Re LCNB and Minister for Immigration and Border Protection
[2015] AATA 463
•30 June 2015
[2015] AATA 463
Division GENERAL ADMINISTRATIVE DIVISION File Number
[redacted]
Re
LCNB
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President S E Frost
Date 30 June 2015 Place Sydney The decision under review is set aside and substituted with a decision that the applicant’s application for a Protection visa is not refused on character grounds.
........................[sgd]................................................
Deputy President S E Frost
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – visa refusal – application for Protection visa – failure to pass character test – substantial criminal record – discretion to refuse applicant's visa – Ministerial Direction No 65 applied – protection of the Australian community – seriousness and nature of the relevant conduct – the risk conduct may be repeated – expert evidence of low risk of reoffending – expectations of Australian community – broad middle ground of Australian community – non-refoulement obligations – not a serious non-political crime – no danger to the Australian community – decision under review set aside and substituted
LEGISLATION
Migration Act 1958: ss 36, 91T, 91U, 499, 501(1), 501(6), 501(7)
CASES
[redacted]
Minister for Immigration and Citizenship v Anochie [2012] FCA 1440
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55
NAGV and NAGW of 2002 v Minister for Immigration and Multicultural Affairs (2005) 222 CLR 161
SZOQQ v Minister for Immigration and Citizenship [2013] HCA 12Fletcher v Commissioner of Taxation (1988) 19 FCR 442; [1988] FCA 362
SECONDARY MATERIALS
Direction no. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Convention Relating to the Status of Refugees 1951 Arts 1A, 1F, 33
REASONS FOR DECISION
Deputy President S E Frost
30 June 2015
INTRODUCTION
This matter comes before the Tribunal on remittal from the Federal Court.
The applicant applied for a Protection (Class XA) visa in June 2013, claiming that he had a reasonable fear of persecution as a homosexual man in Tonga, his country of birth. A delegate of the Minister refused the application on character grounds. The applicant applied to the Tribunal for review of that decision but the decision was affirmed: [redacted]. The applicant then appealed to the Federal Court. The appeal was allowed by consent, and the matter was remitted to the Tribunal for reconsideration.
The single issue before this Tribunal on remittal is whether the applicant’s visa application should be refused under s 501 of the Migration Act 1958.
THE LEGISLATION AND MINISTERIAL DIRECTIONS
The Minister may refuse to grant a visa if the Minister reasonably suspects that a person does not pass the character test in s 501(6)(a) of the Migration Act, and the person does not satisfy the Minister that he or she passes the character test: s 501(1).
A person is taken not to pass the character test if he or she has a substantial criminal record. A person who has been sentenced to a term of 12 months imprisonment or more has a substantial criminal record as defined: ss 501(6)(a) and (7).
The applicant concedes that he has a substantial criminal record and does not pass the character test. The question then is whether the correct or preferable decision is to exercise the discretion to refuse the visa sought.
Section 499 of the Migration Act empowers the Minister to give written directions about the exercise of powers under the Act, including the discretionary power to refuse to grant a visa on character grounds. The delegate who made the decision to refuse to grant a visa to the applicant made that decision by reference to the written Ministerial direction that was in force at the time, an instrument entitled Direction no. 55 – Visa refusal and cancellation (Direction no. 55).
Direction no. 55 has since been revoked, and replaced by Direction no. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction no. 65). Direction no. 65 was signed by the Minister on 22 December 2014 and is expressed to commence “on the day after it is signed” (clause 2). It is Direction no. 65 that I must take into account on this remittal proceeding.
GENERAL BACKGROUND
The applicant was born in Tonga [redacted].
He grew up in Tonga and first left that country [redacted] at the age of 18. He went to [redacted] university, [redacted].
In around August or September 1998, while living in student accommodation at the University, the applicant was caught in the act of having sex with another male student. The incident was reported to the University Board and the applicant was subsequently expelled from the University. He moved to California and then [redacted] to Utah.
In May 2001 the applicant was picnicking in a park in Salt Lake City, Utah, with gay and lesbian friends. He went to the public toilet and urinated. Just as he was “finishing and shaking the drips off [himself]”, he noticed a young boy come into the toilet and approach the opposite end of the wall urinal. The applicant left the toilet and returned to his friends. He says there was nothing more to the interaction with the boy than that.
Within minutes, however, the boy’s father and some others he was with confronted the applicant and accused him of being a “child molester” and of having masturbated in front of the boy. The applicant denied it. One of the men said to the applicant “you’re a faggot” and punched him in the face. The applicant, afraid that there might be a brawl, told his friends to call the police. The police arrived within minutes. Their focus quickly turned to the alleged incident in the toilet. The applicant went to the police station and gave a statement about what happened. The police told the applicant that the boy’s parents wanted to press charges. He was eventually charged with “Lewdness involving a child”, which is a “Class A Misdemeanour” in Utah.
The applicant initially claimed, in the earlier Tribunal proceedings, that he thought he entered a plea of nolo contendere (no contest) to the charge but he now acknowledges that the official documents indicate that he pleaded guilty. He signed a form entitled “STATEMENT OF DEFENDANT ENTERING A GUILTY PLEA” which included the following statement of “specific comprising elements of each offense” (Ex A1, page 45):
Defendant did intentionally & knowingly in a public place i.e. Sugarhouse Park did exposed (sic) his genitals to a child (Isaac) in a rest room on or about May 12, 2001.
That is a narrower set of circumstances than those included in the “Probable Cause Statement” at Ex A1, page 39, based on the statement of I.C. (the boy), that the applicant:
… exposed and rubbed his penis in I.C.’s presence. The defendant then asked I.C. if I.C. wanted to touch the defendant’s penis and asked if he could touch I.C.’s penis.
