Sekhon and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)
[2023] AATA 2916
•13 September 2023
Sekhon and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 2916 (13 September 2023)
Division:GENERAL DIVISION
File Number: 2023/4887
Re: Gurmukh Singh Sekhon
APPLICANT
AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT
DECISION
Tribunal: Senior Member A. Nikolic AM CSC
Date: 13 September 2023
Place:Melbourne
The Tribunal sets aside the reviewable decision and, in substitution, decides not to refuse the Applicant’s visa under s 501(1) of the Act.
........................[sgd]................................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
MIGRATION – Visa refusal – citizen of India – dependent Applicant on wife’s Employer Nomination Scheme subclass 186 visa – request to join Applicant’s wife as a party to proceeding – ss 30(1A) and 31 of Administrative Appeals Tribunal Act 1975 (Cth) considered – joinder application declined – does Applicant fail character test under s 501(6)(d)(i) of the Migration Act – conviction for indecent assault in April 2013 – failure to disclose offending in visa applications and Incoming Passenger Card – does Applicant constitute more than minimal or remote chance of engaging in further criminal conduct if allowed to remain in Australia – expert evidence considered – isolated offending – Applicant has lived law-abiding life in Australia since 2012 – Applicant’s circumstances different from a decade ago – character references from friends and family – recidivism risk is minimal or remote – Applicant does not fail character test under s 501(6)(d)(i) of the Migration Act – reviewable decision set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Crimes Act 1958 (Vic)
Migration Act 1958 (Cth)CASES
AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 175
Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65
Apache Energy Pty Ltd and Chief Executive Officer of the National offshore Petroleum Safety and Environmental Management Authority, Re (2012) 132 ALD 559
Beezley v Repatriation Commission (2015) 150 ALD 11
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Falzon v Minister for Immigration and Border Protection (2019) 93 ALJR 629
FAI Insurances Ltd v Winneke (1982) 151 CLR 342
Hughes v The Queen [2017] HCA 20
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Kioa v West (1985) 159 CLR 550
Maxwell v R (1996) 184 CLR 501
Melson v Deputy President Forrest (1996) 42 ALD 261
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326
Minister for Immigration, Citizenship, and Multicultural Affairs v CPJ16 [2019] FCA 2033
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration and Ethic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Nathanson v Minister for Home Affairs (2022) 96 ALJR 737
Negri v Secretary, Department of Social Services [2016] FCA 879
Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 1) (1980) 3 ALD 74
Re Davey and Australian electoral Commission (2013) 137 ALD 184
Re Micky Farid Khan and Minister for Immigration and Ethnic Affairs [1981) AATA 127
Re Scott and Secretary, Department of Social Security (1996) 42 ALD 738
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Twist v Randwick Municipal Council (1976) 136 CLR 106SECONDARY MATERIALS
Direction No. 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth), 10 [48] -11 [50]
Dennis Pearce, Administrative Appeals Tribunal (5th ed, LexisNexis Butterworths, 2020)REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
13 September 2023
INTRODUCTION
The Applicant has asked the Tribunal to review the Respondent’s refusal of his visa application under s 501(1) of the Migration Act 1958 (Cth) (“the Act”). The hearing was held in person on 11 and 12 September 2023 at the Tribunal’s Melbourne Registry. The Applicant was represented by Mr Matthew Kenneally of counsel, instructed by Carina Ford Lawyers. The Respondent was represented by Mr Adam Cunynghame, a solicitor from Sparke Helmore Lawyers.
For the following reasons the Tribunal sets aside the reviewable decision and, in substitution, decides not to refuse the Applicant’s visa under s 501(1) of the Act.
LEGISLATIVE FRAMEWORK
Section 501(1) of the Act gives the Minister or their delegate the power to refuse to grant a visa, when an applicant is unable to satisfy the Minister that they pass the character test. The Tribunal’s jurisdiction to review such decisions is provided for at s 500(1)(b) of the Act.
The term ‘character test’ is defined at section 501(6) of the Act. A person does not pass it if any one of the eleven sets of circumstances detailed in that section applies to them. The Minister’s delegate has refused the Applicant’s visa application under s 501(6)(d)(i) of the Act, which states that a person does not pass the character test if:
(d)in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i)engage in criminal conduct in Australia; or
…
BACKGROUND
The Applicant is a 34-year-old citizen of India.[1] His parents and other family members still live there. After spending his formative years in India until the age of 19, the Applicant arrived in Australia in late 2008 to study. He undertook vocational courses in commercial cookery, hospitality, and business, but has worked predominantly as a taxi driver. The Applicant has returned to India several times, most recently on 25 September 2017.
[1] Exhibit R1, 251.
The Applicant is married to an Indian citizen[2] who the Tribunal will refer to as Ms KB. Ms KB has also studied and worked in Australia under temporary visas. She and the Applicant have two children under six years of age, both of whom were born in Australia.[3] The Applicant and two children are dependants on Ms KB’s application for an Employer Nomination Scheme (subclass 186) visa.
[2] Ibid 47; 49; 249-251.
[3] Ibid 248; 294.
The following chronology is relevant to this application:
(a)On 22 October 2012, the Applicant indecently assaulted a female victim during a social occasion at a friend’s house. He was subsequently charged.[4]
[4] Ibid 33.
(b)On 8 March 2013, the Applicant married Ms KB in India.[5] Their marriage was registered in Australia on 15 May 2013.[6]
[5] Ibid 253.
[6] Ibid 110.
(c)In April 2013, the Applicant was convicted of a single count of Indecent Assault.[7] He received a two-year Community Corrections Order (“CCO”), was ordered to complete a sex-offender program, and 150 hours of community work.[8] He successfully completed these obligations.[9]
[7] Ibid 31.
[8] Ibid 35.
[9] Exhibit R1, 36; Exhibit R2, 21-23.
