ROMERO and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2010] AATA 196
•23 March 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 196
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0022
GENERAL ADMINISTRATIVE DIVISION ) Re JUAN PABLO SMIT ROMERO Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Deputy President S D Hotop Date23 March 2010
PlacePerth
Decision The Tribunal sets aside the decision under review and, in substitution therefor, decides that the discretion to refuse to grant a visa to the applicant, pursuant to s 501(1) of the Migration Act 1958 (Cth), not be exercised in this case.
............[sgd S D Hotop........
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – student visa – applicant a citizen of Colombia – applicant first arrived in Australia in December 2006 aged 34 years – applicant committed only offences in Australia in January 2008 – applicant sentenced to imprisonment for 14 months suspended conditionally for 24 months – applicant’s application for visa refused –applicant does not pass character test – discretion to refuse applicant’s visa application – primary considerations and other relevant considerations – protection of Australian community favours refusal of visa – hardship to applicant’s pregnant de facto partner and other considerations outweigh protection of Australian community – applicant’s application for visa should not be refused on character grounds – decision under review set aside
Migration Act 1958 (Cth), s 501
Sentencing Act 1995 (WA), s 81(1)
Direction [no 41] – Visa refusal and cancellation under s 501
Re Fang and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1195
Griffiths v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 249
Re Ly and Minister for Immigration and Multicultural Affairs [2000] AATA 339
Minister for Immigration and Multicultural and Indigenous Affairs v Griffiths [2004] FCAFC 22
Re Morgan and Minister for Immigration and Multicultural Affairs [2000] AATA 675
Re Zefis and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 700
REASONS FOR DECISION
23 March 2010 Deputy President S D Hotop Introduction
1. Juan Pablo Smit Romero (“the applicant”) has applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship (“the respondent”), dated 22 December 2009, refusing his application for a student visa. The delegate’s decision was made under s 501(1) of the Migration Act 1958 (Cth) (“the Act”).
The Factual Background
2. The applicant was born in Colombia in June 1972 and is a citizen of Colombia. He first arrived in Australia on 1 December 2006 as the holder of a Student (Temporary) (Class TU) visa, and he made a further application for a student visa on 13 March 2009.
3. Meanwhile, on 3 December 2008, the applicant, following a plea of guilty to, and conviction of, one count of deprivation of liberty and one count of indecent dealing with a child under the age of 13 years, was sentenced in the District Court of Western Australia to a term of imprisonment of 14 months on each count. The Court ordered that the sentences were to be served concurrently and further ordered that the whole of the term of imprisonment be suspended for a period of 24 months, subject to specified conditions.
4. On 22 December 2009 a delegate of the respondent decided, under s 501(1) of the Act, that the applicant’s application for a student visa was refused on the ground that the applicant had not satisfied the delegate that he passed the “character test” within the meaning of that section.
The Relevant Legislation
5. Section 501(1) of the Act provides:
“ The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.”
The “character test” is defined in s 501(6) of the Act which specifies various alternative circumstances in which a person does not pass the “character test” within the meaning of that section. In the present case, the relevant circumstance is that specified in para (a) of s 501(6), namely, “the person has a substantial criminal record (as defined by subsection (7))”. Section 501(7) specifies five alternative circumstances in which, for the purposes of the “character test”, a person has a “substantial criminal record”. In the present case, the relevant circumstance is that specified in para (c) of s 501(7), namely, “the person has been sentenced to a term of imprisonment of 12 months or more”. For the purposes of s 501, the terms “imprisonment” and “sentence” are defined in s 501(12) as follows:
“ (12) In this section:
…
imprisonment includes any form of punitive detention in a facility or institution.
sentence includes any form of determination of the punishment for an offence.”
The Ministerial Direction
6. In reviewing the delegate’s decision in this matter pursuant to s 500 of the Act, the Tribunal is required, by s 499(2A) of the Act, to comply with a direction given by the respondent under s 499(1) of the Act. The relevant direction, as presently in force, namely, “Direction [no 41] – Visa refusal and cancellation under s 501” (“Direction [41]”), was given by the respondent on 3 June 2009 and commenced on 15 June 2009. Part A of Direction [41]:
“ provides directions on the application of the character test ... set out in section 501(6) of the Act;”
and Part B:
“ provides directions on the primary and other considerations that are relevant to determining whether it is appropriate in the specific circumstances of the case to exercise the discretion to refuse to grant or cancel the visa. …”
Direction [41] will be relevantly referred to in more detail later in these reasons.
The Evidence
7. The evidence before the Tribunal comprised:
· the “G Documents” (G1–G10, pp 1–72 and supplementary G Documents (G11–G14, pp 73–96) lodged by the respondent (Exhibit R1);
· Exhibits A1 – A10 tendered by the applicant;
· United Nations Convention on the Rights of the Child (Exhibit R2); and
· the oral evidence of the applicant and of Phuong Thi Chi Phung.
The Sentencing Remarks of Wager DCJ on 3 December 2008
8. The circumstances in which the relevant offences were committed by the applicant, and the applicant’s relevant personal circumstances, were amply described by Judge Wager in her remarks when sentencing the applicant on 3 December 2008. A transcript of Judge Wager’s remarks on that occasion is as follows:
“ WAGER DCJ: You can remain seated Mr Smit Romero. On 3 October 2008, you entered an early plea to charges that on 5 January 2008, you unlawfully detained … and on the same date you indecently dealt with her by touching her on the vagina on the outside of her clothing when she was a child under 13 years.
The victim’s mother and you had been married for four years and you had emigrated to Australia from Columbia (sic) in 2006. Your wife and her daughter, who is the victim, came to Australia about six months after you. She was aged 11 years in 2008, and you were 35.
In 2007, the victim asked for Internet access, and she entered into an agreement with you that you recorded in a notebook that she must pay for the access by January of 2008. The agreement said that if she failed to pay, she would do whatever you asked.
On 5 December – sorry, 5 January, you were alone at home with your stepdaughter in Leederville when your wife was at work. You were watching TV in the bedroom and you told your stepdaughter that she had not paid the Internet access and you were going to do intimate things to her and that she was not to tell anyone, including her mother. You held her down on the bed. She resisted. You held her by her arms. She indicated that she didn’t want you to do what you were doing and she was swearing (sic), begging and repeatedly saying no to you.