In terms of the offence of “Lewdness involving a child” in the Criminal Code of Utah, the description of the elements of the applicant’s guilty plea conforms with paragraph (1)(b)(ii) of section 76-9-702.5: “intentionally or knowingly does any of the following to, or in the presence of, a child who is under 14 years of age: … (b) exposes his or her genitals … (i) in a public place”, rather than paragraph (c) of that section: “masturbates”.
On the guilty plea, the applicant was given a one year suspended sentence. He was transferred to an immigration detention centre and about a month later he was deported to Tonga.
He then spent the next ten years or so in Tonga, during which time he was in business [redacted]. During that time he was convicted of forgery offences involving the obtaining of false passports. He was sentenced to 12 months imprisonment, but that sentence was suspended for two years on condition that he carry out 120 hours of community service.
THE APPLICATION FOR A PROTECTION VISA
The applicant’s application for a protection visa, received by the Department on 6 July 2012, became Ex R15 in the remittal proceeding.
In his application the applicant disclosed that he had arrived in Australia on a temporary business visa [redacted] but that he had also been in Australia [redacted].
He did not disclose, either in the application forms themselves or in the statutory declarations and written submissions that accompanied the forms:
·that he had ever been to the USA;
·that he had a criminal record in the USA; or
·that he had a criminal record in Tonga.
DIRECTION NO. 65 IN OUTLINE
The purpose of Direction no. 65 is stated to be “to guide decision-makers performing functions or exercising powers under section 501 of the Act”: clause 6.1(4). Its purpose is not, and cannot be, to direct decision-makers to exercise their powers in a particular way, either in favour of or against visa holders or visa applicants. The Direction can only tell decision-makers how they must go about exercising their powers. As is stated in clause 6.1(2):
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.
This Tribunal is a “decision-maker” for the purposes of the Direction: Annex B – Interpretation.
The Principles set out in the Direction are said to “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”: clause 6.2(3). Those Principles are found in clause 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 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.
Clause 7(1) of the Direction explains that, “[i]nformed by the principles in paragraph 6.3 above”, a decision-maker “must take into account” the considerations in the relevant Part of the Direction. Different Parts of the Direction deal with visa holders, on the one hand, and visa applicants, on the other. Clause 8(1) explains that separating the considerations in this way:
… 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.
Clause 8 proceeds to explain how the considerations should be taken into account:
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
Part B of the Direction sets out the considerations to be taken into account in relation to visa applicants. As foreshadowed, the considerations are separated into Primary considerations and Other considerations.
The Primary considerations (clause 11(1)) 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.
Clause 12 deals with Other considerations. Although the clause is headed “Other considerations – visa applicants”, the text of subclause (1) contains an obvious error. It provides:
In deciding whether to cancel (sic) a visa, other considerations must be taken into account where relevant. These considerations 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.
One assumes that the word “cancel” in the first line should instead be “refuse”.
INTERPRETATION OF THE DIRECTION
The Direction is a complex and prolix instrument containing guidelines, statements of principle, mandatory instructions, summaries of expectations and references to “the Government’s views”. Different parts of the Direction use different expressions to convey apparently similar, if not identical, concepts. A question that has exercised my mind is the extent to which I might be expected to massage the language to bring more coherence to the Direction than it appears to exhibit.
In considering the approach to the interpretation of an earlier Direction (Direction no. 41) made under s 499 of the Migration Act, Perram J said in Minister for Immigration and Citizenship v Anochie [2012] FCA 1440:
[24] The relevant portions of Direction 41 are set out above at [16]. The general clauses expressly require decision-makers under s 501(2) to take into account ‘the non-refoulement obligations contained in [inter alia, the ICCPR]’ and ‘any non-refoulement obligations’ where relevant. The decision-maker to whom Direction 41 is addressed is bound, as I have noted above at [14], to obey Direction 41 by s 499(2A) (‘a person or body must comply with a direction under subsection (1)’). The author of the Direction is, by s 499(1), the Minister. The power conferred on the Minister to make directions about functions or powers under the Act is a power only exerciseable if the directions are ‘about: (a) the performance of those functions; or (b) the exercise of those powers’. What is involved, then, is a species of delegated legislation; the Minister is empowered to give authoritative guidance on the approach to the Act’s application provided always that the directions so given are not inconsistent with the Act itself. It is perhaps an example of interstitial regulation. It is a set of rules of general application, albeit operating within a confined zone of activity. Although circumscribed within that zone, the Minister’s directions nevertheless operate as new rules of law binding on all relevant decision-makers: Minister for Industry and Commerce v Tooheys Ltd [1982] FCA 128; (1982) 42 ALR 260 at 265 per Bowen CJ, Northrop and Lockhart JJ (‘[t]he distinction is essentially between the creation or formulation of new rules of law having general application and the application of those general rules to particular cases’).
[25] As a species of delegated legislation, Direction 41 is to be interpreted in accordance with the general principles relating to the interpretation of Acts of Parliament: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 398 per Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ citing DC Pearce, Delegated Legislation in Australia and New Zealand (Butterworths, 1st Ed, 1977) at 286 [628]; see also DC Pearce & S Argument, Delegated Legislation in Australia (LexisNexis Butterworths, 4th Ed, 2012) at 461 [30.1]. The learned author of that work notes a possible qualification to that principle to which the Court did not refer in Agfa-Gevaert; that is, the need to keep in mind that regulations are often addressed to practical people skilled in a particular trade and hence often exhibit minor inconsistencies which ought to lead to their interpretation in light of practical considerations: see Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180 at 183 per Lord Reid. As Professor Pearce notes, this principle has received support in Australia and is ‘eminently sensible’ in the case of ‘regulations that are endeavouring to deal with day-to-day situations and which impose obligations on persons who are in no position to consult a lawyer as to the meaning of the legislation’: Delegated Legislation in Australia (4th Ed) at 462-463 [30.3]. Murphy J accepted that a regulation was to be construed as one with its authorising statute, but nevertheless thought that ‘such regulations evolve in the same way described by Lord Reid and his observations are applicable to them’: Driscoll v J Scott Pty Ltd (1976) 8 ALR 593 at 598.