(d)In visa applications dated 8 July 2013 and 10 March 2015, the Applicant failed to disclose his 2013 conviction.[10]
(e)In November 2013, the Applicant was reprimanded by the Taxi Services Commission (“TSC”) and warned that disciplinary action may follow any further offences or failure to comply with his driver accreditation conditions.[11]
(f)In an Incoming Passenger Card (“IPC”) upon returning to Australia on 5 March 2016, the Applicant failed to disclose his 2013 conviction.[12]
(g)On 22 July 2015, the Applicant was granted a UC subclass 457 Temporary Work (Skilled) visa as a dependant of Ms KB.
(h)On 25 September 2017, the Applicant disclosed in an IPC that he has a conviction in Australia.
(i)On 9 November 2017, the Respondent advised the Applicant that consideration was being given to cancelling his visa.
(j)On 4 December 2017, the Applicant’s 457 visa was cancelled, and he was taken into detention.[13] He was released in January 2018 after the cancellation decision was set aside by another Division of this Tribunal.[14]
(k)On 5 April 2023, a delegate of the Minister advised the Applicant that consideration was being given to refusing his visa application.[15] In addition to the Applicant’s 2013 conviction, the delegate referred to the Applicant’s failure to disclose his offending in two visa applications and an IPC.
(l)On 29 June 2023, after considering the Applicant’s representations,[16] a delegate of the Minister refused the visa application.[17] The Applicant was notified of this on 3 July 2023.[18] The refusal decision was based on s 501(6)(d)(i) of the Act, in that if allowed to remain in Australia, there is a risk he will engage in criminal conduct.
(m)On 6 July 2023, the Applicant asked the Tribunal to review the refusal decision.[19]
[10] Exhibit R1, 125; 140-141.
[11] Ibid 130-133.
[12] Ibid 252.
[13] Ibid 152-161.
[14] Ibid 216.
[15] Ibid 37.
[16] Ibid 44-117.
[17] Ibid 248; 295.
[18] Ibid 8.
[19] Ibid 1.
The Tribunal must decide this application within 84 days of the Applicant being notified of the reviewable decision.[20] This falls on 25 September 2023, which is seven working days after the scheduled end of the hearing.
[20] Section 500(6L) of the Act.
APPLICATION FOR MS KB TO BE MADE A PARTY TO THE PROCEEDING
At 08:18 pm on 6 September 2023, two working days before the commencement of the hearing, the Applicant’s lawyers sent an email to the Tribunal applying for Ms KB to be joined as a party to the proceeding (“joinder application”). The reason for the joinder application was stated as follows:
‘I have applied for an ENS 186 Visa. If the decision is affirmed, my visa application must be refused. My Bridging Visa A would then cease within 35 days. My lawyer will file evidence of this with the Tribunal.’
Written submissions from Mr Kenneally dated 8 September 2023 stated:
‘The applicant notes that [MS KB] would not have a right to seek judicial review of the decision in the Federal Court if she were not a party (s 486C(1) – (3)). [MS KB] would have such a right if joined. [MS KB] may nevertheless have a right to seek judicial review in the High Court pursuant to s 75(v) of the Constitution’.
The Respondent submitted that the Tribunal should refuse the joinder application, including because a decision is yet to be made on Ms KB’s ENS visa application. The Respondent accepts that Ms KB’s interests may be affected by an adverse decision, but submitted these ‘are not new’, she ‘was dilatory in applying to be a party’, and her interests can be adequately addressed by current parties to the proceeding.[21]
[21] Citing Melson v Deputy President Forrest (1996) 42 ALD 261; Re Scott and Secretary, Department of Social Security (1996) 42 ALD 738; Re Davey and Australian electoral Commission (2013) 137 ALD 184; and Apache Energy Pty Ltd and Chief Executive Officer of the National offshore Petroleum Safety and Environmental Management Authority, Re (2012) 132 ALD 559, [18].
Applicable law on joinder application
The Tribunal declined the joinder application as a preliminary issue at the commencement of the hearing on 11 September 2023 and undertook to provide written reasons. These now follow and in providing them, the Tribunal has applied the reasoning of Justice Bromberg in Negri[22] about the extent to which it can elaborate on oral reasons:
‘...As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).’
[22] Negri v Secretary, Department of Social Services [2016] FCA 879, [27].
Section 27 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) provides for who can apply to have an administrative decision reviewed. The Tribunal also has a discretion under ss 30(1A) and 31 of the AAT Act to join a person to a proceeding whose interests are affected. This requires satisfaction that the party intending to be joined is a ‘person whose interests are affected by the proceeding’. If satisfied of this, the Tribunal then considers whether to exercise the discretion under s 30(1A) of the AAT Act.
The Tribunal has considered the two High Court authorities relied upon by the Applicant. One is a worker’s compensation case[23] and the other an appeal against a deportation order against two non-citizens and their minor child.[24] Both cases are invoked in support of the submission that the ‘significance of the impact on a person’s interests in administrative law is that person has a right to be heard’.[25] The following extract from Winneke is relied on:
‘The fundamental rule is that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power…The application of the rules is not limited to cases where the exercise of the power affects rights in the strict sense. It extends to the exercise of a power which affects an interest or a privilege’. (Emphasis added in Applicant’s submissions)
[23] FAI Insurances Ltd v Winneke (1982) 151 CLR 342 (“Winneke”).
[24] Kioa v West (1985) 159 CLR 550 (“Kioa”).
[25] Citing Winneke as 360 (Mason J) and Kioa at 563 (Gibbs CJ); 583-584 (Mason J); and 611-612 (Brennan J),
In making its own enquiries, the Tribunal noted a dearth of case law where an applicant’s spouse is joined to a visa refusal / cancellation proceeding. Emeritus Professor Dennis Pearce, AO refers to a 1981 case in which an applicant’s wife was joined to a proceeding (Khan).[26] This case is distinguishable, however, in that the Applicant’s former wife in Khan was joined as a supporter of the deportation order. In exercising the discretion to make Mrs Khan a party to the proceeding, J.D Davies sitting as President of the Tribunal, decided that her interests were sufficiently enlivened by fears about personal safety and the safety of her children. The application to join Ms KB is founded on the basis that she may experience adverse visa consequences if Mr Sekhon’s visa refusal is not set aside, and her future judicial review rights would be enhanced by joinder.