During the assault you attempted to kiss her whilst holding her down, and at one point you touched her pubic area on the outside of her clothing. You also kissed her on the cheek and on the neck.
Now, your stepdaughter managed to escape on at least one occasion, but you then physically carried her back to the bedroom. Eventually you stopped and the victim was very upset indeed. She asked to be taken to her mother’s workplace in East Perth and you agreed to that course. So you then took her by bus from Leederville to East Perth where you were present when she told her mother that she – what had occurred between the two of you.
You then voluntarily stayed at the mother’s workplace until the police arrived and then you cooperated with detectives and took part in a video record of interview. I accept that the circumstances in which you cooperated with the police were somewhat exceptional, but I’m dealing here with a very serious matter indeed. This was a child who was in your care. She was only aged 11. She was a child who was relatively new to Australia. She no doubt was isolated and looking for support. Her mother had placed you in a position of trust and authority and you abused that and no doubt confused and terrified the child. This sort of behaviour is not going to be condoned and the community has made that very clear.
I’ve now received and I’ve read the pre-sentence report and the psychological report … I’ll now turn to your family background that’s set out in the reports. You’re one of four sons, and your father was a surgeon and your mother a lawyer. Your background was stable, but when you were 14, your parents separated and your father had a child with another woman. Your brothers were estranged from your father, although your relationship remained steady. You remained very close to your mother, who passed away of cancer in 2006, and you were supportive of her, and her death triggered your decision to come to Australia.
Academically you have achieved well. You completed a degree in computer science and a further five years of study in business. You’ve worked in the Justice Department in Columbia (sic) and in human resources and in finance. You decided to come to Australia in late 2006 to study for a masters in business. You have also been working part time as a factory hand in order to finance your studies and living expenses.
You married your wife, it’s now about five years ago, and this marriage came about after you’d had a number of other romantic relationships as an adult. While in Columbia (sic), your wife had difficulty conceiving a child of the marriage and IVF was unsuccessful. As a result, tensions grew in the marriage and your wife turned on you because of the lack of conception, and your sexual and intimate relationship with your wife suffered until the relationship seemed to break down.
Your wife and your stepdaughter, however, then decided to come to Australia six months after you had arrived, and she made a decision to give the marriage another go. I accept, however, that the move to Australia was not a successful one for the relationship. Your wife did not settle well in Australia and was not happy culturally here. She also was working very long hours indeed, so you had limited time together. The disclosure of these events has led to the breakdown of your marriage, and you’ve been separated now from your wife and your stepdaughter. There is no contact.
Now, because of your wife’s work commitments at the time when your – at the time immediately prior to this offence, you had a greater role in the care and supervision of your stepdaughter than you’d had prior to the arrival in Australia. That meant that you spent a lot of time together and both of you, I find, were new to the culture and probably leading a fairly isolated life. You started inappropriate sexual play with her, and that included blindfolding, tying of hands, laying on her and matters of that type. You must have known this was inappropriate. You did not disclose it to her mother, and her mother at that stage had already started to set boundaries; for example, made it very clear that you must not go into the bathroom when her daughter was there.
You acknowledged that you had curiosity about your stepdaughter’s sexual development of the breasts and pubic area, and I’ve read the reports, and I accept that where you say conflicting things in relation to sexual interest of the – in respect of the child, there’s some confusion in your own mind about what the situation actually was. Now, she told you that she had an interest in boys and not to tell your mother – tell her mother, and this was totally appropriate conduct for an 11-year-old, but what followed was totally inappropriate conduct for an adult who has the care of a child. You fostered a relationship of secrecy that should never occurred (sic).
You’ve said in reports that your daughter’s play had become sexualised in the months before your arrest, and you attributed this in part to the possibility of sexually inappropriate behaviour perpetrated by her uncle towards her. If that was the case, then you had an even greater obligation to ensure that your behaviour was appropriate. If you observe a weakness in a child as a result of previous offending or the behaviour of adults, then as an adult you must be vigilant, you must ensure that the child is given protection, and instead you took advantage of the situation.
You took the opportunity to offend, and you said that you were going to teach her a lesson, effectively that there are responsibilities and repercussions to being sexual, but that was not a lesson for you to teach. You have the role of stepfather, you did not have a role sexually in the child’s life at all. It was a totally inappropriate way of dealing with a discipline issue, if that’s what it was. It was a totally inappropriate was of communicating with a child.
Now, I note that you had drunk alcohol, and you disclosed three cans of beer. You say that you were very affected at the time when the offending occurred and that you do not usually drink. Now, your judgment and your conduct was probably impaired by alcohol, but that is no excuse. It does provide some explanation.
The author of the psychological report confirms that you were depressed and under significant stress at the time you offended, and I accept that that would have been the case in light of the death of your mother and the breakdown of your relationship, and indeed trying to juggle studies and work in a new country. The author states that you need to deal with issues as they arise. If I can just read from page 7, the second-last paragraph. The author says:
He attempted to exert control over the victim by offending against her. However, he did not seem clear about how he was going to achieve this. He knew he wanted to scare her, but wanted to do this within legal limits. It is of significant concern that he persisted with the offending for some time, despite the victim’s obvious resistance. There is nothing to suggest that the offending would not have progressed further if the victim had not protested to the extent that she did.
Mr Romero needs to deal with issues as they arise. Relationships with wife and victim, stress et cetera, rather than allowing them to accumulate and then be expressed in inappropriate ways, such as in the current offending behaviour.
The author goes on to say:
Given all of the above factors, it’s recommended that Mr Romero participates in treatment to address his sex offending behaviour. Sex offender treatment programs are offered by the Department of Corrective Services, both within prison and in the community.
So that is a comment that the author makes. The conduct was terrifying for the child, it was totally inappropriate, but I’m sentencing you on the basis that it was an isolated offence. The touching, although of a sexual nature, was on the outside of the clothing only and it was an isolated touching. I also accept that alcohol had lowered your moral fibre, if I can put it that way, but it certainly doesn’t excuse your conduct. The use of alcohol was perhaps indicative of your state of depression, loneliness and confusion at the time, and I accept that you were suffering from these conditions.
