SNXY and Minister for Immigration and Border Protection (Migration)

[2017] AATA 1745

SNXY and Minister for Immigration and Border Protection (Migration) [2017] AATA 1745 (18 September 2017)

Division:GENERAL DIVISION

File Number:           2017/3739

Re:SNXY

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:The Hon. Dennis Cowdroy OAM QC, Deputy President

Date:18 September 2017

Date of written reasons:        17 October 2017

Place:Sydney

The decision under review is affirmed.

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

The Hon. Dennis Cowdroy OAM QC, Deputy President

CATCHWORDS

MIGRATION – visa refusal – character test – risk that the applicant would engage in criminal conduct in Australia – risk that the Applicant would harass, molest, intimidate or stalk another person in Australia – protection of the Australian community – best interests of minor children – expectations of the Australian community – impact of visa refusal on family members – other considerations – decision affirmed

LEGISLATION

Migration Act 1958 (Cth) ss 499, 501

CASES

Godley v Minister for Immigration and Multicultural and Indigenous Affair (2004) 83 ALD 411

LQVM v Minister for Immigration and Border Protection [2017] AATA (9 January 2017)

Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238; (1999) 90 FCR 583

SECONDARY MATERIALS

Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

The Hon. Dennis Cowdroy OAM QC, Deputy President

17 October 2017

1. The applicant seeks review of a decision of the respondent contained in a notice of refusal of a Bridging E (Class WE) visa under sub-section 501(1) of the Migration Act 1958 (Cth) (the Act).

2. The applicant entered Australia on 2 April 2014 holding a Student (Temporary) (Class TU) Higher Education subclass 573 visa.  The visa was issued on 21 March 2014.  The applicant was born on 23 November 1994 and holds an Indian passport issued on 13 August 2012, which is still current.  The applicant, upon entry into Australia, commenced studied at a college for approximately two months.  Such studies then ceased, and thereafter the applicant has not engaged in any study.  The applicant failed to notify the Department of Immigration of the fact that he had ceased studying. 

3. At some stage shortly thereafter the applicant obtained work as an egg packer at a chicken farm at Kemps Creek near Sydney.  On 10 March 2015 the applicant married.  His wife had been previously married but that marriage had been dissolved.  There was one child of the first marriage of the wife, being a boy aged 12 years.  There are no children of the marriage between the applicant and his wife.  On 18 March 2015 the applicant made an application for a Partner (Temporary) subclass 820 visa, and Partner (Residence) subclass 801 visa.  Following their marriage the parties, that is the applicant and his wife, and the child of the wife by her first marriage, resided in a cottage on a property at Kemps Creek.

4. On 27 July 2016 the applicant was arrested and charged with certain offences which are referred to hereunder.  On 28 April 2016 an application for bail made at Liverpool Local Court of New South Wales was refused.  On 4 August 2016 the applicant was provided with notification of intention to cancel his visa.  On 12 August 2016 the applicant’s subclass visa 573 was cancelled following the notification provided on 4 August 2016.  The grounds of the cancellation of such visa were that the applicant was not enrolled in a registered course of study and had not been so since 22 November 2015.  Accordingly, the applicant did not meet the requirements of condition 820.2 of the visa.  On 10 August 2016 the applicant made submissions concerning his application for a Partner (Temporary) subclass 820 visa and Partner (Residence) subclass 801 visa.

5. The chronology thereafter may be described shortly as follows.  On 8 September 2016 there was a first court attendance concerning the charges raised against the applicant.  Bail was granted subject to conditions.  On 15 September 2016 there was an application made by the applicant for a Bridging E (Class WE) subclass 050 general visa.  On 23 September 2016 such application was acknowledged by the Department of Immigration and Border Protection.  The applicant was simultaneously advised that such a visa was issued whilst he was in criminal detention.  The applicant was also advised that if the visa ceased he would be an unlawful non-citizen and liable to detention and removal from Australia. 

6. On 30 September 2016 the applicant was released from custody but taken into detention at Villawood Immigration Detention Centre.  In December 2016 the applicant was removed to Christmas Island Immigration Detention Centre, where he remains.  In respect of the court proceedings involving the applicant, a second mention of the charges in court took place in February 2017.  Since the applicant was not then in Australia he arranged for his cousin to communicate with the lawyer involved.  On 23 March 2017 the charges laid against him were withdrawn and dismissed.  The Tribunal now turns to the detail involving these proceedings.