[26] Pearce, Dennis, Administrative Appeals Tribunal (5th ed, LexisNexis Butterworths, 2020), 7.5 [111], citing Re Micky Farid Khan and Minister for Immigration and Ethnic Affairs [1981) AATA 127 (21 October 1981); (1981) 3 ALN N142 (Davies J, President) (“Khan”).
Decision on joinder application
The central premise of the joinder application is uncontroversial, namely that those affected by an administrative decision have a right to be heard.[27] That said other statutory imperatives must be considered, including the scope and purpose of the Tribunal’s objects at s 2A of the AAT Act.
[27] Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 [30] (Kiefel, Bell, Gageler, Keane, and Gordon JJ).
Ms KB’s primary interest is for a life together with the Applicant and their children in Australia. This includes advancing her career aspirations, educating their children, pursuing permanent residency and/or eventual citizenship, and owning their own home one day. She is concerned about the consequences of an adverse decision for her own visa status and that of their children. Given the hearing was yet to commence at the time the joinder application was made, however, any impact on Ms KB’s interests is speculative at best. It turns on the irresoluble branches and sequels of future events, including what Ms KB may do if an adverse decision eventuates. For example, Mr Kenneally referred in written submissions to other alternatives Ms KB may have to separately address her interests:
If the [Employer Nomination Scheme (ENS) (Subclass 186) Visa] is refused [Ms KB] could proceed to seek review under Part 5 of the Act. That review of the adverse decision must be affirmed. [Ms KB] could request the Minister to intervene and substitute a more favourable decision pursuant to s 351. However, the power under s 351 is non-compellable, and no evidence suggests the Minister would exercise the power in these circumstances. [Ms KB] would only be eligible for ongoing Bridging Visas after she became an unlawful non-citizen, whilst awaiting the outcome of any Ministerial intervention request and that would only permit permission to work if the Ministerial intervention request was submitted when she held a valid visa that permitted work’.
In terms of Ms KB’s judicial review rights being enhanced by joinder, this is not a mandatory relevant consideration under the Direction. Irrespective of the decision in this matter, s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) provides a judicial review pathway for someone ‘aggrieved by a decision to which this Act applies’.
The only application properly before the Tribunal in a jurisdictional sense is the Applicant’s. There is also no evidence that any future effect on Ms KB’s interests cannot be adequately addressed by current parties. The Applicant always intended to call Ms KB as a witness. Her evidence was eventually heard, and submissions about her interests made.
Notwithstanding the Applicant’s submissions about no additional cost in joining Ms KB to the proceeding, the Tribunal is unconvinced. The Respondent referred to additional costs already incurred in responding to the joinder application. Moreover, the Respondent has not prepared its case on the basis that Ms KB will be joined to the proceeding. It would be procedurally unfair to expect the Respondent to adjust its case preparations with such little notice. There is insufficient time in a procedural sense for lodgement of additional materials, including a revised Statement of Facts, Issues, and Contentions from the Respondent (“RSFIC”), and a response from the Applicant.
Perhaps the most compelling factor weighing against the joinder application is the statutorily constrained timeframe to hear and decide Mr Sekhon’s application, within seven working days after the scheduled end of the hearing. Prior to the hearing commencing and at the time the Tribunal was considering the joinder application, the Applicant had advised an intention to call 11 witnesses. The Tribunal was concerned about the potential for undue delay if a new applicant was joined to the proceeding on the first hearing day. As Justice Davies, sitting as President of this Tribunal has previously noted, the Tribunal’s discretion to join a party is necessarily: ‘…limited by the function which the Tribunal performs and by its duty to provide a fair hearing and to deal with the matter as expeditiously as the subject matter of the review permits’.[28]
[28] Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 1) (1980) 3 ALD 74, 80 (Davies J).
While accepting that Ms KB’s interests may be affected by an adverse decision, the Tribunal decided these could be adequately considered by current parties to the proceeding under the Direction. The decision to decline the joinder application was also informed by competing imperatives that include a statutorily constrained timeframe, and the procedural fairness implications of joining a new applicant with little notice.
ISSUE TO BE DETERMINED
Justice Kiefel, as her Honour then was, stated in Shi[29] that the Tribunal’s review function ‘should be identified with some precision, for it marks the boundaries of the review.’ Justice Rares has more recently held that an applicant’s failure ‘to satisfy the delegate about the criterion in s 501(6)(d)(i),’ meant that this ‘ground confined the issues on…review.’[30] The sole integer underlying the visa refusal decision currently before the Tribunal is s 501(6)(d)(i) of the Act. The Tribunal must decide whether the Applicant fails the character test under this section of the Act. If not, then the reviewable decision is set aside because the impetus for cancellation is not enlivened. If the Applicant does fail the character test, then the Tribunal must make a supervening determination whether the discretion under s 501(1) of the Act to refuse the visa should be exercised.
[29] Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [133].
[30] Minister for Immigration, Citizenship, and Multicultural Affairs v CPJ16 [2019] FCA 2033, [68]. See also Falzon v Minister for Immigration and Border Protection (2019) 93 ALJR 629, [51], in which the High Court stated that ‘The AAT must address the same question the primary decision-maker was required to address’ (Bell, Gageler, Gordon and Edelman JJ; 633 [14]-[15] (Kiefel CJ, Keane and Nettle JJ).
CONSIDERATION: DOES THE APPLICANT FAIL THE CHARACTER TEST?
In Akpata,[31] the nexus between the character test and Parliament’s intent was explained:
‘The definition of a person passing the character test in s 501(6) shows that Parliament intended that persons who have been convicted of relatively serious crime; associate with criminals; have a history including an immediate history of criminal conduct or general conduct indicating bad character; are a significant risk of engaging in criminal conduct or undesirable conduct (s 501(6)(d)), should not be permitted to travel to or remain in Australia. Shortly put, persons who have committed or are likely to commit criminal or other like conduct should not be permitted to travel to or remain in Australia. Because the purpose is to exclude those persons, the matters that are relevant to…the Minister’s discretion will include any fact or circumstance which would suggest that a person of otherwise bad character (as it is defined in the Act) should be allowed to travel to or remain in Australia.’
