"VAQ" and Minister for Immigration and Multicultural and Indigeno Us Affairs
[2004] AATA 47
•21 January 2004
CATCHWORDS – IMMIGRATION
– bridging visa – failure to pass character test – term of imprisonment for more than twelve months – whether discretion should be exercised – harm to and expectation of the Australian community – decision affirmed.
Migration Act 1958 ss. 31, 499, 500, 501 and 501K
Migration Regulations 1994 Schedules 2 and 4
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
DECISION AND REASONS FOR DECISION [2004] AATA 47
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2003/859
GENERAL ADMINISTRATIVE DIVISION )
Re “VAQ”
Applicant
AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 21 January, 2004
Place: Melbourne
Decision:The Tribunal affirms the decision of the respondent dated 9 December, 2002.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 28 February, 2003, I affirmed a decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs (“the Minister”) dated 9 December, 2002. The delegate’s decision was to refuse the applicant a Bridging Visa E in connection with his application for a Protection Visa. As s. 501K of the Migration Act 1958 (“Act”) does not permit the Tribunal to publish any information that may identify an applicant for a protection-related bridging visa, I will refer to him as “VAQ”. The delegate refused VAQ’s application on the basis that he did not satisfy the character test set out in s. 501 of the Act. In my reasons for decision, I incorrectly referred to the written directions issued by the Minister on 16 June, 1999 (Direction No. 17) instead of those made on 23 August, 2001 (Direction No. 21). An appeal on that basis was successful and the matter has been remitted to the Tribunal to consider again according to Direction No. 21. Pursuant to the President’s direction, I heard the matter again.
At the hearing on the remittal, VAQ represented himself and spoke through an interpreter engaged by the Tribunal. He asked at the beginning of the hearing that he be given legal assistance by the Tribunal and stated that he had a right to be given it. I advised him that this was not a matter that I could assist him with at that stage of the proceeding. His obtaining legal assistance was a matter that I had raised with him at each of the three directions hearings. After the first directions hearing on 4 September, 2003, he was sent a letter dated the same day setting out the names and contact details of two organisations that might be able to assist him: the Refugee and Immigration Legal Centre Inc and Victoria Legal Aid. At the second directions hearing held on 19 September, 2003, VAQ indicated that the organisations had said that they would “perhaps help” him. VAQ said at the third directions hearing on 7 October, 2003 that he had been in contact with Legal Aid and that they would “look into it and … may find a representative”.. A hearing was listed to take place on 10 December, 2003 on the basis that it would give any representative sufficient time in which to prepare.
At those directions hearings, I also explained the sorts of matters that he should talk about at the hearing e.g. whether or not the crime of which he had been convicted was serious; whether he was likely to commit further crimes; what Australia expects of people who come here; the hardship that VAQ would be likely to face if he were to return to Albania. It was suggested that he might want to have his family present as he had at the previous hearing. Ms Greaves, who represented the Minister at the hearing, sent a copy of Direction No. 21 to VAQ. The hearing was adjourned to enable the interpreter to translate the relevant passages of that document to VAQ.
At the hearing, VAQ said that he had nothing to add to that which he had said at the previous hearing. To add anything, he said, would be like repeating himself. All that he wants is to return to Albania. He does not, however, want to return from the Maribyrnong Immigration Detention Centre (“Detention Centre”) where he is isolated. Instead, he wants to return to Albania from an open environment. He wants to sign the papers that allow him to go back but to do it freely. In that way, he will be able to organise himself and leave Australia as a human being. He has always worked anywhere and everywhere and is an innocent person. What is new is that it is unfair to leave him locked in some sort of prison. He has many friends and people who support him.
I advised VAQ that I could not grant him a visa and could not decide whether or not he could remain in Australia for a short period on the terms and under the conditions he proposed. The Tribunal had not been given any power to do that. All that it could do, and so all that I could do, was review the decision that he be refused a Bridging Visa on the basis that he did not satisfy the Minister that he passes the character test under s. 501 of the Act. The Bridging Visa for which he had applied was associated with his application for a protection visa only. VAQ said that he did not agree that my powers were limited in that way and said that “this is a game of words”. He said that he had made a firm decision to return to Albania. As he is not a child, he will return and re-establish himself there. His mother is there. What he wants is for people to see that he leaves Australia “for people to see who I am” for “properly”, he said. He is prepared to guarantee that he will leave. VAQ wants justice and there are limits to what he can endure. He has always been right in his life and has never been a false person.
Four letters were sent to the Tribunal by facsimile from the Detention Centre from: Basil Natoli, Manager Community Gardens Project, Department of Human Services dated 6 August, 2003; Peta Christensen, Community Gardens Support Worker, Cultivating Community dated 8 August, 2003; Robin Parker, Garden Support Worker, Cultivating Community dated 7 November, 2003; and Chris Newland, Churches of Christ Chaplain at the Detention Centre (undated). A further letter from Ms Maria Sola dated 2 September, 2003 was sent to the Tribunal. None had been given to the Minister at least two business days before the hearing was held.