[26] Assuming such an approach is available in the case of regulations generally, I do not think that approach should be taken to Direction 41. It is one thing to say that a shop or factory regulation should be read with a little latitude in light both of its likely authors and readers, another altogether to put Direction 41 in that category. Its subject matter shows that its intended readership consists of delegates of the Minister making difficult administrative decisions under a statute which itself is of considerable complexity, as well as the Tribunals and Courts that will, from time to time, be called upon to review decisions made by reference to the Direction. Assuming that Lord Reid’s statement forms part of Australian law, I do not think that it would be appropriate to apply it in this case. There may, indeed, be a reason in the future to doubt its on-going relevance. Previously, regulations were drafted (or at least settled) by the Office of Legislative Drafting and Publishing, which is within the Commonwealth Attorney-General’s Department. Following the passage of the Parliamentary Counsel and Other Legislation Amendment Act 2012 (Cth), the function of drafting subordinate legislation has been transferred to the Office of Parliamentary Counsel, which is also responsible for the drafting of statutes: see Explanatory Memorandum, Parliamentary Counsel and Other Legislation Amendment Bill 2012 (Cth). One assumption upon which Lord Reid’s statement is premised – a differing approach to drafting – is likely, as this régime progressively takes effect, to be falsified.
[27] In any event, at least in the first instance, Direction 41 should be interpreted in accordance with the general principles of statutory interpretation.
Those general principles of statutory interpretation were summarised by the High Court in Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55 at [39]:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text”[1]. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.
[1] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46; [2009] HCA 41
Direction no. 65 is a new Ministerial instrument, replacing Direction no. 55. It has been common practice for new Directions to be made every few years. Direction no. 55 was preceded by Direction no. 41. Before that there was Direction no. 21. All of these Directions deal with the exercise of powers under s 501 of the Migration Act but each of them is a creature of its time.
Over time the emphasis in the Directions has shifted. Some concepts have been removed, new ones have been introduced. The language has changed. While in a sense there has been an evolution of the stated principles and guidelines over the years, each Direction is effectively a stand-alone document. Whatever cohesion or overarching context is to be found in the guidance provided to decision-makers must be discovered within the individual document, from an examination of the text, not from the history or the development of other documents, now revoked.
PRIMARY CONSIDERATIONS
Since the applicant has no children, the only relevant primary considerations in Direction no. 65 are the protection of the Australian community and the expectations of the Australian community.
Protection of the Australian community from criminal or other serious conduct
Clause 11.1(1) introduces this consideration in the following way:
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.
The second sentence of that introduction appears to reinforce the principle in clause 6.3(6), quoted in [24] above. The third sentence is by way of explanation of the principle. I take it to indicate that, even in light of the low tolerance held by the community towards visa applicants who have previously engaged in criminal or other serious conduct, the “protection of the Australian community” enquiry does not stop at that point: the use of the word “also” in the third sentence confirms that to be the case. In other words, decision-makers should acknowledge that the community’s level of tolerance is low, but the factors in (a) and (b) help the decision-maker to gauge how low it would be in the particular circumstances of the case.
Clauses 11.1.1 and 11.1.2 explain the concepts and provide instructions and guidance to the decision-maker. I set out those clauses in full:
11.1.1 The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:
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 committed against vulnerable members of the community (such as minors, 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;
c) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
d) The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
e) The sentence imposed by the courts for a crime or crimes;
f) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
g) The cumulative effect of repeated offending;
h) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
i) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
11.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(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 re-offending; and
ii.evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
iii.the duration of the intended stay in Australia.
(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.
There are a few points to note about those clauses.
The first is that decision-makers must have regard to the matters set out in subclauses a) to i) of clause 11.1.1(1) and the matters set out in subclauses a) and b) of clause 11.1.2(3).
The second is that, in contrast, decision-makers should have regard to the matters set out in clauses 11.1.2(1) and (2). It is not clear why the language should differ in that way. I do not take it to indicate that the matters in these clauses are necessarily less important than the others.
The third is that decision-makers should be careful not to inadvertently elevate any of those matters into primary considerations. Rather, as the text and the context make clear, they are matters to which decision-makers must, or should, have regard in coming to a view on the primary consideration of “protection of the Australian community from criminal or other serious conduct”.
The fourth is that the matters will not necessarily all point in one direction: see also clause 8(3). Some may point against the non-citizen, others may point in favour of the non-citizen or be neutral. It is not then a matter of scoring the various categories and adding or subtracting them for a mathematical answer greater than or less than zero. It is a process of identifying, properly considering, weighing, deciding and then ultimately exercising (or not exercising) a discretion.
Finally, no particular matter is decisive. Whether particular matters are more important than others, and the extent to which that may be so, are assessments that the Direction plainly leaves to the decision-maker alone to make.
I turn now to the applicant’s criminal record.
First, the sexual offence. Whatever happened in the park in Utah happened 14 years ago. There is no suggestion that anything remotely similar has happened since.