[31] Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65, [105] (Lander J (Carr and Sundberg JJ concurring).]
Since Akpata, reference to the word ‘significant’ is no longer used in conjunction with assessing risk under s 501(6)(d)(i) of the Act. The grounds are enlivened if there is evidence of more than a minimal or remote chance that the person, if allowed to remain in Australia, would engage in criminal conduct.[32] This is a future-focussed test in which it is insufficient to find the Applicant has engaged in criminal or other objectionable conduct in the past. There must be a risk they will engage in criminal conduct ‘in the future.’[33]
[32] Direction, Annex A, Section 2 cl 6(2); Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10 [83].
[33] Ibid, cl 6(3).
Justice Nettle has observed that evidence of a past offence ‘is not, of itself, significantly probative’ of the committing of another offence:
‘Without more, it establishes only that the accused is the kind of person who has committed an offence. To make evidence of previous offending or misconduct significantly probative of a subsequent offence there needs to be something more about the nature of the offences or the circumstances of the offending in each case…’[34]
[34] Hughes v The Queen [2017] HCA 20, [154].
In Guo,[35] the majority observed:
‘The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but…proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur…
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because [this] is likely to be the most reliable guide as to what will happen…It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events…’[35] Minister for Immigration and Ethic Affairs v Guo (1997) 191 CLR 559, [56]-[57].
Justice Kerr considered the statutory construction of s 501(6)(d)(i) in Sabharwal,[36] with reference to extrinsic material from the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth):
‘Paragraph 46 of Sch 1 of the EM states that the “intention” of the provision was that “the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.”
Thus a derisorily small possibility would and could not satisfy the statutory test. However something that is “likely” to occur plainly would be within its terms.’
[36] Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10, [83]-[84] (“Sabharwal”).
The Full Court explained, in the subsequent appeal against Sabharwal,[37] that s 501(6)(d)(i):
‘…requires an evaluative judgment by the decision-maker…as to whether the decision-maker is satisfied…there is such “a risk”. Then, if the decision-maker is so satisfied, the decision-maker has a discretion to refuse to grant a visa to the person.’
[37] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [2].
DIRECTION 99
In making its decision, the Tribunal must comply with Ministerial Direction 99, which has been made under s 499(1) of the Act (“the Direction”).[38] The Direction commenced on 3 March 2023 and guides the Tribunal’s consideration of the ‘the correct or preferable decision’,[39] based on the material currently before it.[40]
[38] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ); Nathanson, 2 [4].
[39] Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48 [4]-[6] ((Dowsett, Kenny and Mortimer JJ); Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (Bowen CJ and Deane J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [96]–[98] (Hayne and Heydon JJ); Nathanson v Minister for Home Affairs (2022) 96 ALJR 737 (“Nathanson”).
[40] AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 175, [25] (Wigney, Abraham and Rofe JJ); Beezley v Repatriation Commission (2015) 150 ALD 11, [68].
The following principles at cl 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(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)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision-maker must have regard to clauses 8 and 9, where relevant to the decision. Clause 8 of the Direction identifies the following primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The strength, nature, and duration of ties to Australia;
(d)The best interests of minor children in Australia;
(e)Expectations of the Australian community.
Clause 9 of the Direction sets out a non-exhaustive list of other considerations:
(a)Legal consequences of the decision;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Impact on Australian business interests.
Clause 7(1) provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources’.
Clause 7(2) states that ‘Primary considerations should generally be given greater weight than the other considerations’. This does not preclude the Tribunal, however, from giving an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[41]
[41] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations’. The weighing process, however, is left to individual decision-makers.[42]
EVIDENCE
[42] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, [57].
Documentary evidence
The following materials were taken into evidence at the hearing:
(a)G-Documents numbering 298 pages;[43]
[43] Exhibit R1.
(b)Supplementary G-documents numbering 350 pages;[44]
(c)Further Supplementary G-documents numbering 65 pages;[45]
(d)Applicant’s nine-page and four-page Statutory Declarations, both dated 7 September 2023;[46]
(e)Four-page Statutory Declaration of Ms KB dated 22 August 2023 and a further three-page Statutory Declaration dated 7 September 2023;[47]
(f)32-page report of consultant forensic clinical psychologist Dr Michael R. Davis dated 6 September 2023, with accompanying letter of instruction from Carina Ford Lawyers dated 30 August 2023, and Dr Davis statement of qualifications and curriculum vitae;[48]
(g)Nine Statutory Declarations or statements from relatives and friends of the Applicant dated between 21 August and 6 September 2023, which were unchallenged by the Respondent;[49]
(h)One-page letter from the President, Australian Sikh Support dated 22 August 2023;[50]
(i)One-page letter from the Secretary, Sri Guru Singh Sabha dated 14 August 2023;[51]
(j)Medical letter dated 10 July 2023 from Ms KB’s general practitioner;[52] and
(k)Unsigned and undated statement of Richard James Gunn, legal practitioner at Carina Ford Lawyers.[53]
[44] Exhibit R2.
[45] Exhibit R3.
[46] Exhibit A1.
[47] Exhibit A2.
[48] Exhibit A3.
[49] Exhibits A4 to A12.
[50] Exhibit A13.
[51] Exhibit A14.
[52] Exhibit A15.
[53] Exhibit A16.
Witnesses
Only the Applicant, Ms KB, and Dr Davis gave oral evidence at the hearing.
Applicant’s evidence
The Applicant adopted Exhibit A1 as true and correct. His oral evidence is summarised as follows:
(a)He wants to remain in Australia with Ms KB and their children, who are his only close family.[54] The Applicant has stated they will be unable to permanently relocate to India to be with him in the event of an adverse decision. This was later contradicted by Ms KB’s evidence who said she loves the Applicant, cannot live without him, and will return to India with him in the event of an adverse decision.