   CANCELLATION OF THE VISA

7. The applicant received the notification on 11 May 2017 that the visa held by him was liable to be cancelled. Such notification was contained in a notice of intention to consider refusal. The applicant sought review, and the review confirmed the minister’s decision. By letter dated 27 June 2017 entitled “Notice of Visa Refusal under Subsection 501(1) of the Migration Act 1958”, the applicant was notified as follows:

   I refer to the notice of intention to consider refusal (the notice) dated 11 May 2017 related to your application for a Bridging E (Class WE) visa.

8. Relevantly, the notice continues:

   You responded by email on 6 and 20 June 2017. After careful consideration of your response in the matters listed I the notice, a delegate of the Minister decided on 26 June 2017 to refuse to grant you a visa under subsection 501(1) of the Act.

9. The letter continued:

   Under subsection 501.1 of the Act, the Minister or a delegate of the Minister may refuse to grant a person a visa if the person does not satisfy the Minister or a delegate of the Minister that the person passes the character test. The particular ground of subsection 501(6) under which you did not satisfy a delegate of the Minister that you pass a character test are:

   sub-paragraph 501(6)(d):       In the event that the person were allowed to enter or remain in Australia, there is a risk that the person would:

   (i) engage in criminal conduct in Australia; or

   (ii) harass, molest, intimidate or stalk another person in Australia.

10. Such letter referred to the application made by the applicant for a combined Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa, and notified the applicant that those applications were refused. 

11. Pursuant to s 501(1) of the Act, the Minister or a delegate may refuse to grant a person a visa if the person does not satisfy the Minister or a delegate that the person passes the character test. As has been referred to in the letter provided to the applicant dated 27 June 2017, the grounds relied upon by the Minister in this instance are the provisions of s 501(6) of the Act. A statement of reasons was provided to the applicant. It refers to the following relevant matters.

    Character Concerns

    5On 18 April 2017 an Apprehended Domestic Violence Order, ADVO, was made at the Local Court of New South Wales at Campbelltown for the protection of [omitted], prohibiting or restricting the behaviour of [SNXY], the order remains in place until 18 April 2019. 

    6I have considered the charges levelled against [SNXY] by NSW police regarding three accounts of indecent assault person under 16 years of age.  I note that [SNXY] was held on remand.  I have further noted these charges were dismissed and withdrawn on 22 March 2017. 

    7I accept that [SNXY] has no criminal convictions. 

    Risk to the Australian Community

    8I am mindful of the principle expressed in the direction that Australia has a low tolerance for criminal conduct by visa applicants, and that the Australian community’s tolerance for any risk of future harm lessens as a seriousness of a potential harm increases.

    9I have considered whether [SNXY] poses a risk to the Australian community through engaging in similar conduct in the future by having regard to any mitigating or causal factors in his conduct, and giving consideration to the steps [SNXY] has undertaken to reform and address his behaviour.

    10I have considered Mr Michael Jones’ submission that [SNXY] “…should be found not to fail a character test for the reason specified in the NOICR…”, namely that an ADVO granted against [SNXY] and parenting orders that place [omitted] in the primary care of his father, [omitted], means that the risk of future conduct does not rise above ‘minimal’ or ‘remote’ as stipulated by the direction. 

    11On 18 April 2017 an Apprehended Domestic Violence Order was made at the Local Court of New South Wales at Campbelltown for the protection of [omitted], prohibiting or restricting the behaviour of [SNXY].  The order remains in place until 18 April 2019. 

    12I considered the submission of [SNXY’s] migration agent that the existence of the ADVO is a strong disincentive for [SNXY] to have any contact with [omitted].

    13[SNXY] is seeking to reside in the community while awaiting the outcome of his Partner visa application.  I have considered the specific purpose and limited duration of the Bridging E visa may reduce the likelihood of reoffending whilst in Australia. 

    14I have noted that the ADVO means that [SNXY] is unable to return to his previous residence at…, nor to return to his previous employment at the said address.

    15I am mindful that, whilst the charges were withdrawn and the ADVO was entered into without any admissions, the request and grant of the ADVO against [SNXY] indicates that he is likely to have engaged in behaviour that has resulted in his stepson requesting protection from him. 

    16I am mindful that the legislative scheme for the issuance of an ADVO against an individual is directed towards the protection of the community in a direct and immediate sense, rather than as a mechanism of deterrence.

