TBNM and Minister for Home Affairs (Migration)
[2019] AATA 850
•7 May 2019
TBNM and Minister for Home Affairs (Migration) [2019] AATA 850 (7 May 2019)
Division:GENERAL DIVISION
File Number: 2019/0934
Re:TBNM
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:7 May 2019
Place:Melbourne
The Tribunal affirms the decision of 7 February 2019 not to revoke the mandatory cancellation of the Applicant’s visa.
................[sgd]........................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – mandatory cancellation of a visa – consideration of discretion exercisable under s 501 of Migration Act – Ministerial Direction No. 79 – primary considerations – sexual offending against minor – other considerations – decision not to revoke the mandatory cancellation of the visa affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 33A, 35
Migration Act 1958 (Cth), ss 499, 501, 501CA
Migration Regulations 1994 (Cth), reg 2.92
Sex Offenders Registration Act 2004 (Vic)Cases
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Jagroop and Minister for Immigration and Border Protection, Re [2015] AATA 571
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954).
Direction No. 75 – Migration Act 1958 – Direction under section 499 – Refusal of Protection Visas relying on Section 36(1C) and section 36(2C)(b). Direction made on 6 September 2017, commenced 7 September 2017
Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA. Direction made on 20 December 2018, commenced 28 February 2019REASONS FOR DECISION
Senior Member D. J. Morris
7 May 2019
On 6 March 2019 the Tribunal made an order under section 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) suppressing the identity of the Applicant in these proceedings. He will be referred to by the anonym ‘TBNM’.
TBNM is 29 years of age and is a citizen of a country in Western Africa. TBNM first arrived in Australia in December 2012, having met his Australian citizen partner (subsequently wife), called in these reasons ‘TU’, in Malaysia, where he was then studying. Their son was born in May 2013 in Australia. They married in July 2013. The marital relationship ended in February 2016.
TU sponsored TBNM to apply for a Prospective Spouse (Subclass 300) visa, which was issued. TBNM subsequently applied for both a Class UK Subclass 820 Partner (Temporary) visa and a Class BS Subclass 801 Partner (Permanent) visa. He was granted the temporary visa and it is this visa that was cancelled on 22 February 2017 under section 501(3A) of the Migration Act 1958 (Cth) (the Act) as a result of TBNM having a substantial criminal record and being sentenced to serve a term of imprisonment of more than 12 months.
On 22 March 2017 TBNM made initial representations seeking that the mandatory visa cancellation decision be revoked. A delegate of the Minister for Home Affairs (the Minister) decided not to revoke the mandatory cancellation on 7 February 2019. TBNM has now brought that decision to this Tribunal for review.
The hearing was held on 29 and 30 April 2019. The Applicant represented himself, made submissions and was cross-examined by Mr David Brown, of the Australian Government Solicitor, representing the Minister. The Applicant’s estranged wife, TU, was given leave under section 33A(1) of the AAT Act to give evidence by telephone as she was overseas. She did so and was questioned by TBNM and Mr Brown.
The Minister tendered two volumes of papers (described as G Documents (GD) and Supplementary G Documents (SGD) in these reasons). The Minister also submitted a Statement of Facts, Issues and Contentions. Other documents were also taken into evidence and are listed in the Appendix at the end of these reasons.
Legislative framework
Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of TBNM’s visa if he made representations within the relevant time period, provided for in the Migration Regulations 1994 (Cth) (28 days in accordance with reg. 2.52) and the decision-maker determines that the Applicant passes the ‘character test’, or, as provided for under section 501CA(4)(b), there is another reason why the mandatory cancellation decision should be revoked. The Minister did not contest that TBNM had made representations within the prescribed period.
Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, under section 501(6)(a) of the Act, the person has a substantial criminal record as defined by section 501(7). Relevantly, section 501(7) states:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; …
In addition, section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of section 501(6)(e) of the Act relating to sexually based offences involving a child.