Your wife was working very long hours, your relationship was breaking down, and you had significant stresses from work and study. You have no prior record, you’re now aged 36. Of significance is the unusual course that you took of getting the bus with the victim in order to go to the mother so that the victim could speak to her immediately, and you then stayed and cooperated with the police, and you’ve continued to cooperate throughout.
I also note that you have been separated from your wife and stepdaughter since that time and you have no contact with the complainant at all. It is an early plea, and so the victim is spared the trauma of a trial. You have demonstrated remorse, although that has been somewhat ambiguous because of the contents of the reports, but I accept that English is your second language and that there may be other issues that have impacted on the way in which the communication has been reported to me.
You are keen to take part in a sex offender’s treatment program and clearly able to do so, and the static 99 test indicates that you’re a low risk of re-offending. Now, taking all of those matters into account, I do consider that imprisonment is the only appropriate option, but I do consider that yours is a marginal case to suspend the term of imprisonment that I’m going to impose.
So in relation to the charges, for count 1 and count 2, I’m going to impose concurrent sentences, and for each of those offences it’s a term that would have been 21 months reduced to 14 months, and that’s suspended for a period of two years. So that’s 14 months’ imprisonment suspended for two years. There’s an eligiblity for parole if you’re required to serve the sentence.
The sentence is also a conditional term of imprisonment, and what that means is you’re going to have to take part in a program and be supervised. Now, the supervision will be through the community corrections officer, so you’re going to have to see them and communicate with them as and when directed. The program will more than likely be the sex offender’s treatment program, and if the officer considers that that’s not appropriate or it’s simply not feasible to get you into a course, then clearly a psychological counselling component would be of some assistance to you.
Now, if you offend in any way in the next two-year period and commit an offence for which imprisonment is an option, then you’ll be brought back to this court and you’ll be re-sentenced. You would expect to receive the 14-month term. If you didn’t complete your program or your supervision requirements, then you’ll be brought back to court to be re-sentenced, and once again, you would expect to receive the term of 14 months’ imprisonment.
All right. So that’s the sentence of the court. …” (G6, pp 57–62)
The Applicant’s Evidence
9. In his examination-in-chief the applicant gave evidence to the following effect:
· he has fully complied with the Conditional Suspended Imprisonment Order imposed by the court on 3 December 2008;
· prior to the making of that Order he had requested, and was provided with, psychological counselling in order to help him to cope with stress and other problems in his life and he had found that counselling to be very beneficial;
· he subsequently commenced to participate in a Sex Offender Treatment Program in November 2009 which he is continuing to attend and which he is due to complete in July 2010;
· he is getting significant benefit from the Sex Offender Treatment Program;
· before he committed the offences he was not aware of his “issues” and did not realise that he needed help, but as soon as he had committed the offences he realised that he did need help;
· now, looking back and on reflection, he cannot believe what he did to his stepdaughter and there is “no way” he would commit such an offence in the future;
· he has already learnt a lot from the Sex Offender Treatment Program and feels that it has made a huge difference to his sensitivity to issues and his ability to cope with living in Australian society and he wishes to complete that program;
· he feels very sorry for what he did to his victim and wants to tell her how sorry he is;
· he now realises that what happened was entirely his fault because he misinterpreted his victim’s behaviour and he failed to understand her needs;
· he is still in the process of getting divorced from the victim’s mother – the delay has been caused by problems with documentation regarding marriage property in Colombia;
· his partner, Ms Phung, is expecting their child in May 2010 and he plans to marry her and wishes to live with her and their child as a family unit in Australia;
· he wishes to be in his child’s life for the rest of his life, and he cannot think of life away from his child;
· Ms Phung is an Australian citizen and their child will be an Australian citizen at birth and he wants their child to grow up in Australia;
· if he were removed to Colombia Ms Phung and their child would not accompany him and would remain in Australia.
10. In cross-examination the applicant gave evidence to the following effect:
· his father and his 3 brothers live in Colombia;
· he is close to his family members in Colombia although he and they lead separate lives, and he telephones them every 6 months or so;
· he has no siblings or relatives living in Australia;
· if he were returned to Colombia he would receive emotional support from his family members and they would provide a social network for him;
· as he was born in Colombia and lived, was educated and worked there until 2006, he would not have any language or cultural problems in Colombia and he has tertiary qualifications and substantial employment experience in Colombia.
The applicant was also asked to describe the circumstances of his offences in January 2008. He acknowledged that he then had “mixed thoughts” about his stepdaughter and his parental role and that he allowed himself to become too close to her because he found in her the emotional support he was not receiving from his wife (her mother). He again acknowledged that the circumstances leading to the offences were entirely due to his wrongly interpreting his stepdaughter’s behaviour towards him as sexual and that no blame for what happened between them should be attributed to her. He said that the circumstances that were present when he committed the offences are no longer there and, if a similar situation arose again, he would be able to deal with it appropriately because of the awareness of the issues which he now has as a result of attending the Sex Offender Treatment Program.
The Evidence of Phuong Thi Chi Phung
11. Ms Phung confirmed that she had made a statutory declaration, dated 3 March 2010, for the purpose of this proceeding. The contents of that statutory declaration are as follows:
“1. I was born in Vietnam on … January 1966. I migrated to Australia in 1990 and subsequently became an Australia citizen.
2.I first met Juan Pablo Smit Romero (‘Juan’) in July 2007 when we worked together at the Ingham poultry factory in Osborne Park.
3.From the time that I met Juan we connected on an emotional level and we became good friends. We were able to share each other’s problems, pain and sorrow as well as provide significant emotional support to each other through some very difficult times.
4.As we got to know each other better, Juan started to feel more comfortable with me and he started to discuss the problems he had in his previous relationship. He also talked to me about the stressful times he had during his legal problems. I had many problems of my own as I had to care for my frail and elderly parents, with whom I was living at the time.
5.We spent a lot of time together discussing our problems and comforting each other which helped us both get through these difficult times. Over time, my friendship with Juan developed into a strong mutual affection and then our relationship blossomed into love.