There is a question whether this was in contravention of s. 500(6J) of the Act and whether I could have regard to them. That section provides that, where an application has been made for review of a decision under s. 501 and the applicant is in the migration zone, the Tribunal must not have regard to any document submitted in support of his or her case unless a copy of the document “… was given to the Minister at least 2 business days before the Tribunal holds a hearing … in relation to the decision under review …”. Section 500(6J) is but one of a number of provisions regulating the procedure to be adopted by the Tribunal when a person is, as is VAQ, within the migration zone and the decision to be reviewed concerns the character test in s. 501.. Other provisions, which are found in ss. 500(6A) to (6L), concern matters such as the oral information to which the Tribunal may have regard, the minimum time within which it may hold a hearing and the maximum time it may take to review the decision. Once a matter has been heard within these constraints, as was VAQ’s first matter, but has been taken on appeal, there is a question whether the provisions apply on the re-hearing. Certainly, the time constraints effectively set out in s. 500(6L) to hear and determine the application within 84 days after the day on which the person was notified of the decision under review in accordance with s. 501G(1) cannot apply. The 84 days have long since passed.
It seems to me that this is not the case in which to consider the question of the effect of a remittal on the requirements of ss. 500(6A) to (6L).. Having considered the matter both with and without the additional written material, I have reached the same conclusion. I will, therefore, have regard to it in these reasons.
THE ISSUES
The first issue is whether VAQ passes the character test set out in s. 501(6) of the Act. If he does not pass that test, the second primary issue is whether the discretion in s. 501(3) should be exercised to refuse to grant him the visa.
BACKGROUND
In my previous reasons for decision, I summarised the findings that I had made regarding matters that did not appear to be in dispute between the parties. As none of those findings again appeared to be in dispute at the re-hearing, I adopt my previous findings. Edited in order to comply with s. 501K, they were:
“4. At the conclusion of the hearing, it appeared that … [VAQ] and the Minister were not in disagreement about the facts forming the background to his application. In light of that and taking into account both … [VAQ’s] evidence and the G documents, I have found the following facts:
… [VAQ] was born at Tirana in Albania on 4 July, 1965. He is the eldest of five children. His mother continues to live in Albania with one of his brothers, his brother’s wife and his sister. One brother lives in the United States of America. His father, who died in 2001, lived in Australia as does one of his brothers, ….
He completed all eight years of primary school and then continued with his studies at night while he worked during the day. He undertook mechanical studies three nights each week and worked on the others. At the same time, he attended an Army driving course.
During this time, … [VAQ] worked in the warehouse and in the services department of a mine.
Between 1984 and 1986, … [VAQ] completed his compulsory national service as a driver or chauffeur for both the Army and the Air Force.
In 1987, … [VAQ] found employment with the Public Order Ministry, where his father was also employed. The Public Order Ministry is the equivalent of the Police Force. He was employed as a driver and his duties included his transporting prisoners and soldiers.
… [VAQ] remained with the police force until 1995 when he applied for an Occupational Trainee Visa. His application was approved and he was granted a Subclass TH442 Occupational Trainee Visa with condition 8102 (limiting his ability to work) and 8202 (requiring him to meet course requirements) attached to it.
He arrived in Australia … [in] 1995 with a group of students from Albania. Once each week, he attended a course at the Shepparton TAFE to learn about such matters as farm management, spraying and the operation of farm equipment. Five days a week, he picked fruit, pruned, worked in a shed and drove trucks. In the evening, from 4.00pm until 7.30pm, he attended classes to learn the English language. He attended a three week course at the Driver Education Centre of Australia to obtain his licence to drive semitrailers and also holds a licence to drive a car.
During his first year in Shepparton, … [VAQ] lived with his sponsor and his family but, after his younger brother arrived in Australia, he and his brother found accommodation on the farm owned by the husband of their first cousin.
On 13 September, 1997, … [VAQ] applied for a further Occupational Trainee Visa. His application was approved and he was granted a Subclass TH442 Occupational Trainee Visa with the same limitations attached to it.
On 26 July, 1998, … [VAQ] was involved in a series of events that subsequently led to his being charged and, on 23 September, 1999, being found guilty by the County Court sitting at Shepparton on four counts and sentenced to a cumulative sentence of 5 years and 12 weeks as follows:
one count of rape (5 years);
one count of kidnapping (2 years to be served concurrently); and
three counts of intentionally cause injury (4 weeks on each count totalling 12 weeks in all).
A non parole period of 4 years and 84 days was set and Judge Duckett declared that the 426 days that … [VAQ] had spent in pre-sentence detention had been served as part of his sentence.
The maximum terms of imprisonment provided by the law in Victoria are 25 years for rape and kidnapping and 10 years for intentionally cause injury.
26 October, 1999, … [VAQ] was granted a Bridging Visa E so that he was lawfully present in Australia during his imprisonment.
On 15 October, 2002, … [VAQ] was released from prison but was immediately taken into immigration detention at Maribyrnong.
… [VAQ] applied for a Protection Visa on 5 December, 2002.
THE EVIDENCE
In addition to the four letters lodged with the Tribunal before the re-hearing, I have had regard to all of the evidence given at the previous hearing. I summarised that evidence in my previous reasons and, having considered the evidence again, am satisfied that it accurately reflects the evidence given at the first hearing. I have omitted some names in order to comply with the requirement in s. 501K of the Act that I not publish any information identifying any relative or other dependant person of a person who has applied for a protection-related bridging visa.