Section 501(6) of the Act states that for the purposes of that section, a person does not pass the character test if, inter alia:
(e)a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child; or
(ii)found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; …
The Tribunal had before it a National Police Certificate dated 31 August 2016 (GD, p 15) (the certificate). The certificate states that on 15 April 2016 the Bendigo Magistrates Court convicted TBNM of the offences of ‘Indecent assault’ and ‘Harass witness,’ and imposed a Community Correction Order for 12 months, effective from 15 April 2016, to perform 80 hours of unpaid community work. The certificate further states that on
2 August 2016 at the Melbourne County Court, TBNM was convicted of the offence of ‘Sexual penetration of a child under 16 years,’ for which he received 2 years’ imprisonment. It is evident from other documents before the Tribunal (GD, p 16) that there is an error in the certificate and TBNM actually appeared before the County Court at Bendigo, but otherwise there was no dispute between the parties about the veracity of the certificate records in terms of the three convictions.In terms of the sexual penetration offence, the sentencing judge imposed a 2 year prison term and fixed a minimum period of imprisonment of 12 months. On the facts, the Tribunal finds that the Applicant fails the character test on the basis of the convictions made against him on 15 April 2016 and 2 August 2016, under both sections 501(3A)(a)(i) and 501(3A)(a)(ii) of the Act.
Section 501CA relevantly provides that:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
Having found that TBNM fails the character test, the sole issue before the Tribunal is whether there is another reason why the original decision should be revoked. In Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337, North ACJ stated, at [38]:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked…
The Ministerial Direction
Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act. The delegate who refused to revoke the cancellation of TBNM’s visa on 7 February 2019 consulted Direction No. 65, made under section 499. On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs (who is jointly authorised with the Minister for Home Affairs to administer the Act) made a fresh direction under section 499, namely Direction No. 79.
Direction No. 79 (the Direction) commenced on 28 February 2019 and (at section 3) revokes Direction No. 65 from that date. The correct Direction for the Tribunal to consider is Direction No. 79 (see Deputy President Forgie in ReJagroop and Minister for Immigration and Border Protection [2015] AATA 571, at [59], upheld by the Full Federal Court in Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461.)
The Tribunal must, under section 499(2A) of the Act, comply with the Direction in considering this matter. Paragraph 6.1 of the Direction states, in part:
6.1Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Relevantly, the Direction includes the following principles at paragraph 6.3:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
In deciding whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in
Part C; which is divided into ‘primary considerations’ and ‘other considerations.’ The primary considerations in Part C are set out in paragraph 13(2) of the Direction. They are: ‘Protection of the Australian community from criminal or other serious conduct;’ ‘The best interests of minor children in Australia;’ and ‘Expectations of the Australian community.’
Other considerations set out in paragraph 14(1) of the Direction are: ‘International
non-refoulement obligations;’ ‘Strength, nature and duration of ties;’ ‘Impact on Australian business interests;’ ‘Impact on victims;’ and ‘Extent of impediments if removed.’ The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and 8(5) of the Direction). The Tribunal considered each of the primary considerations and, as relevant, the other considerations.Evidence of TBNM
TBNM told the Tribunal he was born in 1989 into a large family. He is the middle child of five, and he also has seven step-siblings. His parents are now retired. He said his upbringing was ‘alright’. He finished year 12 at his local high school, doing well at school and was in the top ten per cent of students. He was good at sport, boxing at representative level, enjoying martial arts and soccer.
In 2008 he went to Cyprus. He told the Tribunal he was effectively ‘running’ from the influence of his father who wanted him to continue to study, and there was some evidence of periodic physical violence towards TBNM from his father. He said his father was more traditional and a strict Muslim, praying five times a day. TBNM wanted to play soccer and would hide his sports clothes so his father wouldn’t know he was going to play, but he sometimes missed prayer times and his father realised he was playing truant to engage in sport.
