigration and Ethnic Affairs v Wendy Susan Baker (1997) FCR 187

SECONDARY MATERIALS

Direction No. 79 – Visa refusal and cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

20 April 2020

BACKGROUND

1. The applicant in this matter is a citizen of Bangladesh who arrived in Australia on 6 July 2017 and was the holder of a Student (Subclass 500) Visa (‘student visa’). The applicant is now 25 years old.

2. On 8 February 2019, the applicant was convicted of common assault at Burwood Local Court and received a 12-month conditional release order and supervision order. An Apprehended Violence Order (‘AVO’) was also put in place until 19 February 2021 to protect the applicant’s wife, who was the victim of the assault.

3. On 18 June 2019, a delegate of the Minister (‘the Delegate’) cancelled the applicant’s student visa under section 116(1)(g) of the Act and r 2.43(1)(a) of the Migration Regulations 1994 (Cth).

4. On 20 June 2019, the applicant lodged an application for review of the decision to cancel his student visa with the Tribunal.

5. On 24 June 2019, the applicant lodged his application for a Bridging E (Class WE) visa (‘Bridging Visa’).

6. On 5 December 2019, the applicant was sent a Notice of Intention to Consider Refusal of the grant of a Bridging Visa under section 501(1) of the Migration Act 1958 (Cth) (‘the Act’). In response, the applicant provided a personal circumstances form dated 31 December 2019 alongside a psychological report, statutory declarations from himself and his wife, a supervision suspension order, a letter from his doctor, a mental health plan, a reference from his employer and a Bangladeshi police certificate.

7. On 24 January 2020, the delegate refused to grant the applicant’s Bridging Visa under section 501(1) of the Act, on the basis that the applicant did not pass the character test under section 501(6)(d)(i) of the Act.

8. On 3 February 2020, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for a review of the Delegate’s decision to refuse his Bridging Visa.

   THE LAW

9. The character test is defined in s 501(6) of the Migration Act 1958 (Cth) (‘the Act’). Relevant to this matter, a person does not pass the character test if:

   …

   (d)       in the event the person would be allowed to enter or remain in Australia, there is a risk that the person would:

   (i)        engage in criminal conduct in Australia.

10. Section 501(1) provides that the Minister may refuse to grant an individual’s visa if they fail to satisfy the Minister that they pass the character test.

11. If the Tribunal determines that the applicant does not pass the character test defined in Section 501(1), the next consideration is whether, with reference to Direction No. 79 and each of the mandatory and other considerations, the Tribunal should exercise its discretion to set aside the delegate’s decision to refuse the applicant’s bridging visa.

12. Direction 79 provides that this decision is to be approached within the framework of the principles outlined in paragraph 6.3 of Direction 79 (‘the Principles’).

13. The primary considerations in Part B of Direction 79 in deciding whether to refuse the non-citizen's visa are the:

    a.protection of the Australian community from criminal and other serious conduct;

    b.the best interests of minor children in Australia; and

    c.expectations of the Australian Community.

14. The decision-maker must also take into account other considerations insofar as they are relevant to the matter, such as the impact on victims, family members and non-refoulement obligations.

    THE ISSUES

15. The issues for the Tribunal to decide are as follows:

    a.whether the applicant passes the character test as defined in section 501(6).

    b.If the applicant does not pass the character test, whether the Tribunal should exercise its discretion in section 501(1) to refuse the applicant’s Bridging Visa having regard to the considerations prescribed by ‘Direction No 79 – Visa Refusal and Cancellation under section 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA’ (‘Direction 79’).

    THE EVIDENCE

    The applicant’s evidence

16. The applicant gave evidence of the circumstances which led to his conviction of common assault. These circumstances are also outlined in the New South Wales Police Fact Sheet.

17. On 8 November 2018, the applicant and his wife went out for dinner with the applicant’s sister. On their way home they had a disagreement. After falling asleep that night the applicant was awoken by his wife and became upset that she would not speak to him. He grabbed her arms, causing his wife pain and leaving her with bruises. He also bit her on the cheek and his wife bit him on the chest. After he let go of her, he slapped her on the face with an open hand. When the applicant went outside for a smoke his wife called the police.