“5. I will begin with the remarks made by Judge Duckett in sentencing … [VAQ]. After acknowledging his lack of English and of the legal system in Australia, his Honour began by setting out the circumstances in which the offences were committed:
‘ Before July 1998, your brother … had had a brief intimate relationship with the victim of the rape count. I shall refer to her as L. She rejected your brother's proposal of marriage because it was presented as an opportunity for your brother to gain Australia citizenship. There was also considerable disparity in ages. During your brother's relationship he had no means of transport and you drove him to visit L at her house in … that she shared with two other young women. You were therefore an acquaintance of L and the two other young women. They were 16 and 17 years of age at the time of the offences. L was 17 and you were 33.
On Saturday 25 July 1998 the three female victims named in the presentment went to the … Hotel about 8.30 p.m. They went to play pool, drink alcohol and later attend a disco that ended at 5 a.m. the next morning. At about 3 a.m. L felt ill, probably as a result of drinking alcohol, and as a result she did not drink much more alcohol that morning. At the disco you asked her to go with you to find your brother …. She refused.
After the disco closed the three female victims and others spent some time outside the hotel watching a fight. Whilst they were there, you were found in your car waiting outside L’s residence. You said that you were looking for your brother, …. You were told to leave and did so. Ten minutes later you returned and were told that if you did not leave the police would be called.
You returned to the … Hotel and again asked L to go with you to find …. She refused and walked away with her girlfriends, intending to walk home. You followed in your car, got out again - got out and again confronted your victims. They were scared by your approaches and ran to hide in the nearby pedestrian mall. You again followed them and drove your car into the mall.
You then approached a 21 year old male, and when he said that he was helping the women walk home. Without warning you “king-hit” him in the left temple area and he was thrown to the ground. That action constitutes Count 1.
You pulled a branch off a tree, apparently to use as a weapon. While you struggled with the desperate L, one of her companions came to help her and you kicked her severely below the knee. You punched your third victim in the face, and photos 1, 2 and 3 in Exhibit A show the effects of that blow. Those two assaults constitute Counts 2 and 3.
You used violence to force L into your car and drove out of the mall at high speed to the orchard outside … where you lived, intending to rape L. Count 5 relates to that conduct.
You had been drinking that evening and were affected by alcohol. Despite your condition you were able to fend off several attackers, to drive along the congested pedestrian mall twice at high speed, and then drive without mishap to your residence on an orchard some distance from the town.
I am satisfied that you were fully aware of the nature of your conduct that evening and reject your contention to the police that you had no recollection at all of the events of that evening and morning. Your drinking does not excuse your conduct in any way.
L was screaming and crying as you drove her to the orchard. Your response was to punch her face and head as your drove the car, an obviously dangerous and frightening manoeuvre.
You and your brother were living in secluded basic accommodation provided for labourers on your uncle’s orchard. L was taken inside and threatened with a sharp pointed steak knife. You told her to stop crying or you would kill her. L replied that her friends would already be at the police station. You replied, “I’ll kill you and only get two years anyhow.” Mr Perry, for the Crown, properly drew my attention to that remark. It suggests that you believed that any offending would be treated leniently by the courts. If that was your belief or if that is the belief of others, then it is necessary for this court to convey a different message.
You forced L into a bedroom area, forced her onto a bed, tore off her underwear and forcibly raped her. She received two black eyes and other marks and injuries that are shown in photos taken a few hours later, see Exhibit B. You had unprotected sex and ejaculated onto L’s stomach. She had the foresight to wipe your semen onto her torn panties and DNA testing later confirmed your sordid role in this affair.
Shortly afterwards, L agreed to go with you to your cousin's in the hope that she would get help. On seeing L’s distressed state your cousin immediately took her home. Police arrived at her home shortly afterwards and you were arrested at 6 p.m. that day.
…” (G documents, pages 26-29)
6. With regard to remorse, Judge Duckett said to … [VAQ]:
‘…it appears that you are not able to express concern for your victims and only limited remorse for your actions. One of several character witnesses called on your behalf said that you expressed to her your regret about the shame that you have brought to your family. That was the only indication that I have, that you have any sense of regret or remorse for your actions.’ (G documents, pages 25-26)
7. Of … [VAQ] background and the reasons for his having offended, Judge Duckett said:
‘Several witnesses were called to attest to your non-aggressive, quiet and mild character. You work hard and have strong family loyalty and your conduct on this occasion is described as wholly exceptional. I was told that the Albanian community in …, where you are a trusted member, is surprised that you have acted in this way. … is the religious leader of the Albanian community in Shepparton and he has spent 17 years in ….. He was openly shocked by the Crown's outline of the facts of the case. His evidence as I recorded it was, ‘It is hard to explain what happened. I am shocked, such a big crime. I cannot manage that, is a big crime.’ He said that you are not a practising Muslim but that you had attended the mosque to have lessons about religion. He said that he knows you as a quiet, good person.