TBNM said he worked as a handyman in Cyprus. A cousin gave him funds to undertake an English language course there (his native language being French). He was in Cyprus for five months. He then went directly to Malaysia. He told the Tribunal his mother suggested he might find it cheaper to study there and his country had a diplomatic mission in Kuala Lumpur, which reassured his mother. He said that his parents paid for him to study; his father sold some land to help pay for tertiary tuition for him and for his eldest brother.
TBNM attended an international college in Malaysia. He first did a foundation course and then was able to convert it into a bachelor degree in business marketing, which he successfully completed in 2011. To support himself while studying, he also worked in housekeeping for a major hotel.
TBNM said he met TU through social media. TU told him she was coming to Malaysia with her parents on a holiday, which they did at the end of 2010. They commenced a relationship in 2011 but TBNM said he returned to his home country for about ten months because his mother was unwell. When she recovered TBNM returned to Malaysia and TU visited him, again, there in 2011.
When TU found she was pregnant, TBNM decided to come to Australia. He said they planned to start a family but not quite that early; the pregnancy was a surprise. After he arrived in Australia he lived with TU’s parents at a town near Bendigo. TNBM said within six months he obtained employment with a processing factory in Bendigo. After a year in a processing role, TBNM was promoted to a computer-based position. The Tribunal had before it (GD, p 65) a testimonial from the company attesting to TBNM’s
full-time employment and that he acted in accordance with their policies of respect, quality and integrity.
TBNM confirmed that his son was born in May 2013 and two months later he and TU married. He said that, two weeks after their marriage, TU and her parents travelled interstate for around a week to attend a family event. TBNM remained at home. He said he had previously met a girl (Victim 1) at a nightclub and they had kept in contact by text messages. Victim 1 asked TBNM to give her a lift to Bendigo. He picked her up and took her back to his house before he went to a nightclub. This is when the first offence occurred. They sat on a couch and had some alcohol. TBNM then told her to perform oral sex on him. TBNM said she did not respond. He said he then held the back of her head. He agreed, in answer to a direct question from the Tribunal, that he forced her to perform the sex act.
TBNM said that Victim 1 told police she had told him she was aged 14. TBNM said she did not tell him she was 14, but he thought she was ‘16 or 17’. Mr Brown, noting these events were only a fortnight after he had married, asked what precipitated his behaviour. TBNM said ‘things were going on in my life. My mother was sick. I had a new son. There were family issues. I found it hard to talk to my partner, but I accept this is not an excuse.’
TBNM then drove Victim 1 to Bendigo. He said they had little further contact, although she subsequently sent him a text message and he called her two days later to ask about money for him giving her a lift. He was asked whether he had contact with her younger sister (aged 11), which he denied. The Tribunal had before it (SGD, p 369) screenshots of message exchanges between Victim 1’s younger sister and another person with TBNM’s surname. TBNM told the Tribunal that ‘someone was impersonating me. It is not the first time my Facebook has been hacked.’ He said that he believed it was Victim 1 who had written these messages to implicate him, because they had had a dispute over payment for him driving her into Bendigo on the night of the offending.
TBNM said around the end of 2013 he moved out of the family home he was sharing with TU, their son and her parents, and into a unit in Bendigo. He said it was closer to his work and they needed to sort out some issues in their relationship. TBNM told the Tribunal he did not tell TU about the incident that had occurred while she was interstate. He said he and TU were effectively separated from September 2013 but that they still had occasional contact, including TU staying overnight with him at his unit. TBNM said he travelled back to visit his son every weekend, staying at a local hotel.
TBNM said that his son has a speech slowness difficulty which led to a lot of medical appointments and that his son had trouble communicating with other children when he started preschool. In answer to a question from the Tribunal, TBNM said that his son is otherwise healthy physically and his speech is slowly improving. TBNM provided evidence to the hearing of correspondence from the National Disability Insurance Agency (Exhibit A2) in relation to specialised speech therapy assistance for his son.