12. The letter continues, namely, that the delegate considered the applicant presents an unacceptable risk to the Australian community.  The letter also considered other persons who would be affected by the decision, including his wife, who suffers medical and mental illness, and the difficulties which she would face living in India should the applicant’s visa be refused.  The decision maker accepted that the applicant’s wife will experience physical, economic, and emotional hardship if the visa is refused.  However, the conclusion, at paragraph 29, reads:

    29I concluded that [SNXY] represents a risk of harm to the Australian community which is unacceptable.  I could not be satisfied that the risk of [SNXY] reoffending was negligible. I have found that there are no sufficient countervailing considerations in this case to warrant the Australian community accepting any level of risk. 

    CHARGES LAID AGAINST THE APPLICANT

13. It is appropriate to turn to the charges which have been raised against the applicant.  On 27 July 2016 three charges were laid against the applicant.  The first was indecent assault on a person under 16 years of age, as was the second, and the third.  The statement of facts contained in the factsheet for the New South Wales police refer to the fact that the applicant worked as a farmhand on a chicken farm.  The accused lived on the property and did not pay rent.  The accused was noted to be present in Australia pursuant to the student visa, but that he was not studying, after ceasing his studies at the Ultimo TAFE in 2014. 

14. The facts surrounding each of the offences are as follows.  At the time of the offences the stepson of the applicant was 12 years of age.  He alleged that earlier in January 2016, when he returned home from his school holidays after an outing, he was sitting on a couch watching television when the applicant came and sat next to him.  The stepson’s mother was in the main bedroom.  The child said that the applicant placed a blanket over his head and began to kiss him on the lips.  He then attempted to place his hands down the front of the child’s pants.  The child pushed the applicant’s hands away.  At that stage the child’s mother entered the room and the activity ceased.

15. The second incident was on a day during the first school term of 2016, that is during the period 30 January to 30 April 2016.  At about 3:30pm the child and the accused were sitting on a couch watching television.  Again, the mother was asleep on a mattress situated next to the wall beside the lounge where the accused - the applicant - and the child were seated.  The child alleged that the applicant began kissing him and placed his hands down the front of the child’s pants and touched the child’s penis.  The child pushed the accused’s hands away when the mother woke up.  However, the applicant is alleged to have said, “come into my room”. 

16. The third offence occurred when the child walked into the bedroom of the applicant and his mother, and lay beside the applicant and his mother, who was sleeping soundly.  The victim - that is the child - disclosed the applicant made him touch his erect penis with his hands, “until he was done”.  The child disclosed that he had his head under the blankets and his face was near the penis of the applicant.  The child disclosed that the applicant ejaculated on his face.  The child made no report to the police.  However, it was noted that his conduct at school was different.  Finally, one of his friends, in discussion with the child, learnt of the incidents that had occurred.  Those incidents were recorded with the school and the school authorities contacted the police.  The police investigated, and, in particular, Sergeant Danks interviewed all persons concerned, including the applicant.

17. A comprehensive transcript of the interview was provided to the Tribunal.  Sergeant Danks gave evidence.  She said that she was surprised that when she first approached the applicant and told him why she was wishing to speak with him, he immediately referred to an incident on the couch.  Sergeant Danks considered it was most unusual that the applicant should have immediately referred to the location, when no mention had been made of it by anyone to the applicant.  The applicant in their statement denied the conduct as alleged, but he made statements which were somewhat equivocal.  He said, inter alia,

    I never touched him to touch my penis, something like that. Never.  

    Maybe, like, other person can take it wrong.  Every person have their own thinking.

18. He continued:  “Maybe he felt like that, but in my mind it’s never like that”.  When it was put to the applicant that he was trying to kiss the child, he said,

    No, it’s, I, I didn’t even know, don’t know.  Like, we are sleeping in there, and, but most of the time they’re, they’re sleeping opposite to me, like the couch is two - it’s not like a bed. 

19. It emerged that in fact, frequently, the three - that is the applicant, his wife, and the child - would sleep in the same bed.  However, some of the answers were inconsistent.  When the question was asked: “Have you ever slept, the three of you, in the night?” the applicant replied: “Oh, never in the night.  We never sleep in the night”.  However, subsequently another answer was given which cast doubt upon the statement he made.  The applicant denied that he ever asked the child to pull his penis, or that he ejaculated on his face.  However, there was a question asked by the Sergeant, “Have there been any times when your hand has accidentally touched his penis?”  Answer: 

    Actually, I…to, like, I, I, I don’t have a feel that time.  I have no feeling like now, how I can sit here - how can I explain to you?  M’mm, I never did things purposely, never.