The only explanation advanced by way of mitigation for your crimes is that you had been drinking and were under stress. Your mother was ill in Albania and had been refused a visa by the Albanian authorities to visit her husband and sons in ….. You, along with all other Albanian students in your course at the TAFE, had just failed an English exam, and after three years your temporary Australian visa was to expire within a few days. You feared you would be forced to return to Albania. Those matters might provide some explanation for your actions. They certainly do not justify or excuse your abhorrent behaviour.’ (G documents, pages 29-30)
8. His Honour concluded:
‘You have inflicted great pain and suffering on your victims. The … community as a whole must feel concerned when young women are openly attacked in the city centre in this way. Many students fail exams and most citizens are subject to a measure of stress at some time in their lives. You are a mature, ex-police officer. At the time, in the eyes of the law, three of your four victims were not adult. I do not accept that your difficulties in July 1998 afford any substantial grounds for mitigation of your sentence.
You are before the court without prior convictions and at the age of 34 you have a good work record. You come from a respected family. You have pleaded guilty to these offences and that has saved the community the expense of a trial and saved the victims the distress of giving evidence before a jury. I must balance those considerations and the evidence given on your behalf with the facts of the terrifying ordeal that was inflicted on your victims, in particular on L. She says that it has totally changed her life and I accept that that could be the situation for many years. Your victims now have a sense of fear and insecurity, a fear of walking in the street alone or with friends. They have fear of being alone at home at night. Your behaviour was behaviour was outrageous . I find it difficult to assess whether or not you might re-offend. In the circumstances of this case, general deterrence is the dominant factor in the fixing of an appropriate sentence.’ (G documents, pages 30-31)
9. In response to a question from me regarding his offences, … [VAQ] said that all that was behind him now. He could not speak the language at the time. He had been punished for what he had done and everything was finished now. … [VAQ] said that he had made a mistake and suffered imprisonment. In prison, he had conducted himself well and had to deal with criminals. He had worked hard and not missed one day of work while in prison. Since being kept in immigration detention, he has tried to make use of his time by gardening, helping with sporting activities, reading (especially newspapers) and participating in any activities he can. Later in his evidence, … [VAQ] said that it was not a matter of his saying that he was sorry but of showing that he was sorry in the future.
10. When asked whether he thought about the events of the day on which he had committed the offences, … [VAQ] responded that he did and that it was something that he regretted. He can only look to the future and get some self respect in his life. As to whether he had done anything bad or serious on that day, he replied that he had been drinking and was also sick. For a while, he had not even known what he had done. He did not think that anything bad had happened.
11. Before his death, … [VAQ] said, his father had told him that he was to take his place as head of the family in Australia. That is the Albanian tradition. His father had told him from his death bed to participate in his brother’s wedding and that was a symbol of his taking over his father’s role.
12. … [VAQ] expressed fear at being returned to Albania. He said that his previous work for the Public Order Ministry meant that many of those prisoners whom he had transported would be looking to harm him on their release from prison. His father had been a policeman and, when he was working as a driver, he felt that the prisoners looked at him ‘in a different way’.. He was reluctant to return to Albania and did not know the risks he would face if he were to return. All that he asked for was to be given a second chance to show who he is and to show that he is a person who can work and be someone. Others with whom he was imprisoned had committed heavier crimes but would be permitted to participate in Australian life on their release. ‘They are human beings like me, aren’t they?’, he asked.
13. A booklet containing eight references was submitted in evidence. They are from:
Peta Christiensen (Community Gardens Support Worker, Cultivating Community), who has worked with … [VAQ] on a garden project at the Maribyrnong Detention Centre for some four months.
…, who is the mother of his sister in law i.e. the mother of the wife of his brother, ….
Redi Dervishi, who has been in Australia for six years and who knew … [VAQ] and his family for many years prior to his arrival in Australia.
… of … who has known and employed … [VAQ] since August, 1995.
Semsa Jelecevic, who has known … [VAQ] for two years.
Bari Memedi, who has known … [VAQ] for 12 years. He first met him while visiting Albania with his wife in 1991. She wrote, in part:
“… Following his father’s death, … [VAQ] often showed a great deal of remorse and regret for his actions, often blaming himself and his situation, as being a contributing factor to his father’s death.”
… is married to … [VAQ’s] brother, …. She has known … [VAQ] for two years. As to his life in the future, Ms … wrote:
‘…… [VAQ] has a great characteristic personnel and to be judged guilty for a long time has made him think things throughout life. I strongly believe he deserves another chance here in Australia just like everybody else. He is a loving person with a beautiful personality, enthusiastic with a great sense of humour.
He has gone through a lot since his fathers death and to go back to Albania would be a big mistake. He has no future there like we do here. I have been there myself and to live is very poor. There is no work to support their needs especially for that piece of bread.’
… has known … [VAQ] for approximately eight years. … [VAQ] resided with … and his family for the first twelve months after he arrived in Australia.
14. Each of … [VAQ’s] referees, other than Peta Christensen, spoke in terms of his respectable family and his personal qualities. … for example, described him as a ‘loving person with a beautiful personality, enthusiastic with a great sense of humour’. His work was praised. Mr Sherif, for example, wrote of his ‘great enthusiasm and … hard-working attitude’ and Mr … said that ‘At all times he was a good worker; respectful of others, especially grateful for advice and direction’. Mr Dervishi described … … [VAQ] as:
‘… an honest, reliable, caring and responsible man. He is hard working and only wants the best for his family. He is a man with good principles in life and I firmly believe that he will ret[r]ain to be a good citizen and can contribute a lot to the Australian community.’