In relation to the second offence, which occurred in September 2014, TBNM said that he had previously had an intimate relationship with a 16 year old girl (Victim 2) for around a month. He had known her for approximately four to five months. Victim 2 was about to travel and asked him to mind her cat. She visited him to discuss the cat-minding arrangements. TBNM said, during this visit, he touched her, but she told him she now had a new boyfriend. TBNM then exposed his genitals to her and attempted to touch her intimately. He told the Tribunal ‘she had to say stop two or three times, I thought she wasn’t serious, playing hard to get.’ He said that he has since learned, having undertaken courses while in custody, that when someone says stop, it means stop.
Mr Brown asked TBNM if he accepted there were similar factors in each incident, in regard to him forcing himself on both girls. TBNM agreed. Mr Brown asked TBNM why the Tribunal should believe that he has changed, given he repeated similar sort of offending. TBNM said he has participated in men’s groups which helped him to rebuild his life and taught him temper management. He said the fact that his name has been placed on the sex offender register was humiliating and that one day his son will know this, which he was ashamed about. He told the Tribunal that he had arranged charity martial arts and boxing events and had channelled funds from them to the White Ribbon Foundation, to support programmes to prevent violence against women (GD, p 73).
TBNM was asked when he started to realise that his conduct to the two young women was completely unacceptable and he responded that he started to think ‘what have I done’ just before he was charged. He admitted that he initially denied the assaults because he ‘wasn’t thinking straight, and didn’t realise how serious it was.’ He said that, later, when he had consulted with a lawyer, the lawyer asked him if he had done the acts and when he admitted them, the lawyer recommended he plead guilty. That is what occurred.
In terms of the third offence, harassing a witness, which occurred in September 2014, TBNM said that he had done some research and realised that his offending would possibly mean that his visa would be cancelled. Armed with this knowledge, he went on Facebook and sent a message to the second complainant, asking her ‘why are you doing this to me, I didn’t rape you.’ TBNM said Victim 2 showed the message to the police and they charged him. He said he subsequently pleaded guilty to the charge of harassing a witness.
TBNM said his relationship with TU really ended when he went to gaol. He said his and her parents had been hoping they would reunite, but that hope receded. He said he told his parents in August 2016 of his conviction and imprisonment and they were shocked, because it was the first time any member of his family had been involved in any serious offending. He said he also told his brothers.
Mr Brown asked TBNM whether he would go back to live with his family if his visa remained cancelled and he was deported. TBNM said that was his preference. He said he would try to find employment in his home country but said it was predominantly an agricultural economy, so he was not sure his skills acquired in Malaysia and Australia would be able to be put to use. TBNM agreed that the fact that he was now also fluent in English as well as his native tongue, and had acquired a tertiary qualification, would help in establishing a new career.
Evidence of TU
TU gave evidence by telephone from overseas. She said that TBNM moved out of their home to Bendigo because they had been having disagreements but both wanted to be supportive of their son. She said TBNM had moved out so they could ‘work things through.’
TU told the Tribunal that, after he moved out, TBNM would travel back to see their son once a week at the weekend, or once a fortnight but because he was working six days at that time at the meat processing factory, only occasionally was he able to visit on a weekday.
TU told the Tribunal that TBNM told her, for the first time, about the offending in September 2014 after he was interviewed in relation to the second offence. She said their relationship ended in February 2016, ‘we just decided that was it.’
TU said she took their son to visit his father in prison, not every week but as much as she could, to ensure his contact with his father. Mr Brown asked TU what her view was on TBNM’s access to their son, if he was allowed to stay in Australia. TU said he would be able to visit but not stay overnight and, because of the requirements under the sex offender register, she was required to be present when TBNM was with their son. TU emphasised that she never felt that their son was in anyway unsafe in the presence of TBNM and she felt it was important that he know both his mother and his father.
In terms of the likelihood of TBNM re-offending, TU said she could not see him
re-offending because he would not put himself in this position again, especially in regard to access to his son. TU admitted she had no idea of the offending that had occurred in 2013-14 until TBNM confessed to her much later, but was of the view that TBNM’s focus is now on his son. TU said she believed TBNM had many good qualities, was hard-working and a good father, and that he deeply regretted his offending.