(b)The Applicant’s evidence about his offending is that he pleaded guilty after receiving advice from legal representatives that this would result in the charges being ‘rolled up’ and a non-custodial sentence given, whereas a contested hearing risked imprisonment. The Applicant said the victim removed a blanket covering him, causing him to become angry. He claims that he pushed the victim and may have touched her breast and shoulder when doing so but denied rubbing her vagina or kissing her neck. He said he was unaware the victim was pregnant and regrets pushing her. He recalled that a day or so after this incident police called him, and he voluntarily attended an interview. The Applicant claimed to have been unaware the charge he pleaded guilty to included more than putting his hand up the victim’s dress and touching her breasts until reading the charge sheet after the conclusion of his criminal proceeding.
(c)When asked by Mr Cunynghame about references in evidence to him expressing a willingness to pay the victim to withdraw the charges, the Applicant responded: ‘I was never willing to pay’. He claimed to have been contacted by a friend who offered to act as a ‘mediator’ and a sum of $7000 or $8000 was mentioned, but the Applicant said he never agreed to make any payment.
(d)The Applicant said he regrets pleading guilty to the charge because of the problems his conviction caused for his ‘immigration history and visa’.
(e)The Applicant said the main thing he learned through attendance on a sex offender’s program was ‘never to touch anyone in anger or without consent’. He also learned about the importance of avoiding conflict, acting with patience, and thinking before he acts.
(f)The Applicant was asked about his failure to disclose his offending in two visa applications. He claimed one was filled in by Ms KB’s friend and the other by a migration agent, which he signed without properly checking. He described his failure to disclose his offending in an IPC on 5 March 2016 as a ‘mistake’. When challenged that the repeat nature of his omissions made it hard to accept these were inadvertent or mistakes, the Applicant insisted he ‘didn’t read the forms properly’ and had not intended to make false claims. When asked about references in evidence to failing to tell the TSC about his offending,[55] the Applicant insisted he told the TSC about this on the day of his conviction in April 2013, in a telephone phone call that went for 5 – 7 minutes. He could not recall who he spoke to. It was accepted there is no independent evidence to corroborate the Applicant’s claim.
(g)The Applicant said he had not been in trouble with the police or other authorities since his 2013 conviction. His life had also changed considerably since then, including marriage to Ms KB and the birth of their two children. Despite financial difficulties arising from the consequences of his conviction, he and Ms KB had worked hard towards a better future. In response to a question about the consequences of any further crime, the Applicant said this would end his aspiration for a life in Australia with Ms KB and their children.
(h)The Applicant said he will live with his parents if returned to India. He believes he could only earn the equivalent of about AUD$200 to $300 per month if returned.
[54] Ibid 83 [15].
[55] Ibid 130.
Evidence of Ms KB
Ms KB adopted Exhibit A2 as true and correct. She is aware of the specific conduct the Applicant was charged with and said he pleaded guilty to pushing the victim and touching her on the breast, after the victim pulled a blanket off him. Ms KB said the Applicant became angry because of this but was unaware the victim was five months’ pregnant. Ms KB does not believe the Applicant touched the victim elsewhere and said the Applicant pleaded guilty despite not wanting to, because of the financial costs of a contested hearing and the prospect of imprisonment: ‘We both decided he’d plead guilty – we don’t want to fight because we can’t afford the expenses’.
Ms KB said the Applicant is a ‘loving, caring person and a very good husband and father.’ She stated: ‘I just love him – I don’t want to leave him’. If the Applicant is returned to India Ms KB will accompany him. This will be hard to do, however, because their eldest child has just started school. She is confident the Applicant won’t reoffend because he ‘feels guilty’ about the continuing difficulties his 2013 conviction has caused.
If the Applicant is allowed to remain in Australia, Ms KB said she wants to establish her own business. The Applicant drives a taxi, which gives him flexible work hours and enables him to assist her with the children. She believes the Applicant will undertake further study and they also have a ‘really big dream’ to build a house one day.
Evidence of Dr Davis
The Tribunal has considered the 32-page report of consultant forensic clinical psychologist Dr Michael R. Davis dated 6 September 2023, which he adopted at the commencement of his oral evidence. Dr Davis conducted a 170-minute interview with the Applicant on 31 August 2023 with the assistance of an interpreter in the Punjabi language. Dr Davis also undertook a 15-minute telephone interview with Ms KB on 2 September 2023. In addition to his clinical opinion, Dr Davis undertook testing of the Applicant using several diagnostic tools as follows:
(a)Psychological testing using the Personality Assessment Inventory: Short Form (PAI-SF) and Brief Psychiatric Rating Scale (JSAT Adaptation of Expanded Version 4.0;
(b)Risk and needs assessment based on the:
(i)Hare Psychopathy Checklist: Screening Version (PCL:SV);
(ii)Level of Service / Risk, Need, Responsivity (LS/RNR);
(iii)Static-99 / Static-99R; and
(iv)Risk for Sexual Violence Protocol – Version 2 (RSVP-V2).
Dr Davis’ report is comprehensive and discusses both positive and negative aspects of the Applicant’s presentation. This includes the Applicant’s continuing denial of any sexual motivation for his offending, despite pleading guilty to Indecent assault. Despite this, Dr Davis noted that the Applicant ‘exhibited some understanding of the sequelae of sexual offending for victims and was able to identify that his victim would have been affected by the behaviours in his minimised and non-sexual version of events’.
Dr Davis invoked some caution and caveats given the Applicant’s ‘unusual responses’ on the PAI-SF. He said the Applicant’s responses reflect a ‘moderate degree of positive distortion’, suggesting he tried to portray himself ‘as relatively free of the common shortcomings to which most individuals will admit’.