18. The applicant said that this behaviour was unusual for him and that he is not a violent man. He expressed contrition and shame for his behaviour and said that, when reflecting on this incident, he had realised how he had hurt his wife and the issues he had. He had consequentially gone to see his doctor who referred him to a psychologist in addition to giving him medication. He also went through marriage guidance counselling with his wife, which assisted them in working through communication issues and giving each other space.

19. The applicant first met his wife on 20 March 2017, and he had known her for approximately three months after his arrival in Australia. The applicant married his wife in Bangladesh and his wife came to Australia in September 2018, approximately eight months after their marriage.

20. The applicant admitted that there had been another incident approximately one month after his wife arrived in Australia at McDonalds, but that this was not a violent incident. On that occasion the applicant’s wife had become upset because he was with another female friend. She had called the police, but no action was taken.

21. The applicant also agreed that the outcome of the current proceedings would not determine whether or not he had to return to Bangladesh, as that would be determined by proceedings he had on foot in the Migration Review Division of the Tribunal in relation to the cancellation of his student visa.

    The applicant’s wife’s evidence

22. The applicant’s wife said that prior to and after the incident on 9 November 2018 the applicant had never been violent towards her. She said that the argument sparked as a result of her anxieties around only residing in Australia for a short period of time and missing her family. She said that her husband had not hurt her but had simply tried to restrain her.

23. She said she had developed depression and anger management issues since arriving in Australia and that she had concerns about her mother’s health. Her father had died shortly before she left Bangladesh, and she had experienced issues with the applicant’s mother.

24. However, her life had improved since coming to Australia, and she said that her husband provided her significant emotional support. There has been positive communication between them since they had been to the psychologist.

25. Under cross-examination the applicant’s wife also gave evidence regarding the incident with the applicant at McDonalds. She said that she had called the police because at the time of the incident she was feeling sad and upset with her husband because of his association with another woman.

26. The applicant’s wife said that the psychologist had assisted her greatly with her anger management issues and that she was feeling much happier. She said her husband provided important physical and psychological support for her and that he has never been violent since this incident.

    CONSIDERATION

27. The first matter to be considered is whether the applicant passes the character test.

28. s 501(6) of the Act states as follows:

    …

    (d)       in the event the person would be allowed to enter or remain in Australia, there is a risk that the person would:

    (i)        engage in criminal conduct in Australia.

29. The applicant’s Bridging Visa was cancelled under s 501(6)(d) of the Act. Paragraph 6(2) of Annex A to Direction 79 provides guidance on the application of the character test and assessment of risk in relation to future conduct under s 501(6)(d) of the Act. Paragraph 6(2) provides that the ground is enlivened if there is evidence suggesting that there is "more than a minimal or remote chance that the person, if allowed to enter or remain in Australia, would engage in [the specified] conduct".

30. It is not sufficient to find that the person has engaged in such conduct in the past; there must be a risk that the person would engage in the specified conduct in the future: Paragraph 6(3) of Annex A to Direction 79.

31. The Full Court of the Federal Court in Minister for Immigration and Ethnic Affairs v Wendy Susan Baker (1997) FCR 187 stated that the reference to “criminal conduct” is “not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor's character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material”.

32. Section 501(6)(d)(i) is not satisfied unless, in the event that the applicant were allowed to remain in Australia, there is a risk that he would engage in criminal conduct in Australia.

33. That test was discussed by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 224. At [122]-[128] Her Honour drew attention to the relevant principles to be taken into account in construing the tests in s 501(6) of the Act as follows at [129]:

    Each of the criteria set out in s 501(6) which may cause a person to fail the character test involve the protection of the Australian community. “Protection” is not a narrow concept and extends beyond preventing members of the Australian community from being threatened with, or the victims of, physical violence or conduct which is criminal under Australian law. It may involve, as s 501(6)(d)(iii) contemplates, ensuring that particular members of the Australian community are not vilified. It may also involve protection at a highly individual level: for example, if there is a risk a particular person in Australia would be harassed or stalked by a prospective visa applicant (s 501(6)(d)(ii)).

34. Further, at [130] Her Honour wrote:

    In relation to s 501(6)(d), a qualitative assessment of risk is an express part of the character test itself. Each of the items in s 501(6)(d) in that sense are identified by the Parliament as potential “harm” to the Australian community.