CONSIDERATION
Protection of the Australian community (paragraph 13.1)
The Direction requires decision-makers, including this Tribunal, to give consideration to the nature and seriousness of the 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.
The Direction also exhorts decision-makers to take heed of the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.
There is no doubt that both instances of sexual offending were serious. Although TBNM asserted to the Tribunal that, in relation to the July 2013 offending, where he forced the 14 year old girl to perform oral sex on him, he did not until later know that she was aged 14, the Judge’s reasons for sentence (GD, p 17) stated:
In the course of a Facebook conversation you advised your victim that you were going to go to Bendigo “to go clubbing”, your victim asked you to drive her to Bendigo as well and you agreed to do so. In the course of this conversation, your victim made known to you that she was 14 years old.
His Honour remarked that this circumstance was not in dispute between the parties. I note that it is recorded that TBNM was represented by counsel, instructed by solicitors, at the hearing. I do not accept his now assertion that he did not know the victim’s age at the time, and only found out later. If that was the case, his lawyers could have disputed that fact when the matter came to the Court for plea.
The Judge went on:
On 4 August 2013, your victim disclosed your offending to her father. A report was made to the police however you were not interviewed by the police until 14 September 2014. In the course of that interview you told the police that no person other than your wife had performed oral sex upon you and that you had no memory of your victim, taking the girl back to your house and having her perform oral sex on you, or speaking to the complainant online, or picking the complainant up and driving her to your house.
In terms of the Direction, it is clear to the Tribunal that this was a crime directed against a vulnerable child, and as such should be viewed very seriously. The Judge said:
In my opinion, it is appropriate to describe your behaviour involved in his offending as being predatory. I make that statement given both the disparity between your age and that of your victim and the difference in your respective life experiences; your offending was visited upon a child of 14. There was a very significant disparity in life experience between yourself and your victim in the context of which you as a relatively mature twenty-three year old, being a married man who possessed considerable life experience given your history of education, travel and employment, struck up a conversation on Facebook with a fourteen year-old and then took advantage of that situation to commit this offence.
The Judge did balance the relative youth of TBNM, the fact that he was a first-time offender and the fact that he had admitted guilt and therefore saved the victim from reliving the events at trial in TBNM’s favour in arriving at the sentence. The Judge also noted that TBNM had already completed significant parts of the Community Corrections Order imposed by the Magistrates Court (in regard to the chronologically later offending of September 2014, but which was dealt with at court earlier). However, His Honour decided a prison term was warranted and said that, but for his plea of guilt, he would have imposed a four year sentence with a non-parole period of three years.
In terms of the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct, the Respondent submitted that there was a low to moderate risk of re-offending, but not a high risk.
While the Tribunal accepts TU’s opinion that she does not think TBNM will re-offend because of the consequences for his relationship with his son, there are some factors which are relevant in considering this part of the Direction. As set out above, TBNM flatly denied the complaints when he was first interviewed by the police, agreeing in cross-examination in this hearing that he told the police both the first and second complainants were telling lies.
TBNM made submissions at the hearing that he was not a repeat offender, but when this was contested by Mr Brown, he said that he meant he had not offended since he was sentenced, not that he was denying that he had committed two, successive, sexual offences.
The Judge remarked (GD, p 19) that he was satisfied that he should be ‘cautious’ as to TBNM’s prospects of rehabilitation. The evidence was that he has been well-behaved in prison and has undertaken courses to improve his skills, as well as mandatory behavioural courses.
The Tribunal did not have any professional assessments of TBNM from a forensic psychiatric or psychological perspective before it. It did have evidence from a government psychologist (GD, p 66) of TBNM undertaking the ‘Better Lives Program’ in prison. This program is group-based intervention designed to target sexual offending behaviour. TBNM told the Tribunal that, among other matters, the program explains how to interpret consent and withdrawal of consent in terms of sexual conduct.