6.We commenced living together in a de facto relationship as husband and wife in June 2008 and despite the trials and tribulations in our life, we have continued to maintain this loving relationship and are still as deeply in love with each other as we have ever been.
7.It is our mutual intention that we continue this relationship forever and that we have a happy and loving family.
8.We both intend to formally marry when Juan is able to finalise his divorce through the Colombian Embassy.
9.In October 2009 we found out that we had been blessed with a child and that this child was due to be born in late May 2010.
10.Given my age and given Juan’s problems in conceiving a child in his previous relationship this was amazingly wonderful news for both of us. I still vividly recall Juan’s elation when we first heard the news and how he was jumping for joy when we had an ultrasound in November 2009 and found out that we had a healthy baby.
11.It is our mutual intention that we bring up our new baby together as a couple in Australia as we believe that Australia offers our child the best possible opportunities for a happy and successful future.
12.I want to live with Juan forever but am fearful that I will not be able to adapt to life in a foreign country like Colombia with its very different language and culture.
13.I am much older now than I was when I came to Australia. I am unable to speak Spanish, the spoken language in Colombia, and I fear that my job prospects and my life prospects in Colombia will be very bad indeed.
14.I also fear for the prospects of our child in a country where abductions and kidnapping are a daily occurrence. Given that our child will be of mixed Colombian and Vietnamese heritage, and given that we would be seen as people from a wealthy country like Australia, I fear that the child will be a very easy target for kidnapping from the many gangs who use kidnapping as a source of revenue in Colombia.
15.Additionally I have responsibilities in Australia for the care of my mother who is now aged in her eighties. My father died on 21 February 2010 after a long illness and I was primarily responsible for his care and wellbeing as an unmarried daughter in a traditional Vietnamese household. I lived with my parents since my arrival in Australia until I commenced living with Juan in June 2008 and I am still primarily responsible for the care and wellbeing of my mother who is now very frail and elderly.
16.Given my father’s recent passing, it would break my mother’s heart and cause her considerable hardship if I left Australia and was no longer able to care for her.
17.Throughout my father’s illness and since his recent death, Juan has been a significant source of strength and emotional support for me throughout this difficult time. He has continued to comfort and console me despite us being forced to live apart because Juan is now being held in the detention centre.
18.I really want Juan to stay in my life forever and our baby also deserves to have Juan in its life and (sic) a father and protector. This will only be possible if Juan is able to stay in Australia for an extended period of time so that our family is not separated.
19.I hope and pray that my strong wishes and the best interests of our family will be taken into account when any determination is made on Juan’s ability to remain in Australia to be with me and our soon-to-be-born child. I really don’t know how I will be able to cope alone without Juan and I don’t want to be forced to bring up our child alone as a single mother when the child’s father is willing and able to be with us and is able to fully contribute to the care and support of our baby.” (Exhibit A4)
12. In her oral evidence Ms Phung said that her mother was in fact born in 1934 and is 75 years old.
13. In cross-examination Ms Phung acknowledged that she was aware of the applicant’s “trouble with the police” during their friendship before they commenced living in a de facto relationship. She said that, if the applicant returned to Colombia, she would allow their child to visit him in the future and that she would also do so but that she would not consider living there.
Additional Material
14. The applicant tendered in evidence various additional documents, including:
· certified copy of a Certificate of Australian Citizenship granted to Thi Chi Phuong Phung on 26 November 1992 (Exhibit A5);
· letter, dated 19 November 2009, from Dr Ashok Kumar, Radiologist, stating that an obstetric ultrasound examination was performed on Thi Chi Phuong Phung on 19 November 2009 and that it was found that there was “a live intrauterine gestation” of 12 weeks and 4 days and that the “EDD is 30/5/2010 (+/- 8 days)” (Exhibit A6);
· First Trimester Screening Report relating to Thi Chi Phuong Phung which states that the First Trimester Ultrasound examination 25 November 2009 found a “normal intrauterine pregnancy” with an EDD of 30 May 2010 (Exhibit A7);
· letter, dated 24 July 2009, from Ebony Walsh, Community Corrections Officer, Department of Corrective Services (WA),which states:
“ On the 03/12/2008, Mr Smit Romero was sentenced in the Perth Magistrates (sic) Court to 14 months imprisonment conditionally suspended for 24 months, for the offences of Deprivation of Liberty and Indecent Dealing of a Child Under 13yrs. The Conditional Suspended Imprisonment (CSI) Order has both a program and supervision requirement.
To date Mr Smit Romero has been extremely compliant with his supervision requirement of his Order. He attends Perth Community Justice Services (CJS) as directed and appears to engage well. He continues to ask questions in relation to his CSI in order to comply with requirements and he will often engage in brief intervention with the writer in relation to gaining a better understanding of his offending behaviour.
Mr Smit Romero has been referred to the Sex Offender Treatment Program (SOTP), and is currently on the demand list and should receive a position in a program in the first quarter of 2010. The SOTP is modelled on a positive and strengths based approach, which consists of approximately 40 sessions covering topics such as: Coping Strategies, Empathy, Intimacy and Attachment, Background Factors, Sexuality, Risk Factors, Supports, Self Management etc.
In the meantime the writer has made a referral for Mr Smit Romero to engage in psychological counselling offered at CJS, for pre-group sessions.
…” (Exhibit A8; G8);
· letter, dated 5 January 2010, from Ebony Walsh which states:
“ Mr Juan Pablo Smit Romero is subject to a Conditional Suspended Imprisonment Order imposed in the Perth District Court on 03/12/2008. The offences for which Mr Smit Romero was charged with are as follows: 1 x Deprivation of Liberty and 1 x Indecent Dealing with a Child under 13 years. The Order which has supervision and a program requirement is due to expire on 02/12/2010.
As Mr Smit Romero was on the wait list for the Sex Offender Treatment Program (CBSOTP) he requested that he be given the opportunity to engage in psychological counselling. Mr Smit Romero was referred to the Department of Corrective Services Clinical Psychologist for seven one-on-one psychological counselling sessions starting on 19/08/2009 and ceasing on 18/11/2009.