Mr …, Mr Dervishi and Ms …[the mother of the wife of his brother, …] would all be prepared to sponsor VAQ for a visa to remain in Australia. Mr Dervishi, Ms …[the mother of the wife of his brother, …] , Ms Jelecevic, Ms Memedi and Ms … [who is married to VAQ’s brother] all indirectly alluded to …[VAQ’s] either having been in prison or as having had some difficulty with the law. None referred to the reasons for his being imprisoned or to having had some sort of difficulty with the law.”
The letters from Basil Natoli, Peta Christensen and Robin Parker each speak of VAQ’s work in assisting in the establishment of a community garden at the Detention Centre. It is a common theme in their letters that VAQ is constant in his attention to the garden and has taken responsibility for its care during the week when the volunteer Community Gardens Support Workers are not at the Centre. Mr Natoli wrote that he has “been struck by his determination and positive attitude to life despite the constraints and stresses associated with living a life of uncertainty in the Detention Centre”. He continued that VAQ:
“… has displayed admirable qualities and a strength of character and feel confident that with the supports he has around him he will do everything possible to work and contribute to his new life here in Australia should his application for permanency be successful. …”
Ms Christensen wrote, in part:
“…VAQ is always kind, considerate and friendly to the garden workers, fellow detainees and centre staff. The garden programme would certainly not be such a positive success without the commitment and enthusiasm of … VAQ.
I wish … VAQ all the best for his future and believe he would be an asset to any community. …”
Ms Parker spoke of VAQ’s actively encouraging and supporting other detainees’ involvement in the programme and particularly those who suffer from depression and anxiety. She regarded him as a “… motivated, honest and caring person who would continue to make a valuable contribution to our community should he be afforded the opportunity.” Ms Sola spoke of VAQ’s seeming to her “… to be a good man who, given a chance, would work hard and be a good citizen.” She had never seen him angry or resentful despite his being in detention. Chris Newland said that he had known VAQ for the previous eight months and then wrote:
“… VAQ mixes well with the other detainees and Centre staff, is well-respected, and shows a genuine concern for others. I have seen him being calm into difficult situations on several occasions. … VAQ is an active person and takes up work and recreational opportunities at the Centre. He has done a lot of painting around the buildings and is the main person responsible for the maintenance of the community garden. I have no hesitation in recommending …VAQ as a person of good character.”
CONSIDERATION
Framework of Act
Under the Act, the Minister may grant visas either to travel to and enter Australia or to remain in Australia or to do both. There are classes of visas (s. 31(1)). Some are specified in the Act itself and some are prescribed in the Migration Regulations 1994 (s. 31(2)). The Regulations may prescribe criteria for a visa or for a visa of a specified class (s. 31(3)). For the purposes of this case, the prescribed criteria for the grant to a person of a visa of a particular class are found in the primary criteria (and secondary criteria, if any) set out in the relevant Part of Schedule 2 to the Regulations. Among the primary criteria that must be satisfied for a Bridging Visa is that, at the time the decision is made, the person satisfies the requirements of public interest criteria. Schedule 4 sets out the public interest criteria.
At the time that the delegate’s decision was made and of this review, criterion 4001 provided that:
“Either:
(a)the applicant satisfies the Minister that the applicant passes the character test; or
(b)the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the applicant would fail to satisfy the Minister that the person passes the character test; or
(c)the Minister has decided not to refuse to grant a visa to the applicant despite reasonably suspecting that the applicant does not pass the character test; or
(d)the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.”
Section 501(2) of the Act provides that:
“The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.”
The “character test” is set out in s. 501(6), which provides that:
“For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(b)the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(c)having regard to either or both of the following:
(i)the person’s past and present criminal conduct;
(ii)the person’s past and present general conduct;
the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i)engage in criminal conduct in Australia; or
(ii)harass, molest, intimidate or stalk another person in Australia; or
(iii)vilify a segment of the Australian community; or
(iv)incite discord in the Australian community or in a segment of that community; or
(v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test.”
The Direction
Pursuant to s. 499, the Minister may give written directions to a person or body about the performance of functions or the exercise of powers under the Act. The person or body must comply with those directions which must not be inconsistent with the Act or the regulations made under it. On 23 August, 2001 the Minister made directions under s. 499 for the guidance of decision-makers in making decisions to refuse or cancel a visa under s. 501 of the Act, Direction – Visa Refusal and Cancellation under section 501 – No.21 (“the Direction”).
In commenting generally upon his power to refuse or cancel a visa, the Minister stated in the Preamble to the Direction:
“In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it.
… When a visa applicant or a visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of the crimes committed, the non-citizen’s links to Australia and any relevant international law obligations.”
The Minister goes on to give a direction as to the purpose for which the powers of refusal or cancellation were given by the Parliament in enacting s. 501 when he said:
“The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or to remain in the community.”