Because of the paucity of material, the Tribunal concludes that there is a risk of TBNM
re-offending. It may not be a high risk, and the Tribunal accepts the evidence of both the Applicant and TU that he genuinely is remorseful and realises the consequences of his offending in terms of his access to his son. However with the information before me, I cannot find positively that there would be a low risk of re-offending. This is partly due to the fact that TBNM did conceal his predatory sexual behaviour from everyone from July 2013 to when he was charged in September 2014, and that, having forced a 14 year old to commit a sexual act for his own gratification, he then went on to commit another sexual assault on a 16 year old, albeit in the second case a person he knew and with whom he had had an earlier consensual sexual relationship. It is also partly due to the Tribunal’s conclusion after hearing his evidence and submissions that TBNM did not seem to appreciate that the gravamen of his offending was compounded by the age of the complainants, relative to his age, and particularly so in the case of Victim 1.
In terms of the Direction requiring a decision-maker to take account of other serious conduct which may not have resulted in a conviction, the Tribunal does not accept TBNM’s assertion that his text message exchange with the first complainant’s eleven year old sister was a fabrication, designed to implicate him. Nothing eventuated from these exchanges but they reveal, at best a recklessness of TBNM about engaging in sexually-charged conversations with minors, which are totally unacceptable and which—as a mature, married adult with certain life experience—he well knew are totally unacceptable. His denial of any association with these messages at the hearing was implausible.
The Tribunal finds that, especially because of the age of the first complainant and TBNM’s frank admission that he forced her, as a minor child, into the sex act, this primary consideration weighs heavily against revoking the mandatory cancellation of his visa.
Best interest of minor children in Australia affected by the decision (paragraph 13.2)
The Respondent and the Applicant submitted that this consideration favoured the restoration of TBNM’s visa. The Tribunal accepts TBNM’s evidence about his relationship with his son and the evidence given by TU of the history of that relationship, including regular visits by his son to TBNM when he was, first, in prison and, later, in immigration detention.
TBNM made extensive oral submissions to the hearing about the importance, wherever possible, of a child having regular access to both parents. While this may not be a completely immutable principle—in a case where a parent’s influence may not objectively be positive or in the best interests of the child—the Tribunal is satisfied that such a qualification is not relevant here, and it is in the best interests of TBNM’s child to grow up with access to his father.
The Tribunal accepts that deportation would have a significant effect on TBNM’s son. He is now almost six years old and has formed a relationship with his father, even though his father has not lived with him since he was around five months old. The Tribunal also notes that TBNM’s son has a health condition, in terms of his speech slowness, but that on the evidence of TBNM himself, this condition is slowly improving.
The Respondent submitted that the Tribunal should take into account that the statutory requirements of the Sex Offenders Registration Act 2004 (Vic), which impose a set of requirements on TBNM for the 15 years that he is on the register under that Act and which prevent him being alone with his son. The Respondent noted that it was TBNM’s own offending decisions that directly led to these restrictions. The Tribunal notes that, but takes the view that, in respect of engaging with this part of the Direction, it should do so from the perspective of the minor child’s best interests. There was no evidence that TBNM would be a danger to his son, and positive evidence from TU that she felt he would not be. In this situation, I am not convinced that, at least at this stage, that particular limitation would have a negative impact on the child in terms of paragraph 13.2(4)(c) of the Direction.
The Respondent submitted that, as TU lives with her parents, there was a father figure role in her son’s life, being his maternal grandfather. While this may be accepted to a certain extent, I do not accept that there is evidence that this person fulfils a parental role in the terms contemplated in the Direction.
The Direction requires a decision-maker to examine the best interests of any minor child relevantly affected by a visa cancellation or refusal decision. In her evidence, TU advised the Tribunal that she has since had a daughter (not to TBNM). TBNM said he had not met this child, so the Tribunal does not consider the effect on this minor child of the cancellation of his visa any further.