On 02/11/2009, Mr Smit Romero was interviewed for the CBSOTP and commenced group work on 11/11/2009. To date Mr Smit Romero has attended all sessions of the CBSOTP (6 in total).
Mr Smit Romero has been required to attend supervision at the Department of Corrective Services on a regular basis, to which he has complied.
…” (Exhibit A9; G12);
· letter, dated 6 January 2010, from Cate Parry, Clinical Psychologist (Registrar), Adult Community Psychological Services, Department of Corrective Services (WA), to the applicant which states:
“ Thank you for your request to confirm your attendance of counselling sessions.
As you are aware, we have had seven counselling sessions on 19/08/09, 26/08/09, 2/09/09, 16/09/09, 30/09/09, 21/10/09 and 18/11/09, offered from the Central West Metropolitan Community Corrections Centre.
This counselling was provided on your request, while undertaking a Conditional Suspended Imprisonment Court Order. The main theme targeted throughout the counselling process was emotional management with a particular focus on dealing with stress and anger.
You were always reliable in your attendance and applied yourself to all strategies and tasks discussed in counselling sessions.
Although no further sessions have been scheduled at this stage, due to your engagement with the Community Based Sex Offender Treatment Program, the opportunity remains for you to re-engage with counselling should you so wish.” (Exhibit A10; G13)
Analysis
Application of the “character test”
15. The applicant submitted that he does not have a “substantial criminal record” (as defined in s 501(7) of the Act) by reason of the sentences imposed on him on 3 December 2008 because on that occasion he was not sentenced to serve any term of “imprisonment” (as defined in s 501(12)); instead, he received a Conditional Suspended Imprisonment Order whereby imprisonment in the form of “punitive detention in a facility or institution” was wholly suspended for a period of 24 months as a result of which he was permitted to be in the community provided that he fulfilled the conditions of the Order.
16. The Tribunal does not accept the applicant’s submission. On 3 December 2008 Judge Wager, having regard to the seriousness of the offences committed by the applicant and to the other circumstances referred to in her sentencing remarks, sentenced the applicant to two terms of imprisonment of 14 months each, to be served concurrently, and then ordered that the whole of each of those terms of imprisonment be suspended for 24 months, subject to specified conditions. That Order was made pursuant to s 81(1) of the Sentencing Act 1995 (WA) which provides:
“ A prescribed court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court, but not more than 24 months, subject to the following conditions –
(a) the standard obligations in section 83; and
(b) one or more of the primary requirements in section 84, as decided by the court.”
The discretionary power, conferred by that subsection, to make a Conditional Suspended Imprisonment Order is expressly conditioned on an offender having first been sentenced to a term of imprisonment. It is appropriately described (as it was in the relevant Second Reading Speech referred to in the respondent’s submissions) as a “post-sentence order”.
17. By reason of the fact that the applicant was, on 3 December 2008, sentenced to two concurrent terms of imprisonment of 14 months each, the Tribunal finds that the applicant has a “substantial criminal record”, as defined in s 501(7) of the Act, and that, by reason of s 501(6)(a) of the Act, he does not pass the “character test”.
18. It follows from that finding that the discretionary power to refuse to grant a visa to the applicant, pursuant to s 501(1) of the Act, is enlivened in this case.
Should the discretionary power to refuse to grant a visa to the applicant be exercised in this case?
19. Part B of Direction [41] comprises paragraphs 8 – 11. Paragraph 9 states:
“(1) … decision-makers must take into account the primary considerations in every case. The other considerations (defined in paragraph 11) should be taken into account where relevant.
Note:The primary considerations are set out in paragraph 10 of this Direction. The other considerations are set out in paragraph 11.
(2)Decision-makers should only take into account directly relevant considerations.
…”
The primary considerations
20. Paragraph 10 sets out the primary considerations as follows:
“ 10.The primary considerations
(1)In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:
(a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b) whether the person was a minor when they began living in Australia;
(c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d) relevant international obligations, including but not limited to:
(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).”
Protection of the Australian community
21. Paragraph 10.1 states:
“ 10.1 Protection of the Australian community
(1)Due consideration is to be given to the Government’s objectives set out in Part 1, paragraph 5 of this Direction.
(2)The factors relevant to assessing the level of risk of harm to the community of the person’s entry or continued stay include:
(a) the seriousness and nature of the relevant conduct; and
(b) the risk that the conduct may be repeated.”
22. The objectives set out in Part 1, para 5 are as follows:
“ 5.1 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)In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.
(3)The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.”
The seriousness and nature of the relevant conduct
23. Paragraph 10.1.1(1) states:
“ 10.1.1 The seriousness and nature of the conduct
(1)Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community.”
Paragraph 10.1.1(2) lists (in paras (a) – (m)) “examples of offences and conduct that are considered serious”, including (relevantly):
“(b) all offences perpetrated against a child (particularly sexually-based offences);”.
Paragraphs 10.1.1(3) and 10.1.1(4) relevantly state:
“(3) The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community. Due regard must be given to the extent of the person’s criminal record, including
(i)the number and nature of offences;
(ii)the period between offences; and
(iii)the time elapsed since the most recent offence.
(4) The following factors are also to be considered:
(a)any relevant information, including, but not limited to, evidence from independent and authoritative sources in respect of the person such as judicial comments in an individual’s case, professional psychological reports, pre-sentence reports for the courts, parole assessments, victim impact statements and similar sources of authoritative information or assessment;
(b)any relevant factors the person provides as mitigating factors;
…”
24. Having regard to the nature of the offences perpetrated by the applicant on 5 January 2008 against his 11-year-old stepdaughter who was then in his care, as described by Judge Wager in her sentencing remarks (see paragraph 8 above), and also having regard to the mitigating factors referred to by Judge Wager, the Tribunal is of the opinion that the applicant’s conduct on that occasion was “a very serious matter” (as described by Wager DCJ), and the seriousness of the two offences perpetrated by the applicant on that occasion was reflected in the substantial term of imprisonment of 14 months to which the applicant was sentenced in respect of each offence. The Tribunal notes that the applicant accepts that the offences in respect of which he was sentenced on 3 December 2008 constitute “serious criminal conduct” for the purposes of para 10.1.1 of Direction [41].