I say “whatever happened” because it is unclear exactly what did occur. The applicant said he initially thought he had pleaded no contest to the charges as a way of getting released from custody as quickly as possible. He maintained at the time, and he has maintained ever since, that he did not do what he was eventually convicted of. The circumstances surrounding the events lend plausibility to his claim, in particular the fact (which has not at any time been challenged) that it was the applicant’s actions, not those of his accusers, that led to the attendance of the police at the scene. Nevertheless, he pleaded guilty, and he must live with the conviction that has been recorded.
Even the fact that nothing similar has occurred since may count for little if experts were of the view that he has a tendency towards that behaviour or at least demonstrates anything other than a low risk of repeating it. But they think nothing of the sort.
Dr Stephen Allnutt, a psychiatrist engaged by the Minister to provide an expert report for the purposes of the remittal proceeding, considered the applicant’s risk of future sexual recidivism to be “low”. He placed significant caveats around the formal methodology he used in reaching that assessment, but his report placed emphasis on the applicant’s lengthy period of time in the community, post-offence, without evidence of further sexual offending (Ex R8, page 9).
Dr Richard Furst, a psychiatrist engaged by the applicant, also rated the applicant’s risk of sexual re-offending as “low”. His comments about the formal rating methodology reflected much the same qualifications as Dr Allnutt. Dr Furst also noted the absence of any apparent paedophilia or mental illness, the absence of any substance abuse issues, the lack of any previous or further offences, a history of stable employment, the “one-off” nature of the offence and the fact that it was “on the less serious end of the scale with respect to sexual offences” (Ex A, page 32). Dr Furst did note the presence of childhood trauma of a sexual nature – the applicant has reported beatings and instances of rape committed against him because of his sexual orientation – but that did not weigh heavily enough for Dr Furst to change his assessment. Dr Furst also reported the applicant denied any interest in children or child pornography – an issue I will return to later in these reasons, at [57]-[58].
At the time he wrote his report, Dr Furst had little in the way of detail about the forgery offence in Tonga. During the hearing he was asked whether his opinion would change now that he had a greater understanding of that offence. He said it would not change his assessment of the applicant’s likelihood of re-offending sexually. He also said the fact of the forgery offence, together with its non-disclosure by the applicant, presented a slightly higher risk of the applicant’s committing further non-sexual offences.
Dr Antonella Ventura is a psychiatrist engaged by the applicant for the purposes of the first Tribunal hearing. On remittal before this Tribunal, the Minister sought to inquire whether the evidence she gave at the first hearing, which was mostly supportive of the applicant, was affected by what she now knew about the applicant’s criminal conviction in Tonga.
Dr Ventura noted that the offence in Tonga was both non-violent and non-sexual. I understood her to say that, on that basis, it did not impact on the likelihood of the applicant’s committing further sexual offences. She said more important factors pointing towards sexual re-offending would be a personality disorder, particularly one of an anti-social nature. She did not see this in the applicant.
She also said that, now that she was aware of the offence in Tonga (which she had not known about when she wrote her earlier reports), she would find it difficult to be confident of the truth of what the applicant has reported in his history.
Dr Ventura was also asked about some of the oral evidence she gave at the first Tribunal hearing. Mr Leerdam, for the Minister, took her to the following extract of questions he had put to her on the earlier occasion, and her answers (Annexure to Ex R6, lines 15-22):
MR LEERDAM: Well, the question is this. Dr Ventura, did the applicant talk to you about his contact with any other children, particularly children who are not related to him?
DR VENTURA: I asked him and he said he doesn’t have any contact with children not related to him.
MR LEERDAM: I see. So you asked him and he said there was no contact with children not related to him?
DR VENTURA: That’s right. He said something along the lines he doesn’t have a chance to interact with children who are not close to him.
Mr Leerdam was exploring the point now because this extract appeared to contradict evidence the applicant had given about his interaction with children [redacted], his involvement in teaching traditional dancing to children and his involvement in junior rugby. When challenged with the apparent contradiction, the applicant had earlier explained, in the current proceeding, that he had simply misunderstood Dr Ventura’s questions. He said the questions had followed on from a discussion about [redacted]; he did not think she was putting the question about children generally.
Dr Ventura was unable to throw any light on the position. She had no specific recollection of the interview or the questioning in it, but she said it would be unusual for her to ask questions like that. She said she would have wanted information about all his dealings with children. I accept what she says. But the question is, what did the applicant think she was asking? The applicant’s explanation, that it was a simple misunderstanding, struck me as both plausible and honest. I reject the alternative suggestion that the applicant’s answer was an attempt to conceal that he is a paedophile.
Next is the forgery offence in Tonga, which happened 11 years ago.
Its occurrence became known only quite late in the piece, since the applicant failed to disclose it on his visa application. In fact it came out almost by accident when, during the first Tribunal hearing, the Senior Member asked the applicant about his time in Tonga during the period 2003 to 2012 [redacted]:
SENIOR MEMBER: Have you been charged with any criminal offence in Tonga?---Of this nature, no.
Of any nature?---There was an accusation once before.
I’m sorry?---There was an accusation once before regarding travel documents.
What happened to that accusation?---I had filled out an application for a travel document and submitted it.
What happened to the accusation?---I don’t know.
Were you charged? Were you taken to court?---Yes.
What happened?---I was given 120 hours of community service.
When was that?---I don’t recall. 2005.
What was the allegation?---I – [redacted] I sometimes help people fill out – translate and help fill out their applications that they’re requesting visas or travel documents.
And?---And I had filled out a travel document that turned out to be a fraud document.
Turned out to be a?---A fraud document.
A fraud document?---Yes.
What did that mean?---The – it was a passport, the immigration had issued a passport to somebody who wasn’t the person they claimed to be.