20. He then answered,

    It can happen, like, inside with a person asleep or, ah, and if, like, I feel itchy, so I can go like that.

21. When he was asked whether there was anything further he wished to add, he said,

    No, I don’t, I don’t have, like, I did it.  I never did it like that, and if unfortunately, like, if I’m laying, he’s on the sofa, if my legs touch him or something like that, I never do it purposely.  Like, if two people are sleeping they usually, you know, they touch one another.

22. The Sergeant interviewed the child, who gave a very clear and graphic description of the events.  It emerged that relations between the applicant and the child were not good.  The child blamed the applicant for causing harm and being cruel to his rabbits. The applicant says that he put the rabbits into a laundry because his employer did not wish to have the rabbits, which were the pets of the child, in the house in which they were living.  The Sergeant also interviewed children who were the link by which this matter came to the notice of the authorities.  According to one of the pupils, the child informed her that his father - that is the applicant - had tried to rape him, and that it had happened “A couple of years ago, and last year, and this year”.

23. The pupil asked the child whether he was lying, to which the child stated, “I am being serious”.  The police also interviewed another pupil and she repeated essentially what had been informed to the other pupil.  It was one of those pupils who referred the matter to a teacher.  The teacher was also interviewed.  She stated that she had seen the child on a number of occasions during the year, and had provided him with food and clothing.  She had also helped the child and his mother with homework, and provided a laptop and connected his iPad to the school network.  She had noticed that the child appeared to be worried and it was then that she learnt of the incident involving the applicant.

24. The proceedings came to court and on 2 August 2016 an Apprehended Domestic Violence Order, ADVO, was issued against the applicant.  It was a provisional order enforced until 24 August 2016.  On 14 November 2016 an order was made in the Children’s Court of New South Wales at Parramatta.  The order was as follows:

    Pursuant to s.79(1)(a), parental responsibility of [omitted] to be allocated to the father [omitted] to the exclusion of the mother, [omitted], until he attains the age of 18 years. 

25. There were two mentions of the proceedings in the court that, significantly, on 22 March 2017, an order was made in the Local Court at Campbelltown which states that the charges in each case were withdrawn and dismissed.  However, on the following month, on 18 April 2017, a second ADVO was issued by Campbelltown Local Court for a period of two years.  It should be noted that this order was made after the charges had been withdrawn and dismissed, and after the applicant had left the jurisdiction.  When this matter came on for hearing, the position concerning the making of the orders and the dismissal of the charges was unclear.  The applicant’s evidence relied upon statutory declarations from his wife and from his former employer.

26. Further, both the applicant’s wife and his mother-in-law gave evidence.  Numerous references were provided, mainly from nationals, or former nationals, of the applicant’s country, testifying of the applicant’s good character.  The applicant also provided oral evidence by video link.  The applicant denied the conduct alleged against him and demanded to see evidence to support the charges.  The applicant agreed there were differences between him and his stepson, and that there was ill will generated because of the child’s desire to keep rabbits in the house.  The first day of the hearing was largely taken up by such evidence.

1. At the request of the Tribunal, Sergeant Danks gave evidence on the second day of the hearing, as did the child.  The Sergeant provided the explanation for the withdrawal of the charged and their dismissal.  She stated that the charges were withdrawn and dismissed only because it was believed that the applicant was being deported from Australia and would not be returning.  It was the Sergeant who requested the provisional ADVO to protect the child from further alleged conduct against him by the applicant.  Significantly, the Sergeant stated that, in the event that the applicant returned to the jurisdiction, fresh charges would be laid against him in respect of each of the three incidents. 

2. The question arose as to why the second ADVO was issued.  It was issued by consent, that is the cousin of the applicant apparently had instructions not to oppose the making of an ADVO on the basis that no admissions were made.  The second ADVO was required because the first provisional ADVO had expired and there was the perceived need to protect the child in the event that the applicant returned to Australia.  The applicant states that he had no knowledge of the second ADVO.  The child gave evidence.  All the evidence provided was listened to by the applicant, and the applicant was invited to formulate questions for submission to both the child and to Sergeant Danks, which he did.