The risk that the conduct may be repeated
25. Paragraph 10.1.2 of Direction [41] states:
“ 10.1.2 The risk that the conduct may be repeated
(1)The person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending.
(2)The following factors are to be considered as particularly relevant to this assessment:
(a)a recent history of convictions, which should be considered as indicating an increased risk of re-offending;
(b)evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and
(c)evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.”
26. The abovementioned two offences which the applicant committed on 5 January 2008, and in respect of which he was sentenced on 3 December 2008, represent his entire recorded criminal history in Australia. The applicant testified that he had no criminal history in Colombia prior to his arriving in Australia – evidence which has not been contradicted and which the respondent did not dispute.
27. As regards the applicant’s previous general conduct, the Tribunal notes the references, by Judge Wager in her sentencing remarks, to the “totally inappropriate” conduct of the applicant in relation to his stepdaughter in the period between her arrival in Australia in August 2007 and the commission by him of the relevant offences in January 2008. In the Tribunal’s opinion the applicant’s conduct in that respect involved a very serious betrayal of the trust which his wife (the mother of his stepdaughter) had placed in him to care for and supervise her daughter when she was at work, as well as a very serious failure properly to perform his parental duty to protect his stepdaughter and nurture her social development by behaving appropriately towards her and setting a good example. The Tribunal accepts the respondent’s submission that it should have regard to the applicant’s abovementioned conduct in relation to his stepdaughter in the period leading up to the commission of the relevant offences, for the purposes of para 10.1.2 of the Direction [41], and that it should regard that conduct as inconsistent with the applicant’s claim that he was a person of good character until he committed those offences and that the commission of those offences was out of character.
28. The respondent concedes, however, that the applicant has engaged in rehabilitation and has fully complied with the requirements of the Conditional Suspended Imprisonment Order made by Judge Wager on 3 December 2008. As regards rehabilitation, the evidence before the Tribunal confirms that:
· while waitlisted for a position in a Community Based Sex Offender Treatment Program, the applicant requested the opportunity to engage in psychological counselling and he was subsequently provided with seven individual counselling sessions by a Department of Corrective Services Clinical Psychologist, Ms Cate Parry, in the period August–November 2009 (see Cate Parry’s letter of 6 January 2010 set out in paragraph 14 above);
· the applicant commenced group participation in a Community Based Sex Offender Treatment Program on 11 November 2009 and has attended all sessions to date and is due to complete the program (consisting of approximately 40 sessions) in July 2010 (see Ebony Walsh’s letters of 24 July 2009 and 5 January 2010 set out in paragraph 14 above, and the applicant’s evidence set out in paragraph 9 above).
29. Having regard to the evidence before it, the Tribunal is satisfied that the applicant has made substantial progress towards his rehabilitation and that the prospects of that progress continuing to the point at which he ultimately achieves rehabilitation and the restoration of his good character are high. In the Tribunal’s opinion those prospects are enhanced by the fact that (according to undisputed evidence before the Tribunal) he is in a mutually supportive and stable de facto relationship with Ms Phung who is due to give birth to their child in or about late May 2010 and with whom he intends to live as a family unit if he remains in Australia.
30. As regards the risk of the applicant’s re-offending, Judge Wager referred, in her abovementioned sentencing remarks, to a psychological report regarding the applicant and, in particular, to a “Static 99” test which indicated that the applicant was assessed as a low risk of re-offending, and she appeared to accept that assessment and included it in the matters to which she had regard in sentencing the applicant.
31. In the Tribunal’s opinion, an important factor which is relevant to an assessment of the degree of risk of the applicant’s committing similar, or other serious, offences in the future is the extent to which he has accepted responsibility for, and is genuinely contrite and remorseful in respect of, the offences which he committed on 5 January 2008. Judge Wager, in her sentencing remarks, referred to the fact that, immediately after committing the offences, the applicant took his stepdaughter by bus to her mother at her workplace, remained present and cooperated with the police then and subsequently, and entered an early plea of guilty. Her Honour also noted that the applicant had “demonstrated remorse” although she added that it appeared from the pre-sentence reports that this was “somewhat ambiguous”. She accepted, however, that that apparent ambiguity may be explicable on the basis that, inter alia, English is the applicant’s second language.
32. Having observed the applicant give his evidence in this proceeding and having considered the content of his evidence, the Tribunal is satisfied that, with the benefit of psychological counselling and his ongoing participation in the Sex Offender Treatment Program, he now understands the inappropriateness of his conduct towards his stepdaughter in the period immediately prior to 5 January 2008 and the criminality of his conduct towards her on 5 January 2008, that he genuinely accepts full responsibility for that conduct, and that he is genuinely contrite and remorseful in respect of that conduct.
33. Having regard to the considerations referred to in paragraphs 26–32 above, including, in particular:
· the assessment of the “Static 99” test, referred to in the psychological report prepared for the purpose of the applicant’s sentencing on 3 December 2008, that the applicant was then a low risk of re-offending;
· the substantial progress subsequently made by the applicant towards his rehabilitation and (in the Tribunal’s opinion) the high prospects of the applicant’s ultimately achieving full rehabilitation and the restoration of his good character; and
· the Tribunal’s assessment that the applicant genuinely accepts full responsibility for his wrongdoing and that he is genuinely contrite and remorseful in respect of his wrongdoing;
the Tribunal is satisfied that the risk of the applicant’s re-offending in a similar, or other serious, manner is very low.
Conclusion regarding protection of the Australian Community
34. Although the applicant committed two offences involving sexual conduct and the use of some force towards a vulnerable 11-year-old child on 5 January 2008, which can only be regarded as very serious, the Tribunal’s assessment is that there is a very low risk that the applicant will commit similar, or other serious, offences in the future. Having regard to all of the factors referred to in para 10.1 of Direction [41] which are relevant to the circumstances of the applicant’s case, the conclusion of the Tribunal is that the “primary consideration” referred to in para 10(1)(a) of Direction [41] – namely, “the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence” – militates in favour of refusal to grant a visa to the applicant, but not to a significant degree.