In terms of the actuarial instruments used to assess recidivism risk, Dr Davis stated:
(a)The Applicant’s score on the PCL-SV:
‘…was in the lower end of the low range… Analysis of the individual components of the instrument indicated that Mr Sekhon had very low scores on both the personality-based items in part one and the behavioural features in part two. Both were considerably lower than the average for offender populations’…The results of the PCL:SV indicated that Mr. Sekhon is not psychopathic. The overall low score on the PCL:SV does not suggest an elevated risk for reoffending of any kind. Indeed, his score on part two, which assesses antisocial behaviour, was very low.’
(b)The Applicant’s score on the LS/RNR:
‘…was in the “very low” range of risk and need. Indeed, he had a remarkably low number of risk factors and none of the areas were considered to be particularly problematic (i.e., a high or very high need) or even of medium need. Indeed, seven of the areas were in the very low range (criminal history, education/employment, family/marital, leisure/recreation, companions, alcohol/drug problem, and antisocial pattern). All seven were considered areas of strength. The remaining area of need was in the low range (pro-criminal attitude/orientation).
Mr. Sekhon’s total score on the LS/RNR was considerably lower than the average for offenders both in prison and the community. Indeed, his score was remarkably low. Accordingly, he would appear to pose a very low risk for general offending behaviour (i.e., considerably lower than that of the average general offender). Moreover, the LS/RNR indicates that there are no particular areas that would constitute treatment and management targets to further reduce his very low risk for recidivism.’
(c)The Applicant’s score on the Static 99 / Static 99R actuarial instrument, which is a ‘measure of long-term risk potential’ was of ‘little utility’ in the Applicant’s case because several of the risk factors he was assessed under ‘no longer exist’. Moreover, the recidivism estimates under the Static 99 instruments are ‘group estimates based upon reconvictions’, whereas the Applicant had only been convicted of a single offence. Noting this context, the Applicant’s score of four placed him ‘in the moderate-high risk’ category, where ‘scores of six and greater are indicative of the high-risk category’. In relation to the specific circumstances of the Applicant’s case, Dr Davis stated:
‘As noted above, the results of the Static-99 do not take into consideration the fact that two of the four identified risk factors have changed considerably over the course of the last almost 11 years. Indeed, Mr. Sekhon is no longer under the age of 25 years and has been living with his wife for 10 years. Moreover, there has been no further sexual offending since he committed the Indecent Assault offence in October 2012. Lengthy periods in the community without further offending are a powerful protective factor for sexual recidivism. Indeed, the Static-99 manual provides revised recidivism estimates for offenders in different score ranges after two, four, six, eight, and 10 years in the community offence-free. For those with scores of four or five, after 10 years in the community, the recidivism rates drop to 6.8 percent over the next five years. This is, of course, considerably lower than the base rate for reoffending (which was 18 percent over five years) and is comparable to the rate for those with scores of zero or one in the low risk category. Similarly, research using the Static-99R indicates that for every year in the community offence-free the group recidivism rates drop by 12 percent. In fact, the leading publication on the protective effect of time free in the community concluded that “after 10 to 15 years, most individuals with a history of sexual offenses were no more likely to commit a new sexual offense than individuals with a criminal history that did not include sexual offenses.” Accordingly, the changes in Mr. Sekhon’s life over the past decade, and the fact that he has been in the community for almost 11 years without any further offending, strongly suggest that he now poses a low risk for sexual recidivism, even though he was deemed to pose a somewhat elevated risk in 2012’.
(d)In relation to the Applicant’s score on the RSVP-V2, Dr Davis stated:
‘The results of the RSVP-V2 indicated that Mr. Sekhon has very few risk factors for sexual recidivism. Coupled with the lengthy period of time offence-free in the community, and the seemingly positive and pro-social lifestyle that he has developed over the past decade, it is my opinion that Mr. Sekhon currently poses a low risk for sexual recidivism.
It is extremely difficult to provide an opinion regarding the most likely scenario for any future sexual offending. Indeed, the behavioural features in Mr. Sekhon’s prior offending in 2012 seemed to reflect an immature, inadequate, and sexually inexperienced individual who attempted to obtain intimacy from a female without consent. Mr. Sekhon has since been married for a decade and is very unlikely to find himself in such a position again. In fact, during our assessment interview he described a satisfying sexual relationship with his wife. In essence, he is no longer the inadequate young man that committed the 2012 offence and Mr. Sekhon’s low risk for sexual recidivism indicates that there is no “most likely” scenario for future sexual offending.
(e)In terms of the Applicant’s persistent denial of conduct he pleaded guilty to, Dr Davis stated:
‘…despite pleading guilty to the charge of Indecent Assault, Mr. Sekhon has consistently denied any of the sexual aspects of this offence (although he has consistently admitted to pushing the victim and yelling at her). However, it must be stressed that denial and minimisation is not a risk factor for sexual recidivism (although it can be an impediment to some forms of treatment). The scholarly literature indicates that when all studies are pooled together in the form of a meta-analysis…denial is unrelated to recidivism. However, this is because of variability between studies. Some research has found that denial is a risk factor while other research has found that it is actually protective. One persuasive hypothesis that may account for this finding posits that denial is a risk factor for those committed to deviant or criminal lifestyles and protective for those that demonstrate positive behavioural change in other areas of their life. While one could argue that the latter applies to Mr. Sekhon, I have nonetheless taken a conservative approach and not viewed his denial as either elevating or reducing his risk.
Dr Davis concluded his assessment of the Applicant’s recidivism risk and prospects for rehabilitation at paragraphs 105-108 as follows:
‘…Coupled with the lengthy period of time offence-free in the community, and the seemingly positive and pro-social lifestyle that he has developed over the past decade, it is my opinion that Mr. Sekhon currently poses a low risk for general offending or sexual recidivism (i.e., considerably lower than that of the average general and sexual offender respectively)’.
It is my opinion that no treatment or further supports are necessary or even advised to reduce Mr. Sekhon’s risk for either general or sexual offending. Indeed, the risk for both forms of offending behaviour is low and there is a dearth of risk factors that could be addressed if treatment were to be considered. In fact, any attempts at further offence-specific treatment are contra-indicated, and if attempted, may paradoxically increase Mr. Sekhon’s risk.