…
SENIOR MEMBER: So this business about the travel documents in 2005, was there a conviction recorded?---No. I was given 120 hours of community service. The judge told me that I – it’s a lesson to be more careful about things that I do. It wasn’t – there weren’t the – it was targeting the – a person who worked for the Tongan Immigration who did the passports so they were saying that he was doing fake passports and selling them. [redacted] I – which I claimed to this, really no way out, I received a birth certificate and an application and somebody pays me $20 to fill it out in English for them. That’s what we do. And so that’s all – that was all.
But that was not all. The applicant pleaded guilty to four counts each of forgery, knowingly dealing with forged documents and conspiracy to commit forgery. The offences related to the use of the birth certificates of Tongan nationals to lodge false applications for Tongan passports, on behalf of foreigners.
[redacted]
The applicant was sentenced to 12 months imprisonment, suspended on condition that he carry out 120 hours of community service.
The applicant explained in his statutory declaration dated 10 March 2015 (Ex A1, page 15a):
My understanding was that because I was given 120 hours of community service, I did not have a conviction. I thought that if I got a conviction I would have had to go to jail or at least pay a fine.
I accept that was the applicant’s honest belief.
Of course, as is now known, the applicant was not, and should not have been treated as, a first offender. The judge in Tonga was not aware of the applicant’s criminal record in the United States. It may be that the sentence imposed in Tonga would have been heavier if he had been.
That background brings into play subclauses a), b), e), h) and i) of clause 11.1.1(1) and almost the entirety of clause 11.1.2 of the Direction. It is possible that subclause d) of clause 11.1.1(1) is also enlivened although I did not understand the Minister to focus on that subclause specifically. In any event the “principle” in that subclause adds nothing once subclauses a) and b) come under consideration. I ignore subclause f) since there is no trend or pattern in the applicant’s offending.
Subclauses a) and b) – and i), for that matter – of clause 11.1.1(1) weigh heavily against the applicant. That one of his convictions is for an offence of a sexual nature, and involving a minor, highlights the seriousness of his position with respect to this primary consideration. Nevertheless, the sentence he received at the time (subclause e)) – 12 months, the lowest sentence that meets the threshold of substantial criminal record for the purposes of 501(7)(c) of the Act – and the fact that the sentence was suspended, indicate that the specific offence to which the applicant pleaded guilty stands at the lower end of the scale of offending.
The risk of re-offending, as assessed by three experts – subclause b)i. of clause 11.1.2(3) – is low. That assessment is unsurprising, given 14 years without any behaviour resembling that of which he was convicted. During those years (with the exception of the time that he has spent in immigration detention) he has had regular and frequent contact with children. No complaints have been levelled against him with respect to any of his interactions with children. He denies a sexual attraction to children and I believe his denial.
As for the forgery offences, they were described by the sentencing judge as serious, and there is no way to pretend that they were not. However, the fact that there has been no repetition of that behaviour in the intervening 11 years (and given the assiduousness of the Minister’s representatives, I am confident that if there had been any repetition it would have been uncovered) provides a sound basis for concluding that the likelihood of future re-offending is low.
Subclause h) of clause 11.1.1(1) requires me to have regard to the applicant’s provision of false or misleading information to the Department, including by not disclosing his prior criminal offending. He said in his statutory declaration dated 23 April 2014, at [64]:
I was so embarrassed and ashamed of what I had been accused of in the US, as well as ashamed and unhappy about being expelled from University that I really just blocked out that whole period of my life from my mind. It was the only way that I could deal with it.
I find that explanation unconvincing.
Nevertheless, subclause h) is a matter that I must have regard to “[i]n considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct” (the chapeau of clause 11.1.1(1)). That is to be done as part of the exercise of coming to a view on the primary consideration of “protection of the Australian community from criminal or other serious conduct”.
It is not immediately clear to me how the fact of the applicant’s previous provision of false or misleading information is meant to inform this particular part of the exercise. It may be that subclause h) invites me to consider whether the applicant’s concealment of his criminal history answers the description “other serious conduct”. I will proceed on the assumption that it does. Even then, I “should also give consideration to” the risk to the Australian community should the applicant engage in “other serious conduct” – which, in context (clause 11.1(1)), does not appear to be confined to the particular type of conduct already identified. But that is surely not asking me to predict, or to assess the risk to the Australian community of, any serious conduct at all. That would launch me onto a path of speculation, and could lead to entirely capricious outcomes, inconsistent with the rigorous decision-making process that is the evident intent of the Direction.
Clause 11.1.2(1) clarifies the position. The question is whether the applicant “represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community”. The clause notes 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 may be unacceptable”. In other words, the focus is on the risk of harm arising from a repeat of the particular type of conduct identified – here, concealing his criminal history. There is a risk of harm if the applicant were to fail to disclose his criminal history, and particularly the US conviction, at some stage in the future, and thus undermine the integrity of a “Working With Children Check” – assuming he wanted to continue his previous, complaint-free, involvement with junior sport, dance instruction and similar activities. With the amount of scrutiny his past has come under in this and the previous proceeding, I consider it unlikely that the applicant would attempt to conceal his past again. Undoubtedly he would expect such an attempt to be unsuccessful.
Expectations of the Australian community
This consideration is contained in clause 11.3(1), in the following terms:
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 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.
I note the content of the first sentence. It is, I think, self-evident. With the exception of the false declaration on his visa application, the applicant appears to have met the Australian community’s expectation.
The second and third sentences appear to add little to corresponding statements in clause 11.1. To the extent that it may be appropriate to refuse a visa based solely on the breach of trust, or on the nature of the character concerns or offences, it is difficult to see how these sentences either differ from or augment the matters already dealt with in the first of the primary considerations.