While there may be a little leavening of the weight because of TBNM’s geographical absence from the family home for almost all of his son’s life (first living in another town and then in custody), the Tribunal accepts that both parents have made particular efforts to ensure their son keeps in contact with his father and so finds that this primary consideration weighs in favour of revoking the mandatory cancellation of TBNM’s visa.
Expectations of the Australian community (paragraph 13.3)
The Direction reminds decision-makers of the truism that the Australian community expects non-citizens to obey Australian laws while in Australia. To that, I would add, that the community expects the same of citizens. In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, the Court at [76] stated that this consideration is ‘inextricably linked’ to the protection of the Australian community.
This primary consideration necessarily requires a decision-maker to construct, in his or her mind, a hypothetical community member and then try and assess what such a person would think. The sensible way to do this is to assume that this hypothetical person has before them the relevant factual circumstances surrounding the particular offending or other serious conduct, including any relevant mitigating or aggravating circumstances.
The Tribunal’s view is that the community member would look particularly adversely at the fact that TBNM’s first offence occurred some seven months after he arrived in Australia to settle with his new wife, and that they then had a newborn son, and that it was a sexual offence against a child that he did not disclose for more than a year, and then initially denied. The community member would also look adversely at the fact that TBNM repeated similar behaviour, again towards a child, in his second offending, thereby being, at best, oblivious that his first conduct was completely at odds with expected behaviour, or, at worst, being callous. TBNM then compounded this by harassing a witness who had made a legitimate complaint to the police.
The Tribunal finds that this primary consideration weighs against revoking the mandatory cancellation of TBNM’s visa.
Other considerations
International non-refoulement obligations (paragraph 14.1)
The Tribunal must consider whether a non-refoulement obligation may arise in respect of a non-citizen whose visa has been cancelled. Australia has a range of international treaty obligations (notably the 1951 Convention relating to the Status of Refugees) which engage an obligation on this country not to return or deport a person to a place where that person will be at risk of a specific type of harm. In addition, a decision-maker may, where relevant, need to consider whether complementary protection obligations may be owed.
TBNM said that he was concerned, if he returned to his Western African country, others would be aware of his offending and there may be consequences TBNM said he is from a traditional community and he was worried that, if some people ever found out about his offending ‘they might take matters into their own hands.’ TBNM told the Tribunal that he was aware of violence from the community that accrued to a person in his home country who had been discovered to have been unfaithful to his wife.
The Tribunal does not conclude that this other consideration is engaged, on the strength of what TBNM said. The Tribunal also notes he made no claims of other kinds of harm that could agitate this consideration. He confirmed that only his parents and his brothers knew about the nature of his offending. It is hardly likely that any family would be keen to broadcast the specific nature of the offending, or would have any purpose in so doing.
The Tribunal notes, and it was made clear to TBNM at the hearing, that if his visa remains cancelled, it is open to him to make an application for a protection visa. In such an application he could better set out any Treaty-related protection claims that he may make, or any other non-Treaty aspects of particularised harm that he may claim he would face if repatriated. The Minister has made a different ministerial direction, Direction No. 75, which makes clear that, should a person such as TBNM who raises character concerns (because of the fact that has failed the statutory character test), apply for a protection visa, a decision maker considering such a protection visa application must first assess any refugee claims before considering any character or security concerns.
The Tribunal finds that this consideration weighs neutrally in this assessment.
Strength, nature and duration of ties (paragraph 14.1)
The Direction requires that decision-makers have regard to how long a non-citizen has resided in Australia, noting that less weight should be given where the person began offending soon after arriving in Australia and more weight should be given to the time the non-citizen has spent contributing positively to the Australian community.
The Tribunal must also have regard to family or social links the person may have with Australian citizens and the effect on a non-citizen’s immediate family in Australia.
In this case, TBNM began offending, as mentioned above, within months of arriving in Australia. His first offence was his most major offence, and one that he concealed from his wife and friends until he was arrested in relation to a second offence.
It would seem to the Tribunal that, notwithstanding this serious criminal conduct, TBNM had worked productively in employment for three years and was well regarded by his employers. He told the Tribunal that they had made an offer to him of a job back at the processing factory if he is allowed to stay in Australia. That offer reflects their regard for his work ethic. This is in his favour.