The Direction is then divided into two: the application of the character test and the exercise of the discretion. I will deal with each separately.
Does VAQ pass the character test?
In this case, the ground set out in s. 501(6)(a) is relevant. It is not expanded upon in the Direction but is explained more fully in s. 501(7). Section 501(7) provides that a person has a “substantial criminal record” if, among others, a person has been sentenced to a term of imprisonment of 12 months or more (s. 501(7)(c)). As I have found that VAQ was sentenced to terms of imprisonment of 5 years and 2 years as well as a further 12 weeks, he has a substantial criminal record for the purposes of the Act and so does not pass the character test.
The Direction – exercise of the discretion
It is inherent in s. 501 that failure to pass the character test does not automatically mean that the Minister must refuse a person a visa. In providing that “… the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test” (emphasis added), Parliament has given her the discretion to decide whether or not she should do so. Parliament has also given the Minister the authority to direct how that discretion should be exercised by anybody with authority to exercise her discretion.
25. In exercising the discretion, the Minister has directed that there are both primary and other considerations to which a decision-maker should have regard. Decision-makers are directed that they:
“… must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.” (Direction, paragraph 2.2)
The three primary considerations are:
“(a)the protection of the Australian community and members of the community;
(b)the expectations of the Australian community; and
(c)in all cases involving a parental relationship or other close relationship between a child or children and the person under consideration, the best interests of the child or children.” (Direction, paragraph 2.3)
The Minister then deals with each primary consideration in turn. The consideration of the protection of the Australian community requires me to consider three factors: the seriousness and nature of VAQ’s conduct; the likelihood that he will repeat it; and whether visa refusal might prevent or discourage similar conduct in the future.
Of particular significance in relation to the seriousness and nature of VAQ’s conduct, I must have regard to the Direction that:
“It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:
…
(d)sexual assaults are particularly repugnant to the Australian community, especially sexual assaults involving children regardless of whether there was overt violence or the threat of violence;
…
(h)kidnapping;
…
(n)any other crimes involving violence or the threat of violence:
such crimes are of special concern to the welfare and safety of the Australian community; …
…” (Direction, paragraph 2.6)
The Minister goes on to state in the Direction that:
“It is the Government’s view that the sentence imposed for a crime is an indication also of the seriousness of the offender’s conduct against the community. Decision-makers should have due regard to the Government’s view in this respect, including:
(a) the extent of the person’s criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence; and
(b)the repugnance of the crime:
crimes involving violence or fraud against defenceless persons (such as children, the elderly, the disabled and the incapacitated) are especially repugnant to the whole community.” (paragraph 2.17)
In exercising the discretion, regard must also be had to any relevant factors put forward by VAQ as mitigating factors (Direction, paragraph 2.8(a)). Regard must also be had to the likelihood that his conduct may be repeated and to the need to deter other people from repeating such conduct. In assessing that in the context of VAQ’s case, it is relevant to have regard to:
“the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.” (Direction, paragraph 2.10(c))
General deterrence, the Direction continues, is intended to deter others from committing the same or similar offences (paragraph 2.11(a)).
Consideration must be given to the second primary consideration i.e. the expectations of the Australian community as they have been identified by the Minister 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 a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. …” (Direction, paragraph 2.12)
The third primary consideration relates to the best interests of a child but there is no child in this case whose interests need to be taken into account.
In addition to the primary considerations, the Direction sets out other considerations that must be considered. These other considerations are considered by the government to be relevant but to be of less individual weight than the primary considerations. In so far as they are relevant in this case, they include:
“(a) the extent of disruption to the non-citizen’s family, business and other ties to the Australian community;
Article 23.1 of the International Covenant on Civil and Political Rights (ICCPR) provides that:
‘The family is the natural and fundamental group unit of society, and is entitled to protection by society and State.’
Article 17.1 provides that:
“No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.’
(b) …
(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;
(d) family composition of the non-citizen’s family, both in Australia and overseas;
(e) …
(f) …
(g) …
(h) any evidence of rehabilitation and any recent good conduct;
(i) whether the application is for a temporary visa or permanent visa;
(j)the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and
(k)…” (Direction, paragraph 2.17)
The manner in which I am required to weigh the considerations was considered by the Full Court of the Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 (Branson, North and Stone JJ) in the context of the primary consideration relating to the best interests of the children. The Full Court said:
“32. An identification by the Tribunal of what the best interests of Mr Wan’s children required, and a recognition by the Tribunal of the need to treat such interests as a primary consideration, would not have led inexorably to a decision by the Tribunal to adopt a course in conformity with those interests. That is, even had the Tribunal concluded that the best interests of the children indicated that Mr Wan should be granted a visa, it was legally open to it to refuse to grant Mr Wan a visa. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan’s children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan’s children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.