The reference in the final sentence to “the Government’s views” is, with respect, somewhat opaque. Is the sentence simply intended to reinforce the ideas that precede it, in effect seeking to suggest there is an absolute equivalence between the Government’s views and the Australian community’s expectations? That would be a surprising suggestion in a healthy democracy of the kind we enjoy. Rather, in my view, the sentence is a separate, discrete entreaty to the decision-maker. And the Direction itself exposes the Government’s views through the Principles in clause 6.3, where the Minister (as a representative of the Government of the day) refers to the privilege of being allowed to enter Australia, the expectation that non-citizens are, and have been, law-abiding, and the references in 6.3(5) and (6) to the low tolerance Australia is expressed to have in relation to criminal or other serious conduct.
At the end of the day, I consider it unlikely that any decision-maker can identify the “expectations of the Australian community” with any degree of confidence. They are surely as diverse as the range of people who comprise that community. They are not, for example, to be found in the shrill rants of the talkback radio host who, from his privileged position and despite his own societal misdeeds, expresses outrage and steadfast intolerance of the misdeeds of others. For our community is more subtle, more complex than that. It comprises a vast array of people from a range of backgrounds, cultures and experiences, who live according to the simple principle of wanting to give others a fair go, just as they would expect for themselves. It is within the broad middle ground of our society that the “expectations of the Australian community” are properly to be sought.
There is one further point to make. In a country where fear and intolerance have not yet fully taken hold, and where it is not yet the case that he who is right is the one who shouts loudest, there is surely one overarching expectation of the broad middle ground of the Australian community. That is that decision-makers make their decisions in accordance with the law and on the basis of all relevant, probative material before them, irrespective of the views held by those who have not turned their mind to that material and who, in any event, have neither the capacity nor the authority to make those decisions.
OTHER CONSIDERATIONS
Clause 12 of the Direction deals with Other considerations. Clause 12(1) is in the following terms:
In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations 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.
International non-refoulement obligations
Of the specified Other considerations, both parties focused their attentions on subclause a), international non-refoulement obligations.
This consideration is set out in clause 12.1, as follows:
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2)The existence of a non-refoulement obligation does not preclude refusal of a non-citizen’s visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists.
(3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s501 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa).
(4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.
(5)If, however, the visa application being considered for refusal is a Protection visa application, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).
(6)In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligations should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa application were refused, they would face the prospect of indefinite immigration detention.
That is a consideration that I must take into account, if it is relevant: clause 12(1).
However, before doing so, I should engage with the applicant’s submissions with respect to the Tribunal’s jurisdiction.
The applicant notes that on 19 December 2012, a delegate of the Minister concluded, as far as Australia’s “Protection Obligations” in respect of the applicant are concerned, that “1A [is] met”[2]. I take that to be a reference to Article 1A of the Convention Relating to the Status of Refugees 1951 as amended by the 1967 Protocol (the Refugees Convention)[3], and a conclusion that the applicant meets the terms of that Article.
[2] Exhibit A1, page 34
[3] See also clause 12.1(1) of Direction no. 65, quoted in [82] of these reasons
Article 1A provides that for the purposes of the Convention, the term “refugee” applies to any person who:
… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country …
It seems that the delegate who concluded that the applicant met the terms of the Article (the section 36 delegate) did not also hold a delegation from the Minister to decide whether or not to refuse the applicant’s visa application under s 501(1) of the Migration Act. The application was forwarded to the appropriate area of the Department that deals with character issues. A delegate (the section 501 delegate) refused the application on character grounds, and included the following in the statement of reasons for refusal[4]:
Whether Australia has international non-refoulement obligations to the person
[The applicant] was found to be a person to whom Australia has protection obligations under the Refugees Convention.
I accept that [the applicant] has a well-founded fear of being persecuted in the foreseeable future if he was returned to Tonga and that Australia therefore has a non-refoulement obligation under the Refugees Convention towards him.
A decision to refuse [the applicant] a Protection visa on character grounds is not, in itself, a decision to remove [the applicant] from Australia, nor does it necessarily lead to such action.
[4] Exhibit A1, page 36 at [11]-[13]
Against that background, the applicant contends that, because of the limited jurisdiction granted to the Tribunal under the Migration Act (relevantly, in respect of decisions made under s 501 on character grounds), the Tribunal does not have jurisdiction to re-determine the applicant’s accepted refugee status. The applicant contends as follows (emphasis in the original; references omitted)[5]:
Allowing the respondent to argue the applicant’s refugee status would have the perverse effect of allowing the respondent to seek to review its own decision. Further, Article 1A of the Refugee Convention considerations are specifically not conferred on the Tribunal by the Act.
…
Section 500 is an exhaustive expression of the Tribunal’s jurisdiction in relation to disputes between visa applicants and the respondent. The respondent contends that article 1F has some relevance in relation to serious non-political crimes. Aside from the fact that the alleged offence in Utah was a misdemeanour incapable of attracting the application of 1F in any case, the only circumstances in which article 1F can be considered by the AAT are in applications made under the grant of jurisdiction in s 500(1)(c)(ii) in relation to decisions made pursuant to s 36(2C)(a)(ii). The present case is properly characterised as an application under s 500(1)(b) in relation to a decision made pursuant to s 501. To the extent evoked (sic) by the applicant, section 500 only applies in part (namely section 500(1)(a)) and a proper construction of the Tribunal’s jurisdiction must be confined to the terms of the statute accordingly. Therefore whether the applicant is guilty of an offence for 1F purposes (which is denied) is an irrelevant consideration.
The finding that the applicant in fact had a well-founded fear of persecution (and is thus a refugee) was made by an earlier delegate of the respondent and it was entered into his database system on 19 December 2013 (sic). This decision is not open to review in the present matter. The decision of that delegate is not before the Tribunal for review and nor can it be (the proper forum, if any, being the Refugee Review Tribunal pursuant to Division 2 of Part 7 of the Act).