It is also clear to the Tribunal that there would be an adverse effect on TBNM’s immediate family, TU and their son, of his visa remaining cancelled. While on the evidence of TBNM and TU the marriage has ended, except currently in a purely legal sense, they both remain committed to their son and to his welfare, which is to their joint credit.
The Tribunal finds, after carefully considering this matter and the time of the offending, that on balance this other consideration weighs slightly in favour of revoking the mandatory cancellation of TBNM’s visa, mainly because of the effect on the Applicant’s son.
Impact on Australian business interests (paragraph 14.3)
While, as referred to above, TBNM had a relatively good work history in Australia before his incarceration, the Direction notes this consideration should generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia. There was no evidence before the Tribunal that would be the case, so this consideration is not engaged.
Impact on victims (paragraph 14.4)
While there was reference to the effect of the sexual assault on the first victim in the Judge’s remarks, and on the second victim in a victim impact statement in the papers, these were not made in the context of consideration of TBNM’s migration status and no other information was available on what their contemporary attitude may be, so the Tribunal does not consider this other consideration further.
Extent of impediments if removed (paragraph 14.5)
The Direction requires consideration of any impediments a non-citizen may face if repatriated, in terms of re-establishing themselves in their home country and maintaining basic living standards, in the context of what is generally available to citizens of that country.
The Tribunal notes that, since TBNM left his home country to study and work abroad, he has learned a second language, obtained a tertiary degree and developed a work history and skills. He is a young man in good health, and clearly intelligent in the way he approached his self-representation at the hearing. It is conceded that opportunities at home may be much more limited than what could be available for him in Australia, but that is not the measure I am required to apply here. He said that his preference would be to return to live, at least initially, at the family home. He did not consider that his parents, now both retired, would be able to provide him with much financial support, but agreed that there would be some employment opportunities for him in his home town, although he had not yet explored them.
The Tribunal finds that this consideration weighs neither for nor against revoking the mandatory cancellation decision.
Conclusion
While the best interests of TBNM’s child weigh in his favour, the Tribunal concludes that the very serious nature of his predatory conduct against vulnerable young girls, and in particular the element of force that was used in the most serious offence, weigh more heavily than the other principal reason that supports restoration of the visa, the best interests of his young son. As discussed above, while TBNM told the Tribunal that he has since learned more about what ‘consent’ means and that his conduct was wrong, I am not satisfied that he grasps the fact that the age of Victim 1 was the compounding aspect of his criminality in his most serious offending.
These factors lead the Tribunal, after careful consideration, to the conclusion there is not another reason that the mandatory cancellation of TBNM’s visa should be revoked. I am mindful of the effect on TBNM’s young son, who is the innocent party in all of this. However, TBNM knew that his conduct was wrong, and not only pursued it, but then effectively repeated it. Serious criminal behaviour of this magnitude by a person who was on a temporary visa leads to equally serious migration consequences, and they have in this case.
DECISION
The Tribunal affirms the decision of 7 February 2019 not to revoke the mandatory cancellation of the Applicant’s visa.
I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
....................[sgd]....................................................
Associate
Dated: 7 May 2019
Date(s) of hearing: 29 - 30 April 2019 Applicant: In person Advocate for the Respondent: Mr David Brown Solicitors for the Respondent: Australian Government Solicitor Appendix – List of exhibits
Statement of the Applicant, dated 25 March 2019 (Exhibit A1)
Correspondence from National Disability Insurance Agency dated 29 March 2018 (Exhibit A2)
Statement of Applicant’s wife (‘TU’), dated 22 March 2019 (Exhibit A3)
Statement of GV, dated 18 March 2019 (Exhibit A4)
Paginated ‘G’ documents lodged by the Respondent (Exhibit G)
Paginated Supplementary ‘G’ documents lodged by the Respondent (Exhibit SG)
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