3. The Tribunal was impressed by the testimony of the child.  It was made clear to him when he gave his evidence that the issues were serious.  Naturally, the child could not be cross-examination directly, but questions were put to him as directed by the applicant through the Tribunal.  The Tribunal considers, having heard his evidence, that he is a credible witness.  The applicant has made numerous submissions in writing, and also orally.  He points out that he has no police record in India, which is verified by documentary evidence.  He has made submissions that he is entitled to the presumption of innocence.  Such submission would be applicable in criminal proceedings. 

4. However, it should be pointed out immediately that the Minister’s decision does not rely upon the provisions of s 501(6)(a), which refers to a person having a substantial criminal record. Rather, the Minister’s decision is based upon sub-paragraph (d), that is that, in the event that the person were allowed to enter or remain in Australia,

   …there is a risk that the person would:

   (i)      engage in criminal conduct in Australia; or

   (ii)    harass, molest, intimidate, or stalk another person in Australia

   … 

   CONSIDERATION

5. Pursuant to s 501(2) of the Act, the Minister may cancel a visa if the Minister reasonably suspects the person does not pass the character test. It should be pointed out that, under s 501(6), detailed provision is contained for the formulation of the character test. Significantly, by s 501(11), it is provided as follows:

   For the purposes of the character test, conduct may amount to harassment or molestation of a person even though:

   (a)it does not involve violence or threatened violence to the person; or

   (b)(not relevant).

6. Pursuant to s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act with which, in accordance with s 499(2A) the person or body must comply. On 22 December 2014 the Minister issued Direction No. 65, Visa refusal and cancellation under s 501, and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65) which came into operation on 23 December 2014. Direction 65 provides guidance for decision makers when making decisions to refuse or cancel a visa under s 501 of the Act, including the exercise the discretion to decide whether a non-citizen should be permitted to enter or remain in Australia in circumstances where the person does not pass the character test.

7. Paragraph 6.2 of the direction sets out the principles underlying Direction 65 and para 7 sets out how the discretion is to be exercised.  In paragraph 6.1 of the direction the objectives are stated.  Sub-paragraph 6.1(2) thereof states:

   2Under sub-section 501(1) of the Act, any non-citizen may be refused a visa if the non-citizen does not satisfy the decision maker that they pass the character test. A non-citizen may have their visa cancelled under section 501(2) if the decision maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of a case.

8. The relevant provisions of Direction 65 are contained in Part B where the primary considerations, and other considerations, in respect of visa applicants are referred to. The primary considerations set out in para 11 are:

   (a)Protection of the Australian community from criminal or other serious conduct;

   (b)The best interests of minor children in Australia; and

   (c)Expectations of the Australian community.

   Protection of the Australian community

9. For the primary consideration of ‘protection of the Australian community’, as set out in para 11.1, the nature and seriousness of a non-citizen’s conduct to date, and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct, are to be considered.  In considering the nature and seriousness of the non-citizen’s conduct, the decision maker must have regard to the following elements as set out in para 11.1(1):

   (a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;

   (b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or official due to the positions they hold, or in the performance of their duties, are serious

   (c)…

10. In Annexure A to Direction 65, further detail is provided concerning the application of a character test. Under section 2 of Annexure A specific consideration is to be had to the risk of future conduct, as provided in para 6. This is relevant to the provisions of s 501(6)(d) of the Act and the primary consideration of protection of the Australian community. The particular provision under the para 6(1) of Annexure A states:

    a person does not pass a character test if in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would engage in any of the conduct specified in section 501(6)(d) of the Act.

11. Sub-paragraph 6(2) of Annexure A states the grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person allowed to enter or remain in Australia would engage in the conduct specified in s 501(6)(d) of the Act. In his submissions, the applicant has referred to a decision of the Tribunal in the matter of LQVM v Minister for Immigration and Border Protection [2017] AATA (9 January 2017).  In that decision an applicant for a protection visa had the decision of the Minister overturned. The applicant here is not seeking a protection visa.  However, the facts of that case are very different to the facts now before the Tribunal.  In that case the visa applicant had been convicted of an offence and, as the applicant says, there are no convictions recorded against him in this jurisdiction.  

12. The applicant says that he was unaware of the second ADVO.  That may be the case, but the cousin of the applicant was apparently given instructions to consent to such an order on the basis of no admissions. 