[5] Applicant’s Amended Facts and Contentions at [19]-[22]
Article 1F of the Refugees Convention, referred to in the applicant’s contentions, says this:
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a)he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b)he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c)he has been guilty of acts contrary to the purposes and principles of the United Nations.
During the hearing the applicant’s counsel summarised the position as follows: I cannot consider the applicant’s status as a refugee; I cannot take into account Article 1F; I must accept that the applicant is a refugee; and I cannot determine that he is not a refugee.
Before dealing with the applicant’s contentions and submissions, I need to refer to one more provision of the Refugees Convention, and that is Article 33:
PROHIBITION OF EXPULSION OR RETURN (“REFOULEMENT”)
1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
In my view, the applicant’s contentions and submissions are wrong to the extent that they seek to prevent me from taking into account Article 1F. In all other respects the contentions and submissions are correct.
To understand why that is so, it is necessary to focus on the context and the effect of the delegate’s conclusion with respect to the applicant’s satisfaction of Article 1A. The finding that “1A [is] met”[6] amounts to the recognition that the applicant is a refugee for the purposes of the Convention. That means that he has met “a criterion” for a protection visa, namely the criterion in s 36(2)(a) of the Migration Act. He is:
a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
[6] Exhibit A1, page 34
As explained by the High Court in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural Affairs (2005) 222 CLR 161 at 173-174, 176 and 187, and also in SZOQQ v Minister for Immigration and Citizenship [2013] HCA 12 at [14], the language of s 36(2)(a) does no more than describe a person who is a refugee within Article 1A of the Convention. (Since those decisions, the relevant provision of the Act has been amended to correct an error of expression identified by the plurality in that case, at 172, and to introduce the notion of the Minister’s satisfaction in substitution for the existence of objective facts, but those amendments do not undermine the principle.)
So, the applicant was accepted through the gateway in s 36 because of the finding by the section 36 delegate that the applicant was a refugee for the purposes of the Convention. That does not mean that he is entitled to a protection visa. Section 35A(6) says that he must also meet “any other relevant criteria prescribed by regulation for the purposes of section 31”. But at least he is part of the way along the journey.
From the perspective of the section 36 delegate who accepted that the applicant was a refugee, the consideration of the applicant’s circumstances seems to have stopped at that point. That is not meant as any criticism of the delegate. In all likelihood, departmental protocols, whatever they may be, were fully adhered to. It would come as no surprise to hear that a delegate for s 36 purposes is empowered to answer the threshold question Is the applicant a refugee? but not also empowered to answer questions going, for example, to the seriousness of any criminal offending (Article 1F) or any danger that an applicant may present to Australia’s security (Article 33(2)). They are questions more likely to arise in the context of the consideration of an applicant’s character, and no doubt that is the territory that will be explored, in appropriate circumstances, by a delegate with power to make decisions under s 501. And it is the delegate’s decision under s 501 that is under review in this proceeding.
There are two reasons why I am prohibited from taking the refugee question any further.
The first reason is that (putting character issues aside) the section 36 delegate’s finding that the applicant is a refugee is one of the steps along a decision-making path that could end up in the grant of a protection visa, or the refusal of a protection visa on grounds other than character. Any such refusal, if reviewable at all, will be reviewable not in this Tribunal but in the Refugee Review Tribunal, under Part 7 of the Migration Act.
The second reason is that, in any event, the Minister’s delegate has made a finding that the applicant is a refugee. That is because the delegate reached the requisite level of satisfaction expressed in s 36(2)(a), and no section 36 delegate has since countermanded that position – for example, by expressing non-satisfaction as to those matters, or satisfaction of the opposite, and formally recording the fact. I do not overlook the fact that the Minister’s representative in this proceeding has submitted that the applicant is not in fact a refugee. However, a submission of that nature – and especially a submission by a person who is not himself a section 36 delegate – does not have the effect of negating the actual satisfaction that the delegate reached. It remains the case, therefore, that the applicant is in fact a refugee.
For completeness, I note that s 43 of the Administrative Appeals Tribunal Act 1975 (AAT Act) does not alter that position. Section 43 provides that the Tribunal “may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision” – often paraphrased as the Tribunal stands in the shoes of the original decision-maker. But there is an important qualification in s 43 – the conferral of relevant powers and discretions on the Tribunal is “for the purpose of reviewing a decision” – and the decision in that context is the decision in respect of which the Tribunal has a review function. As the Full Federal Court said in Fletcher v Commissioner of Taxation (1988) 19 FCR 442 at 452; [1988] FCA 362 at [34]:
As a matter of principle, it must be correct, as submitted on behalf of applicants, that the powers and discretions referred to by s.43(1) are the powers and discretions vested in the original decision-maker for the purposes of making the decision under review. They do not include any powers and discretions which may be vested in the decision-maker for some other purpose.
Any powers and discretions that are vested in the Minister under s 36 of the Migration Act were not exercised for the purposes of making the decision to refuse the applicant a visa, under s 501, on character grounds. In my view, as things stand at the moment, that is the end of the matter as far as the applicant’s status as a refugee is concerned.
Nevertheless, because I am required by clause 12(1) to take into account Australia’s international non-refoulement obligations, I must proceed with an enquiry in the context of that clause: by asking myself, first, whether there are any such obligations, and second, if there are any, what they are.
The final sentence of clause 12.1(1) assists me in that enquiry. It says that I should follow the tests enunciated in the Migration Act, since the Act reflects Australia’s interpretation of the obligations.