35. Accordingly, the question to be asked is whether there is any risk that the applicant would engage in criminal conduct and cause harm to the Australian community.

36. In considering whether the applicant passes the character test, it is necessary to take into account all the circumstances of the applicant’s offending and any other issues which relate to the assessment of the risk that the applicant would further engage in criminal conduct.

    Does the applicant pass the character test?

37. The applicant was convicted of common assault as a result of an altercation with his wife. It is relevant that his wife had recently arrived in Australia and was largely dependent on the applicant. Domestic violence must be taken extremely seriously, as outlined in paragraph 9.1.1(1)(a) and (b) of the Direction.

38. It is highly relevant that the applicant has no other convictions for violence or for any other offences either in Australia or in Bangladesh. I have also considered that the applicant was given a conditional release order after his conviction in the Local Court, instead of being incarcerated due to the risk he could pose to the victim or the wider Australian community.

39. Whilst the incident initially resulted in the parties living apart for a short period of time due to the imposed AVO conditions, the applicant’s wife immediately applied for a variation of the AVO conditions so the applicant could return to live with her. Notably too, in March 2019, the Supervision Order applied by the Court was suspended when New South Wales Corrective Services assessed the applicant to be a low risk of further offending.

40. There is no cumulative effect of repeat offending and the applicant has not re-offended since being formally warned about the consequences of further offending on his migration status.

41. Although it is of concern that the applicant’s conviction resulted from behaviour that occurred some 18 months after the applicant arrived in Australia and at a time when he was applying for a visa, I accept that the violence occurred shortly after he and his wife started living together and that they may have had a limited acquaintance before they were married. I also accept that their relationship has improved significantly after marriage counselling and medications to control the applicant’s depression, anxiety and marital issues, which lower the risk of recidivism.

42. I also take into account the psychological assessment that the applicant has a low risk of reoffending.  The applicant has attended appointments for individual therapy and couple therapy accompanied by his wife. The applicant’s psychologist noted in his observations that:

    [The applicant and his wife] appeared happy during the psychotherapy sessions. [The applicant’s wife] seemed to feel safe around her husband. There were no signs of abuse or neglect in their relationship. Through my observation, I could see that the [applicant’s wife] has a strong bond with her husband who was present at the sessions.

43. Counsel for the respondent argued that the applicant concentrated on his wife’s behaviour rather than his own anger and aggression in reflecting upon the crime and the circumstances surrounding the incident. Whilst I accept this submission to a limited degree, I also note that the applicant expressed contrition, reflects on his behaviour and the impact it had and has made efforts to change, such as going to marriage counselling. Although the wife’s evidence should be treated with some caution given the nature of the crime, there is no doubt that she is now very supportive of the applicant and they appeared comfortable together. Her evidence is also supported by the applicant's psychologist, who indicated that he considers they have a positive relationship and does not assess the applicant to be a risk to his wife.

44. Given the applicant has never been convicted of any criminal offence other than the conviction for common assault relating to the events of 18 November 2018 and that he has undertaken counselling with his wife, the risk of his reoffending is low.

45. I note further that the applicant’s wife is currently pregnant with their first child. This seems to have given the applicant and his wife a great deal of happiness and in my opinion will be a further factor that makes it unlikely that he will reoffend.

46. It is also relevant that the applicant has expressed significant remorse in relation to his conduct and that his wife has supported him both in relation to his explanation as to the events leading up to his conviction and the extent to which her behaviour, although completely explicable in the circumstances, may have cause the applicant to behave in a manner which would otherwise be out of character.

47. In light of the evidence, which is clear and consistent between the applicant and his wife and was not successfully challenged at the hearing, and having regard to the provisions of the Act, to the Directions contained in 79 including Annexure A, I am of the opinion that the applicant poses minimal if any risk to the Australian community.

    DECISION

48. I am therefore of the opinion that the correct and preferable decision is to set aside the decision of the delegate and for the matter to be remitted to the Minister for reconsideration in accordance with section 65 of the Migration Act 1958 (Cth) with a direction that the applicant is not to be refused the visa under section 501(1) of that Act.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

..................................[sgd]......................................

Dated: 20 April 2020

Date of hearing:	8 April 2020
Counsel for the Respondent:	Ms Donald
Representative for the Applicant:	Mr Rahman