Whether the person was a minor when they began living in Australia
35. Paragraph 10.2 of Direction [41] states:
“ 10.2 Whether the person was a minor when they began living in Australia
(1)If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.
(2)Less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at that time.
Note: For example, if the person was between 17 and 18 years old on arrival.”
36. By paragraph 6(1) of Direction [41] the word “minor”, for the purposes of the Direction, “has the same meaning as in section 5(1) of the Act”, namely, “a person who is less than 18 years old”. It is common ground that the applicant was 34 years old when he first arrived in Australia in December 2006. The applicant was, therefore, not a “minor”, within the meaning of para 10.2 of Direction [41], when he began living in Australia.
37. Accordingly, this “primary consideration” is not applicable in the applicant’s case.
The length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity
38. Paragraph 10.3(1) of Direction [41] states:
“ 10.3 The length of time that a person has been ordinarily resident
(1)Reflecting the fact that the longer a period of residence in Australia the greater the likelihood of significant ties to the Australian community, more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character.
Note: For example, a period of more than 10 years of residence in Australia prior to a person engaging in criminal activity or activity which bears negatively on the person’s character would be an important consideration.”
39. It is common ground that the applicant has been ordinarily resident in Australia from 1 December 2006 and that the date on which he was first engaged in criminal activity (for which he was subsequently convicted and sentenced) was 5 January 2008.
40. Having regard to the fact that the applicant was ordinarily resident in Australia for only 13 months before he committed the relevant offences, this “primary consideration” does not assist the applicant’s case.
Relevant international obligations
41. Paragraph 10(1)(d) of Direction [41] refers to:
“ relevant international obligations, including but not limited to:
(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).”
International obligations imposed by the abovementioned Conventions are referred to in more detail in paras 10.4 – 10.4.3 of Direction [41].
42. The applicant submitted that, pursuant to the Convention on the Rights of the Child (“CROC”), the obligation to have regard to the best interests of his unborn child (to whom Ms Phung is expected to give birth in or about late May 2010) is a “primary consideration” in this case. The applicant did not submit that any obligation arises pursuant to the CROC in respect of his stepdaughter, given that he has ceased to have any contact with her; nor did he submit that any other international obligation is applicable in this case. The respondent submitted that there is no international obligation which is applicable in this case – in particular, the respondent submitted that no obligation in relation to the applicant’s unborn child arises pursuant to the CROC because the CROC is applicable only in the case of a living child who has been born. Accordingly, the respondent submitted that the best interests of the applicant’s unborn child is not a “primary consideration” within the meaning of para 10 of Direction [41] in this case.
43. The Tribunal has previously determined that the term “child”, within the meaning of the CROC and predecessors of Direction [41], refers to a living child who has been born and does not include an unborn child: see, for example, Re Ly and Minister for Immigration and Multicultural Affairs [2000] AATA 339; Re Morgan and Minister for Immigration and Multicultural Affairs [2000] AATA 675; Re Zefis and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 700; Re Fang and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1195.
44. A contrary view has been expressed by the Federal Magistrates Court of Australia in Griffiths v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 249 where McInnis FM said (at [104]):
“ I do not accept that the best interests of the children would not cover the best interests of a child yet to be born though conceived. It seems artificial to ignore the United Nations Convention and/or interpret it in such a narrow way that it would be confined to a ‘living child’.”
An appeal from McInnis FM’s decision was, however, allowed by the Full Court of the Federal Court of Australia: see Minister for Immigration and Multicultural and Indigenous Affairs v Griffiths [2004] FCAFC 22. Although the Full Court’s decision turned on grounds other than the abovementioned view expressed by McInnis FM, the Court commented briefly on that issue (at [32]):
“ 32 Although the respondent did not seek to support the second and fourth bases on which the Federal Magistrate’s decision turned in his oral submissions, we will deal with them briefly. Both of them rested on the proposition that the failure to deal with the interests of the unborn child under the heading that dealt specifically with the ‘Best Interests of the Children’ in the issues paper gave rise to jurisdictional error. But the short answer to this proposition is that this issue was dealt with elsewhere in the issues paper, in particular at paras [71] and [72] under the sub-heading dealing with the interests of the de facto spouse and there is, in any case, no reason to suppose that it was not considered by the Minister.”
It seems to the Tribunal that it is implicit in para [32] that the Full Court did not consider that the Minister was obliged to treat the best interests of the unborn child as a primary consideration; instead, the Court considered it appropriate that the interests of the pregnant de facto spouse be treated as a relevant consideration (other than a primary consideration).
45. In the present case the Tribunal does not regard itself as bound to follow the abovementioned view expressed by McInnis FM. Consistently with the approach adopted by the Tribunal in the decisions referred to in paragraph 43 above, and implicitly approved by the Full Federal Court in Griffiths (above), the Tribunal will not treat the best interests of the applicant’s and Ms Phung’s unborn child as a “primary consideration”, within the meaning of the CROC and para 10 of Direction [41], but will instead have regard to the interests of Ms Phung (including the fact that she is pregnant with the applicant’s child) as a relevant consideration, other than a “primary consideration”, within the meaning of para 11 of Direction [41].
46. Accordingly, the Tribunal accepts the respondent’s submission that there are no relevant international obligations in the applicant’s case and that this “primary consideration” is therefore not applicable in this case.
Other considerations
47. Paragraph 11 of Direction [41] states:
“11. Other considerations
Note: These are not primary considerations.
(1)In reaching a decision on whether to refuse or cancel a visa, other considerations, although not primary, may be relevant and, if so, must be considered.
(2)It is appropriate that these considerations, where relevant, must be taken into account but, generally, they should be given less weight than that given to primary considerations.
…”
Subparagraph (3) sets out (in paras (a) – (g)) an inclusive list of “other considerations”. The Tribunal will specify, and comment upon, each of those “other considerations” below.