33. The written reasons of the Tribunal suggest that it regarded the expectations of the Australian community as a primary consideration (indeed, it might be thought, the primary consideration) in the exercise of the discretion to grant or to refuse to grant Mr Wan the visa for which he had applied. The Tribunal was entitled to regard the expectations of the Australian community as a primary consideration provided that it did not overlook that, on the procedure which it had adopted, procedural fairness demanded that it act on the basis that the best interests of Mr Wan’s children were a consideration of equal significance (ie also a primary consideration). So, for example, the Tribunal might have concluded that the best interests of Mr Wan’s children required that Mr Wan be granted the visa, but that the damage to their interests that would flow from his being refused the visa would be of only slight or moderate significance. If the Tribunal had also concluded that the expectations of the Australian community were that a non-citizen who engaged in conduct of the kind engaged in by Mr Wan would not be granted a visa, and that a decision to grant such a visa would be a most serious affront to the expectations of the Australian community, it would have been entitled to conclude that, in the circumstances of the case, the best interests of the children were outweighed by the strength of community expectations.” (page 142)
Should VAQ be refused a visa on the basis of his not passing the character test?
I will begin with the first primary consideration of protecting the Australian community. That requires me to have regard in the first instance to VAQ’s conduct and the seriousness or otherwise of the offences of which he has been convicted. VAQ did not address the offence at all during the second hearing but focused instead on his other conduct and particularly his more recent conduct. I have considered afresh his conduct that led to his convictions as I cannot put it aside simply because he has shown other conduct which has been commendable. Having done that as a separate exercise, I have reached the same view of it as I did on the first occasion and for the same reasons. Consequently, I will set out the relevant passage from my previous reasons for decision:
“35. During the hearing, [VAQ] disputed that he had told the victim of the rape, L, that he would kill her and only get two years. He said that he did not speak enough English to say that. His cousin and brother as well as their wives also disputed the view of the facts as put forward by Judge Duckett in his sentencing remarks and effectively suggested that L was a willing participant in the events and effectively questioned her morals. [VAQ] did not question her morals but did question why underage girls would be at a disco. Quite apart from the fact that L did not have an opportunity to defend her name in the hearing, it is not necessary that she be given that opportunity. That is so because I cannot make a finding contrary to the County Court conviction and the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based. This is the effect of the judgement of the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 (Branson, Lindgren and Emmett JJ). In view of that, I cannot, and do not, accept that L was in any way a willing participant in the sexual assault on her. She was, as [VAQ] acknowledged when he pleaded guilty to the offence of rape, not a willing participant in any sense of the word. [VAQ] claimed that he was sick and drunk and said that, for a while, he did not know what he had done and that he had done anything bad. This explanation was rejected by Judge Duckett and I must reject it also.
36. The facts as set out by the sentencing judge reveal a series of events resulting in great pain and suffering for his victims and particularly for L. They have left L with ongoing feelings of fear and insecurity. The sentence imposed by Judge Duckett indicates that his offences are not at the extreme end of seriousness in that, in relation to rape, he imposed one fifth of the maximum sentence that he could have imposed and a much lesser proportion in respect of kidnapping and the three counts of intentionally cause injury. Even so, a sentence of five years for rape indicates that he did regard it as a serious offence. So too does the Minister for he states in his Direction that sexual assault is a serious offence regardless of whether there was violence or not. In the case of [VAQ’s] rape of L, it was, on Judge Duckett’s findings indicated in his sentencing remarks, an act preceded by violence and attended by violence. It was an act that was inexplicable and the reasons put forward by [VAQ] at the sentencing hearing were rejected by Judge Duckett as justification or explanation for his actions. Taking all these matters into account, I have concluded that [VAQ] has been convicted of a serious offence.”
The seriousness of VAQ’s conduct is one thing but the likelihood that he may repeat the conduct is another. Judge Duckett could not assess whether VAQ would re-offend when he handed down his sentencing remarks on 23 September, 1999. That was some four years ago. On some views, that is a substantial period of time but almost three years of it were spent in prison. The last year has been spent at the Detention Centre where those involved in the Community Gardens Projects speak highly of his involvement with the programme, his willingness to assist others and his kind and considerate nature. That does not fit the person who committed crimes inflicting great pain and suffering on his victims. It did not fit the person who was known to the witnesses called to give evidence at his sentencing hearing as to his quiet, non-aggressive and mild character.
Judge Duckett said that the only explanation for his offences was that he had been drinking and had been under stress due to his mother’s illness, her inability to visit the family in Australia as she had been denied a visa and his having failed an exam. These are matters that arise in life from time to time and do not justify the commission of crimes of the sort committed by VAQ or, indeed of the commission of crimes at all. Would VAQ again lose the quiet, kind and considerate nature that he has shown his family and friends if he were again faced with stressful situations and disappointments in his life? One difficulty that I have with this case is that VAQ has not lived in the open community since 1999. It can reasonably be expected that he will have faced stresses in his living environment since 1999 both in prison and in the Detention Centre. There is every indication on the evidence that he has not resorted to any inappropriate behaviour in coping with those stresses but there is one important difference between the environments in which he has spent the last four years and the general community. That is that they have been structured environments. Through the circumstances of first his imprisonment and then his detention, he has not been tested in an environment where he must provide his own structure and moderate his own behaviour.