Sections 91T and 91U of the Migration Act were in force at the time of the original decision and they remained in force when I conducted this hearing. They have apparently since been removed by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 but the Minister has not made any approach to the Tribunal to indicate that they do not remain relevant to the current proceeding. In those circumstances I regard them as relevant and will consider them.
The sections were in the following terms:
91T Non-political crime
For the purposes of the application of this Act and the regulations to a particular person, Article 1F of the Refugees Convention as amended by the Refugees Protocol has effect as if the reference in that Article to a non-political crime were a reference to a non-political crime within the meaning of this Act.
91U Particularly serious crime
For the purposes of the application of this Act and the regulations to a particular person, Article 33(2) of the Refugees Convention as amended by the Refugees Protocol has effect as if a reference in that Article to a particularly serious crime included a reference to a crime that consists of the commission of:
(a) a serious Australian offence; or
(b) a serious foreign offence.
As it happens, neither provision has any impact on this case.
In relation to s 91T, the definition of non-political crime in s 5 of the Act adds nothing. There is no doubt that both crimes committed by the applicant are within the expression. That is not to say that either of them is a serious non-political crime for the purposes of Article 1F and I will deal with that question below, at [113]-[115].
As for s 91U, the Migration Act definition of serious Australian offence has no relevance to this case. However, serious foreign offence is defined in s 5 as follows:
serious foreign offence means an offence against a law in force in a foreign country, where:
(a)the offence:
(i)involves violence against a person; or
(ii)is a serious drug offence; or
(iii)involves serious damage to property; and
(b)if it were assumed that the act or omission constituting the offence had taken place in the Australian Capital Territory, the act or omission would have constituted an offence (the Territory offence) against a law in force in that Territory, and the Territory offence would have been punishable by:
(i)imprisonment for life; or
(ii)imprisonment for a fixed term of not less than 3 years; or
(iii)imprisonment for a maximum term of not less than 3 years.
Neither offence of which the applicant has been convicted is within paragraph (a) of the definition and so neither of them is a serious foreign offence.
Section 91U therefore, like s 91T, can be put to one side.
Article 1F
The Minister’s submission that Article 1F applies in the applicant’s case, with the result that the provisions of the Refugees Convention “shall not apply” to the applicant, is a decidedly weak one.
In Utah, the applicant was given a 12-month suspended sentence. In Tonga, he was given a 12-month suspended sentence and ordered to perform 120 hours of community service.
Not on any measure do I consider either crime to be a serious non-political crime for the purposes of Article 1F.
Article 33(2)
Under Article 33(2) the following questions arise:
·whether there are reasonable grounds for regarding the applicant as a danger to the security of the country in which he is – namely, Australia; and
·whether, having been convicted of a particularly serious crime, the applicant constitutes a danger to the community of Australia.
The answer to both questions is a resounding “no”. There are no grounds at all, let alone reasonable grounds, for regarding the applicant as a danger to the security of Australia. And he has not been convicted of a particularly serious crime, so the premise of the second question does not exist.
That leads me to consider whether Australia is under the non-refoulement obligation specified in Article 33(1) – namely, not to expel or return the applicant to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
It is clear from the applicant’s evidence, and I find, that during his time in Tonga he has been the victim of beatings and of sexual assault at the hands of people who do not accept his homosexuality. If criminal offending of that kind were repeated, and the actions of the perpetrators were brutal and severe enough, then it is clear that the applicant’s life would be threatened on account of his membership of a particular social group, namely the social group comprising homosexual persons. But in my view, that means that Tonga is a place where his life could be – not would be – threatened because of his membership of that social group.
Would the applicant’s freedom be threatened on account of his membership of that social group? The answer to that question must be “yes”. Current Tongan laws prohibit homosexual practices, and although there is information from the Department of Foreign Affairs and Trade that “[t]he incidence of cases in which the authorities take action appears very low”[7], that does not mean that the applicant’s freedom would not be threatened on account of his being homosexual. The very existence of those laws threatens the applicant’s freedom. Of course, it could be argued that the threat to his freedom would arise from his engaging in homosexual practices, rather than from his simply being homosexual, but the being and the doing are so intrinsically linked that I regard a distinction drawn on that basis as an unreal one.
[7] Exhibit R4, page 31
Australia has an obligation not to return the applicant to Tonga.
The benefit to the Australian community
The “Other” considerations set out in clause 12 of the Direction are inclusive, not exhaustive. The applicant submits that a further consideration I should take into account is the benefit that the applicant can bring to the Australian community.
The applicant arrived in Australia in 2012 and he has spent very little time in this country. He is not a person who has lived in Australia for most of his life or from a very young age. Nevertheless, in the short time he has been here, he has been a worthwhile contributor to Australian society. He has been employed as [redacted]. He has taught traditional dance to young people and been involved in multicultural festivals.
He has the potential to contribute to Australian society in the future.
WEIGHING UP THE CONSIDERATIONS
The Primary considerations point clearly in favour of the applicant.
The risk of his reoffending is low, as assessed by professional practitioners well qualified to carry out that task. I do not consider the Australian community is so intolerant that it would refuse to tolerate the low risk to its continued safety that the applicant represents.
The Other considerations also point in his favour.
CONCLUSION
The decision under review is set aside. I substitute a decision that the applicant’s application for a Protection visa is not refused on character grounds.
I certify that the preceding 128 (one hundred and twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President S E Frost ............................[sgd]............................................
Associate
Dated 30 June 2015
Dates of hearing 17 and 19 March 2015 Counsel for the Applicant Mr M Robinson SC and Mr L Robison Solicitors for the Applicant Ms M Woodroffe, of HIV/AIDS Legal Centre Solicitors for the Respondent Mr L Leerdam, of DLA Piper
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