(a) Family ties, the nature and extent of any relationships
48. The Tribunal accepts that the applicant has been in a genuine ongoing de facto relationship with Ms Phung (who is an Australian citizen) since June 2008, prior to which they had formed a close, mutually supportive friendship after meeting in their workplace in July 2007. The Tribunal accepts Ms Phung’s evidence that the applicant has provided ongoing emotional support and comfort to her, especially during her father’s long illness and since his death on 21 February 2010. The Tribunal also accepts that, by reason of the fact that Ms Phung is pregnant with the applicant’s child and is due to give birth in or about late May 2010, she will require ongoing support from the applicant up to, and following, the birth of their child and assistance from the applicant in raising their child. The Tribunal accepts Ms Phung’s evidence that, if the applicant were removed from Australia, she (for the reasons given in her evidence) would not accompany him, and that she (and the child after its birth) would remain in Australia, thereby resulting in the physical break-up of their family unit and the great emotional distress they would suffer by reason of that break-up. On the other hand, Ms Phung (as she acknowledged in her evidence) was aware, at the time she entered into a de facto relationship with the applicant, that the applicant was in “trouble with the police” and she must therefore be regarded as having then been aware that his character was a matter of concern. Whether she was also then fully aware of the possibility that he may be removed from Australia is, however, doubtful.
(b) The person’s age
49. The applicant is presently 37 years of age. The Tribunal does not regard the applicant’s age as a significant consideration in this matter.
(c) The person’s health
50. There is no evidence before the Tribunal that the applicant has any problems with his health or suffers from any physical or mental disability.
(d) Links to the country to which the person would be removed
51. The applicant was born, raised, educated and employed in Colombia and lived there until November 2006. His father and three brothers (to whom he remains close) live in Colombia and would provide him with strong familial support and a social network if he were removed to Colombia. In the Tribunal’s opinion the applicant would have no difficulty in resuming his membership of Colombian society were he to be removed to that country.
(e)Hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia
52. The Tribunal accepts that the removal of the applicant from Australia would be likely to cause him emotional distress and hardship primarily because of the likely physical separation from his partner, Ms Phung (an Australian citizen), and their child after its birth in or about late May 2010. Such hardship and distress would, however, be the ultimate product of his own criminal conduct in Australia and the Tribunal does not attach substantial weight to that consideration. Of far greater concern to the Tribunal is the great hardship that Ms Phung would be likely to suffer if the applicant were removed from Australia. The Tribunal regards the reasons why Ms Phung would, if faced with that circumstance, not accompany the applicant to, or subsequently join him in, Colombia (as stated in her evidence) as entirely understandable and, indeed, cogent. In that event Ms Phung would be left in the situation where she would have to give birth to, and raise, their child without the immediate emotional, physical and material support of the applicant, as well as continue to care for her elderly mother. Notwithstanding Ms Phung’s awareness of the applicant’s “trouble with the police” before she entered into a de facto relationship with him, the Tribunal regards the hardship likely to be experienced by Ms Phung if the applicant were removed from Australia as an important consideration in this matter.
(f) Level of education
53. The applicant is a highly educated person. He was educated to tertiary level in Colombia and, since his arrival in Australia, he has (according to his own evidence) completed a postgraduate degree course in accounting, although the relevant master’s degree has not yet been conferred on him. The applicant’s completion of that postgraduate course in Australia would no doubt enhance his capacity positively to contribute to the Australian community through employment if he were permitted to remain in Australia.
(g)Whether the person has been formally advised by the Department about conduct that brought the person within the character (visa refusal and cancellation) provisions of the Act
54. It is common ground that, prior to his commission of the relevant offences on 5 January 2008, the applicant had not been formally advised by an officer of the Department about conduct that brought, or would bring, him within the provisions of the Act relating to visa refusal or cancellation on character grounds.
Overall assessment of the primary considerations and the other relevant considerations
55. Having considered the primary considerations and the other relevant considerations in this case, the ultimate task of the Tribunal is to determine, on the basis of the appropriate weight to be given to each of those considerations having regard to Direction [41], whether or not those considerations, on balance, favour refusal of the applicant’s application for a visa.
56. As regards the primary considerations, the protection of the Australian community favours refusal of the applicant’s application for a visa but, in the Tribunal’s opinion, the weight which might otherwise have been attached to that primary consideration is substantially diminished in the applicant’s case by reason of the Tribunal’s assessment that, because of the matters referred to in paragraphs 26–33 above, the risk of his re-offending is very low. Accordingly, in the Tribunal’s opinion, although that primary consideration militates in favour of refusal of the applicant’s application for a visa, it does not so militate to a significant degree. None of the other three primary considerations referred to in para 10(1) of Direction [41] avails the applicant for the reasons mentioned in paragraphs 35–46 above and, accordingly, the Tribunal attaches no weight to any of those primary considerations in this case.
57. As regards the other (that is, non-primary) considerations referred to in paragraphs 48–54 above, in the Tribunal’s opinion none of those considerations militates in favour of refusal of the applicant’s application for a visa. On the other hand, in the Tribunal’s opinion the considerations referred to in paragraphs 48 and 52 above – especially the likely hardship to Ms Phung referred to in paragraph 52 – militate to a substantial degree against refusal of the applicant’s application for a visa.
58. Although, as stated in para 11(2) of Direction [41], such considerations “generally … should be given less weight than that given to primary considerations”, in the particular circumstances of the applicant’s case the only applicable primary consideration – namely, the protection of the Australian community – is, in the Tribunal’s assessment, outweighed by the other relevant considerations referred to in paragraphs 48 and 52 above.
Conclusion
59. The Tribunal concludes, therefore, that, having regard to the totality of the primary considerations and the other relevant considerations in this case, those considerations, on balance, do not favour refusal of the applicant’s application for a visa. Accordingly, the discretionary power to refuse to grant a visa to the applicant, pursuant to s 501(1) of the Act, should not be exercised in this case.
Decision
60. For the above reasons the Tribunal sets aside the decision under review and, in substitution therefor, decides that the discretion to refuse to grant a visa to the applicant, pursuant to s 501(1) of the Act, not be exercised in this case.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: [sgd E Jordan] .....................................................................................
Associate
Date of Hearing 12 March 2010
Date of Decision 23 March 2010
Counsel for the Applicant Mr P Katsambanis
Solicitor for the Applicant Katsambanis & Associates
Counsel for the Respondent Mr A Gerrard
Solicitor for the Respondent Australian Government Solicitor
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