Another difficulty that I have with this case is that VAQ is reluctant to speak of past events and gives the appearance of wanting to put his past behind him. Again, I adopt what I said in my previous reasons:
“… That is understandable but he is slow to show remorse for his actions. The only time it was apparent that he had remorse for what he had done occurred when he said that it was not a matter of his saying that he was sorry but of showing that he was sorry in the future. He said that he had made a mistake and had been imprisoned. The difficulty that I have with [VAQ’s] manner of showing what remorse he may have is that it indicates a limited understanding of what he has done and its effect on others. It shows more his understanding of the effect that it has had on him.. His referees speak very highly of his personal qualities but not …[one] mentions the offences of which he was convicted and their nature. They mention his hard work and his respectable family but make no mention of how they view his past behaviour and how that may affect his future behaviour. There was no evidence in the documentary material indicating that [VAQ] had undertaken any courses to assist him in not re-offending on his release. [VAQ] said that he had done so but did not take the matter into account. …” (paragraph 37)
Taking all these matters into account, it is very difficult to assess how he will behave in the Australian community were he to rejoin it. I am of the view that it is far too early to form a view that he is not likely to re-offend were he to face the difficulties and stresses of everyday life in an uncontrolled environment in the general community. Having heard VAQ for the second time and in circumstances that it is reasonable to expect he found stressful, I am of the view that he has not learned to handle them well at all. That too is understandable and he apologised for raising his voice. Of some concern, though, was his explanation that it was “just something I could not control”.. Taking all matters into account and at this stage of his life and experience, I have reached the conclusion that, if faced with stressful situations, there is a risk that VAQ would engage in behaviour that is unacceptable to the Australian community and that he would go further and re-offend..
This is a case in which refusal of a visa to VAQ may act as a deterrent to others who may be tempted to follow his footsteps and commit offences against other members of the community. It is apparent from Judge Duckett’s remarks that the offences were quite widely known in the community in which VAQ lived. Given VAQ’s links with that community, it is likely that a refusal would become known in that community as well as beyond it.
The second primary consideration concerns the expectations of the Australian community. VAQ spoke at the previous hearing of his expectation that he be given a “second chance” to live a good life after his release from prison just as his fellow inmates would have a second chance on their release. VAQ, though, is not an Australian citizen and so is not automatically entitled to resume his place in the Australian community and to get his “second chance” to live a good life within it. He had yet to become a permanent resident in Australia when he breached its laws and opened himself to the possibility of being refused a visa under the provisions of s. 501 of the Act. Indeed, he was entitled to be in Australia for the purposes of study but not beyond that time. That people be given a second chance is part of the expectations of the Australian community but it is only part. It also expects that people will not violate the trust that it places in them when it allows people to join it on any basis. VAQ has sorely breached that trust. His offences have shown that members of the Australian community have suffered at his hands and have done so in circumstances in which the sentencing judge found no justification for his actions. Having regard to those aspects together with my assessment of the likelihood of his re-offending in the future, I am satisfied that the Australian community would expect that VAQ not be permitted to stay.
VAQ’s own circumstances are also relevant. At the previous hearing, I made a number of findings as to VAQ’s life and prospects in Australia and in Albania. My previous conclusions were:
“40. If … [VAQ] were permitted to remain in Australia, I am satisfied that he would have the support of his brother and cousin and their families as well as of the other people who gave him references. As I am satisfied that he is a hard worker, he would presumably have little difficulty in finding employment. As a result, he would be able to perform his duties as head of the family in a very practical way for the members of his family in Albania. He would be able to support them by sending money to them as, I find on the basis of Ms …’s letter, his father did before he died. For his family in Australia, he would be able to partake in their lives as head of the family.
41. If he were to return to Albania, he would find a very different state of affairs from those he left in 1995. He says that he would be concerned about his safety because of the work he did as a driver. I accept that he is concerned. I also accept that he may have difficulty finding work. His life will be very different from that which he had in Australia before his imprisonment. I accept that it will be hard and I accept that he will be parted from the family that he has in Australia. …”
VAQ now seeks only to stay in Australia for a short time so that he can get his affairs in order. That is somewhat at odds with his previous concerns regarding what would happen on his return to Albania and his wish to be with family members in Australia. It is also somewhat at odds with his actions in relation to his protection visa. As I understand the situation, a delegate of the Minister refused his application for a protection visa on 21 May, 2003. An application seeking judicial review of that decision was dismissed by Merkel J on 3 October, 2003 but VAQ has lodged an appeal against that dismissal. Whatever the situation, I cannot consider the matter on any basis other than that of the decision under review. That is that VAQ’s application for a Bridging Visa made in association with his application for a protection visa has been refused.
I have considered VAQ’s case both in light of the views he expressed at the first hearing regarding his personal situation and those he expressed at the second. Having regard to those at the first, I have concluded that considerations relating to the protection of the Australian community outweigh the hardship and difficulties that he and his family both in Australia and Albania will face because of his return.
Therefore for these reasons, I have decided that the discretion whether or not to refuse to grant him a visa should not be exercised in his favour. That is to say, he should be refused a visa on the basis that he does not pass the character test and I affirm the decision of the respondent dated 9 December, 2002.
I certify that the forty-six preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie
Signed: ................................................................
P. Paczkowski Associate
Date/s of Hearing 10 December, 2003
Date of Decision 21 January, 2004
For the Applicant self representedSolicitor for the Respondent Ms J. Greaves
Blake Dawson Waldron
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