No protective measures are necessary or advised. Mr. Sekhon has an unusually low number of risk factors and has lived a pro-social life for almost 11 years without a hint of sexually deviant behaviour or pronounced antisociality.
As repeatedly noted above, Mr. Sekhon has a near dearth of risk factors for both general offending and sexual recidivism. He has not offended for almost 11 years and has a good work ethic and a supportive family and social circle. His lifestyle and sexual experiences have changed dramatically during this time and he is no longer the immature, inadequate, and sexually inexperienced individual that offended in 2012. Accordingly, it is my opinion that Mr. Sekhon is already rehabilitated and living a pro-social lifestyle.
In his oral evidence Dr Davis confirmed the assessments in his written report and referred to his expertise in behavioural analysis, which included consulting with and teaching ‘police in three continents’ about violence and sexual violence. In addition to spending almost three hours assessing the Applicant, Dr Davis said he also spoke to Ms KB by telephone because whenever the offending has a sexual dimension, he considers it valuable to get a perspective about an Applicant’s ‘sexual life’ as relevant to forming an opinion about risk. Other aspects of Dr Davis’ oral evidence are summarised as follows:
(a)The Applicant has no major mental illness or personality disorder. His fluctuating symptoms of anxiety and low mood are linked to the current proceeding and Dr Davis said he would be ‘more concerned if he didn’t present like that’.
(b)Psychopathy is a powerful factor when assessing recidivism risk and the Applicant had returned a ‘remarkably low score’ on the psychopathy checklist.
(c)Dr Davis applied several risk assessment tools because this is a preferred and validated approach in his profession, in preference to clinical judgement alone. He said these actuarial tools ‘assist a modicum of accuracy’.
(d)Although the Static-99 instruments measured risk factors at the time of the Applicant’s offending in 2012, they were nevertheless valuable in establishing a ‘good baseline estimate of past protective factors’.
(e)The LSI-R is a valuable ‘gold standard for looking at antisocial behaviour’ and any unmet rehabilitative needs.
(f)Dr Davis said he is one of the authors of the RSVP-V2, which considers 23 factors over five broad dimensions and enables a ‘structured clinical opinion regarding risk’. The Applicant ‘had almost no risk factors’, with the only one being ‘denial’, which the substantial weight of contemporary metanalysis shows is unrelated to recidivism.[56] Dr Davis was unable to determine the reason for the Applicant’s denial and said this was indicative of his insight into the 2012 offending being ‘imperfect’, but this had been accommodated in the risk assessment. Dr Davis opined that one possible reason for the Applicant’s continuing denial is that he ‘very much wants to distance himself from the person who committed that offence in 2012’.
(g)Dr Davis said denial can be a risk factor for those committed to an antisocial life, but this was not the case in the Applicant’s circumstances. This includes because of the prosocial changes he has made in the last decade, such as: no further offending or other antisociality; stable romantic relationship with Ms KB; consistent employment; and a wide circle of prosocial friends in his ethnic and faith community. There was no evidence of other factors that may raise concerns such as ongoing infidelity or intimate partner violence. Instead, the evidence reflects a stable and ‘very happy relationship’ between the Applicant and Ms KB. Dr Davis said that a stable intimate relationship over a decade is a ‘powerful protective factor that can’t be underestimated as relevant to risk’.
(h)Dr Davis said he tried to hypothesise the ‘most likely scenario’ in which the Applicant may reoffend but was unable to do so. He said in 2012 the Applicant was an immature, sexually inexperienced individual, who attempted to obtain intimacy from a female without consent. Given the positive changes he had made, and an absence of further offending, this conduct is ‘unlikely to reoccur’.
(i)In terms of rehabilitation, Dr Davis said the Applicant received a ‘positive treatment report’ from the Specialised Offender Assessment & Treatment Program, and ‘no current treatment is required…He doesn’t need a lot of assistance and never did…no treatment plans are necessary to contain his risk’. When asked by Mr Cunynghame if there was any relationship between recidivism risk and a person having little interest in treatment, Dr Davis said this is ‘unrelated to recidivism’. He said it was of more concern if the person performed poorly during treatment or did not complete it, but this was not the case here. Dr Davis said trying to force people into treatment who did not require it was ‘contraindicated’ and can heighten recidivism risk.
(j)Dr Davis said there is ‘no behavioural evidence’ that the Applicant’s offending in 2012 arose from stress or a failure to cope’. The Applicant’s circumstances are instead a ‘textbook example of an inadequate man with no sexual experience’.
(k)When asked by Mr Cunynghame what factors justified the Applicant being assessed as low risk rather than ‘no risk’, Dr Davis responded: ‘Low risk is as low as we go. He’s in the lowest category of risk and has very few risk factors’.
[56] Citing Hanson, R. K., & Morton-Bourgon, K. E. (2009). The accuracy of recidivism risk assessments for sexual offenders: A metaanalysis of 118 prediction studies. Psychological Assessment, 21, 1-21
FINDINGS: DOES THE APPLICANT FAIL THE CHARACTER TEST?
It is uncontroversial that when a law confers a power enabling the rights or interests of an applicant to be defeated, applicable statutes and common law principles of natural justice and procedural fairness regulate that power.[57] The basis on which an applicant’s character is called into question must be considered, and an opportunity afforded to adduce evidence of good character. This can include statements from relatives, friends, evidence of volunteering, and other records. Eight statements from relatives and friends are relied upon by the Applicant, whose authors were not called as witnesses.[58] These statements were unchallenged by the Respondent and variously describe the Applicant as family-oriented, thoughtful, hard-working, giving, and helpful. References to his offending variously refer to it as isolated and out of character. The Tribunal has also considered other materials relating to the Applicant’s volunteering and engagement with his ethnic and faith community,[59] which again reflect upon him in positive terms.