13. In all of the circumstances, the Tribunal, having accepted that the child is a witness of truth, is satisfied that the Minister was entitled to believe that there is, as has been stated already, more than a minimal or remote chance that the person - that is the applicant - if allowed to enter or remain in Australia, would engage in the conduct specified in s 501(6)(d), either with the child or other persons. The Tribunal takes into consideration the evidence of Sergeant Danks that if the applicant were to enter Australia again he would be immediately recharged with the offences. Whilst it is speculation, having seen the child give evidence and taking into account the evidence obtained by the police, the Tribunal considers there is a strong chance that the applicant could be convicted of those offences, but for the purpose of this application it is not necessary for such a determination to be made. All that needs to be satisfied is those matters which have been, and will be, referred to as being relevant to the Minister’s exercise of a discretion.

    The best interests of minor children

14. In particular, the best interests of minor children affected by the decision are a primary consideration under para 11.2 of Direction 65. Paragraph 11.2(4) sets out the factors a decision maker must consider when considering the best interests of minor children, where relevant. Whilst the charges laid against the applicant were withdrawn, the circumstances leading to the charges detailed in [13] – [24] of this decision were serious and would appear to continue to impact negatively the relationship between the applicant and his stepson. Relevantly, Sergeant Danks gave evidence at hearing that, should the applicant be granted a visa and return to the jurisdiction, fresh charges would be laid against him in respect of the allegations. Further, there is an ADVO in place protecting the child from further alleged conduct against him by the Applicant. The Applicant has been charged with offences of a serious nature against a minor. Whilst the charges have not been proved, the Tribunal has had the benefit of testimony. The Tribunal is satisfied that such testimony is sufficient to justify the minister’s concern of future harassment of the minor.

    Expectations of the Australian community

15. Under para 11.3, the third primary consideration of ‘expectations of the Australian community’ is provided, in sub-para 11.3(1), as follows:

    The Australian community expects non-citizens to obey Australian laws while in Australia.  Where a non-citizen has breached, or where there is an unacceptable risk they will breach this trust, or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person.  Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa.  Decision makers should have due regard to the government’s views in this respect. 

16. The Australian community, as is referred to in Direction 65, has a low tolerance of conduct adverse to the interest of children.

    Other considerations

17. Paragraph 12 of Direction 65 provides the other considerations that a decision maker may take into account where relevant. The consideration of the impact of visa refusal on other family members is a matter for consideration under para 12.2. There is evidence that the applicant’s wife suffers poor health because she is suffering from depression, and she is a survivor of cancer.  She states that she relies on the applicant for moral and financial support for herself and for her elderly retired parents who originated from Hong Kong.  The applicant’s wife came to Australia at age 11 with her parents, and they now reside in Sydney. 

18. The applicant’s wife had previously been married to a person of Moroccan background, and she has three sons born of that relationship.  They were all born in Morocco.  The youngest two are currently in the care of their grandparents in Morocco, and the child who was the subject of these proceedings now before the Tribunal is now living with his father.  There is a medical certificate provided concerning the applicant’s wife, which suggests that the wife has suffered from domestic violence and from depression for many years.  The domestic violence appears to relate to the previous marriage, not to the current marriage.

19. The wife states that she has not seen her husband - that is the applicant - for almost a year.  The wife’s mother testified and stated that they rely upon the applicant for support, which appears to be both moral and financial.  In these proceedings the exercise of discretion is governed by Direction 65.  That is made plain by the decision of Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238; (1999) 90 FCR 583 at 591 per Katz, J. The existence of the applicant’s marriage is a factor for consideration. However, the Tribunal notes that the marriage has been of short duration: there are no children of that marriage and the wife has not seen the applicant for 12 months. Whilst the fact of the marriage is an important consideration, it does not outweigh the interests of the child, nor the expectations of the Australian community.

20. The Tribunal is satisfied that the Minister was entitled to take into consideration all the above circumstances in reaching his decision.  It is apparent from sub-para 2(5)(4) of Annexure A that a person need not necessarily have a recent criminal conviction in order to fail a character test.  The conduct in question must be sufficient to indicate a lack of enduring moral quality that outweighs any consideration of more recent good behaviour.  The term ‘good character’ was defined in Godley v Minister for Immigration and Multicultural and Indigenous Affair (2004) 83 ALD 411 at 426 per Lee, J.

21. Having considered those matters, the Tribunal considers that the correct and preferable decision is that as set out in the Minister’s letter of 27 June 2017.  Accordingly, the decision is affirmed.

I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy OAM QC, Deputy President

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

Associate

Dated: 17 October 2017

Dates of hearing:	5, 6 and 18 September 2017
Applicant:	Via videolink
Solicitors for the Respondent:	Mr K Eskerie, Sparke Helmore