[57] Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5-6;Twist v Randwick Municipal Council (1976) 136 CLR 106, 109-10 (Barwick CJ); Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, 258-9 (French CJ, Gummow, Hayne, Crennan, and Kiefel JJ).
[58] Exhibits A4-A12.
[59] Exhibits 13-14.
The Applicant spent his formative years in India but almost all his adult life in Australia. He has been consistently employed. There is nothing to suggest the Applicant has been other than law-abiding in India.[60] There is also no evidence he was other than compliant during several weeks spent in immigration detention after his visa was cancelled in December 2017, or that he has been non-compliant with visa conditions since arriving in Australia.
[60] Exhibit R1, 32.
The Applicant was convicted of a single count of Indecent assault more than a decade ago.[61] Sexual crimes are viewed very serious regardless of the sentence imposed.[62] That said, the Applicant was given a non-custodial penalty in the form of a two-year CCO and 150 hours of unpaid community work. He was not placed on the Sex Offender’s Register. The punishment he received is at the lower end of sanctions for an offence carrying a maximum penalty of ten years imprisonment. The Applicant completed the CCO in early 2015[63] and has been law-abiding since.
[61] Under the now repealed s 39 of the Crimes Act 1958 (Vic), which was replaced in 2015 by s 40.
[62] The Direction, cl 8.1.1(1)(a)(i).
[63] Exhibit R1, 36.
In terms of ‘other conduct’, the Applicant:
(a)Failed to disclose his 2013 conviction in visa applications dated 8 July 2013 and 10 March 2015,[64] but disclosed this in other visa applications dated 22 July 2015, 2018, and in documents since.
(b)Failed to notify the TSC of charges against him in 2012, which led to a reprimand and warning that disciplinary action may follow any further offences or failure to comply with his driver accreditation conditions.[65]
(c)Failed to disclose his conviction in an IPC dated 5 March 2016,[66] which he claims was inadvertent.[67] The Tribunal notes he did disclose his conviction in an IPC following his most recent return to Australia in September 2017.[68]
[64] Ibid 125; 140-141.
[65] Ibid 130-133.
[66] Ibid 252.
[67] Ibid 65 [13]; 84 [6]-[7].
[68] Ibid 281.
There are several negative factors weighing against the Applicant’s character. These include the following:
(a)Continuing denial of criminal conduct he pleaded guilty to. This is not accepted. The Applicant’s guilty plea constitutes admission to and acceptance of all elements of the offence he was convicted of.[69] The conviction is conclusive and the Tribunal is not permitted to impugn it.[70]
(b)The Tribunal does not accept the Applicant’s uncorroborated assertion that he informed the TSC about his conviction in April 2013 and prefers the TSC’s November 2013 Notice of Decision, which states:
‘Finally I expressed further concern that you failed to notify the TSC of your charge and subsequent finding of guilt. Your failure to disclose the aforementioned matters to the TSC, as required in the driver accreditation conditions, raised doubts about your ability to provide a commercial passenger service in an honest manner in accordance with the public care objective’.[71]
(c)The Tribunal does not accept the Applicant’s failure to disclose his conviction in signed documents to the Department between 2013 and 2016 was inadvertent, or a misunderstanding, or mistake.[72] It occurred more than once and it is implausible that something so prominent in the memory of someone with no previous interaction with the criminal justice system, would have been inadvertently omitted on multiple occasions. The questions seeking to elicit this information were also clear and unambiguous. The Applicant has provided false or misleading information in an official context. That said, there is no evidence he has engaged in similar conduct during the last seven years and has disclosed his offending in other documents.
[69] Maxwell v R (1996) 184 CLR 501, [19].
[70] Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354, 358 (Fisher, Davies, and Lockhart JJ); Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, 244–245 (Branson, Lindgren and Emmett JJ); HZCP v Minister for Immigration and Border Protection [2018] FCA 1803, [102] (Bromberg J).
[71] Exhibit R1, 130.
[72] Ibid 82, [10]-[12].
There are also several positive factors emerging from the evidence. The Applicant has lived a law-abiding life in Australia during the last ten years, which is reflective of being able to learn from past mistakes rather than repeat them. The Tribunal accepts Dr Davis’ evidence that the Applicant’s circumstances differ markedly from those in 2012. He has since married, fathered two children, lives in stable accommodation with Ms KB, has remained consistently employed, and enjoys considerable support from family, friends, and his ethnic community.
The Tribunal accepts Dr Davis’ evidence that the Applicant constitutes a low risk of committing a further sexual crime. Because of the intertwined nature of the Applicant’s and Ms KB’s visa circumstances, the Tribunal also accepts the Applicant understands the adverse consequences that any further offending would bring. This is because of significant adverse effects already experienced, including the 2017 visa cancellation, a period in immigration detention, and current visa refusal. These experiences are a protective factor that further ameliorate the Applicant’s already low recidivism risk.
The Tribunal finds, on balance, that there is a minimal or remote risk the Applicant will engage in further criminal conduct if allowed to remain in Australia. This is a case where the adverse character implications of a serious but isolated offence more than a decade ago, have been overcome by a lengthy period of law-abiding behaviour. This is so notwithstanding some unsatisfactory aspects of the Applicant’s evidence.
DECISION
The Tribunal is satisfied the Applicant does not fail the character test by reason of s 501(6)(d)(i) of the Act. The impetus for visa refusal under s 501(1) is therefore not enlivened and it is unnecessary for the Tribunal to consider whether the discretion under s 501(1) of the Act should be exercised.
The Tribunal sets aside the reviewable decision and, in substitution, decides not to refuse the Applicant’s visa under s 501(1) of the Act.
I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC
…………[sgd]……………………….
AssociateDated: 13 September 2023
Date of hearing: 11 and 12 September 2023 Advocate for the Applicant: Mr Mathew Kenneally Solicitors for the Applicant Carina Ford Lawyers Advocate for the Respondent: Mr Adam Cunynghame Solicitors for the Respondent: Sparke Helmore Lawyers
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