Vinod and Minister for Immigration and Border Protection (Migration)

[2017] AATA 925

Vinod and Minister for Immigration and Border Protection (Migration) [2017] AATA 925 (19 January 2017)

Division:                 GENERAL DIVISION

File Number(s):      2015/6781

Re:  Shakeela Vinod

APPLICANT

And  Minister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:                 Deputy President J W Constance

Date:  19 January 2017

Place:  Sydney

The decision under review, being the decision made 21 December 2015, not to exercise the discretion to grant Mr Sharma’s application for a Subclass 600 (Visitor) visa in the tourist stream, is affirmed.

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

Deputy President J W Constance

CATCHWORDS

MIGRATION – visa refusal – tourist visa – character test – substantial criminal record – attempting to pervert the course of justice – common assault – whether discretion to refuse visa should be enlivened – protection of the Australian community – best interests of minor child in Australia – daughter completing schooling in Australia – expectations of the Australian community – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 27

Migration Act 1958 (Cth) ss 499, 501(1), 507(6), 501(7)

SECONDARY MATERIALS

Ministerial Direction No. 65 issued 22 December 2014

REASONS FOR DECISION

Deputy President J W Constance 19 January 2017

INTRODUCTION

1. Ms Vinod has applied to the Tribunal to review a decision of a delegate of the Minister to refuse to grant a tourist visa to her brother, Mr Sharma. Ms Vinod is entitled to make this application as her interests are affected by the decision.1

1. Mr Sharma lives in New Zealand. He applied for the visa to permit him to visit Ms Vinod and other family members living in Australia.

1. For the reasons which follow the decision under review will be affirmed.

1 See section 27 of the Administrative Appeals Tribunal Act 1975 (Cth).

BACKGROUND

1. Mr Sharma is 45 years old. He is a resident of New Zealand. He has been convicted of five criminal offences committed in New Zealand.

Convictions for attempting to pervert the course of justice

1. On 2 April 2004 Mr Sharma was convicted of two counts of attempting to pervert the course of justice. Both offences were committed in November 2002. He was sentenced to imprisonment for 14 months on each count, to be served concurrently.

1. Potter J., the Sentencing Judge set out the facts as follows:

2[In] November 2002 [Mr Sharma] faced the breakup of his marriage and a custody dispute with his wife concerning their two young children. His view was that he should have the custody of the children but he made the assumption that the Family Court was unlikely to award him custody. He therefore considered how he could provide evidence which would favour him as the custodial parent.

3He instructed a private investigator to follow his wife to ascertain to what extent she was working and thus not herself caring for the children, a matter about which [Mr Sharma] stated he held concerns. The surveillance ceased when his wife approached the private investigator and asked whether he was following her. [Mr Sharma] asked that private investigator for referral to another private investigator. By reference to the yellow pages Auckland Investigations Limited was located. The principal of that company was Mr Daniel Thompson. [Mr Sharma] telephoned first Mr Thompson’s son and then Mr Thompson and, after insisting on the urgency of the matter, arranged to travel to Mr Thompson’s home in Clevedon to meet with him there since he was working from home that day, 18 November 2002.

4[Mr Sharma] instructed Mr Thompson that he required a special report that would describe sexual abuse by an old man who was living at the house where his wife now resided and would also describe physical  abuse in respect of [Mr Sharma’s] young daughter by his wife. [Mr Sharma] provided considerable detail as to what the special report should contain. He advised that he required it in relation to the custody dispute with his wife to provide evidence for the Family Court. Mr Thompson stated to [Mr Sharma] that he would not be able to prepare such a report but he might have an associate who would and that he would try to arrange a meeting with the associate. [Mr Sharma] asked him to do so.

5Mr Thompson immediately after the meeting with [Mr Sharma] reported the matter to the Police. The Police taped conversations between [Mr Sharma] and Mr Thompson on the following day (19 November 2002) where arrangements were made for [Mr Sharma] to see the associate of Mr Thompson. The meeting with the associate, who was in fact Nigel Bennett a Detective Constable with the Police, took place on 21 November 2002 at the office of Mr Thompson. The interview was recorded by the Police. In that

interview [Mr Sharma] reiterated his requirement for a special report and gave extensive detail of the evidence as to sexual abuse by the old man and physical abuse by his wife of his young daughter that should appear in the report. During the interview arrangements were made that [Mr  Sharma] would accompany Nigel Bennett to view the house premises where his wife was residing, following which the special report was to be completed. [Mr Sharma] confirmed at all stages there was no basis for the allegations of sexual abuse or physical abuse which he required to be described in the special report.

6Mr Thompson in the telephone conversation on 19 November had indicated to [Mr Sharma] that the fee for the special report was likely to be $1,000 which [Mr Sharma] had accepted. In the interview with Nigel Bennett [Mr Sharma] explained that he did not have the $500 deposit on that day but would pay it when he saw a draft of the special report. At the conclusion of the interview the Police entered the room and [Mr Sharma] was arrested.

…

15     These offences were premeditated. [Mr Sharma] went to some lengths to achieve his purpose of obtaining a false report. They included detailed instructions of what was to be contained in the report and arrangements to visit the house where his ex wife was residing. He pursued his intent determinedly over a number of days. While Mr Gotlieb submitted that perhaps the private investigator could have adopted more of a counselling [sic] role towards [Mr Sharma], it has to be observed that Mr Thompson’s actions arrested what could have been the commission of a more serious crime with extremely serious consequences for two innocent people who would have been compromised by [Mr Sharma’s] course of action. That one of them was his own young daughter is particularly lamentable…2

Conviction for assault

1. On 19 January 2012 Mr Sharma was convicted of common assault (manually). The offence occurred in December  2010 when Mr  Sharma physically assaulted his wife, causing her a minor physical injury.3 He was released on entering a bond to be of good behaviour for six months.

Convictions for attempting to pervert the course of justice

1. On 11 November 2013 Mr Sharma was convicted of two counts of attempting to pervert the course of justice in December 2010 and February 2011. He was imprisoned for one year and eight months on each count  with the terms of  imprisonment to be served concurrently.

2  Exhibit R3.

3  Exhibit R2.

1. These convictions arose from Mr Sharma preparing and filing a declaration in the New Zealand Family Court following a domestic disturbance involving himself and his wife.

Application for tourist visa

1. Mr Sharma applied for a Subclass 600 (Visitor) visa in the tourist stream in August 2015.

His application was refused by a delegate of the Minister on 21 December 2015.

LEGISLATION

1. The grant of visas to entitle non-citizens to enter Australia is governed by the Migration Act 1958 (Cth). The stated object of the Act is “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.” 4

1. Section 501 of the Act provides, in part:

(1)  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.

(6)    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.

(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…

1. Section 499 provides, in part:

   (1)     The  Minister  may  give  written  directions  to  a  person  or  body  having functions or powers under this Act if the directions are about:

   (a)   the performance of those functions; or

   (b)   the exercise of those powers.

   …

4  Subsection 4(1).

(2A)  A person or body must comply with a direction under subsection (1).

DIRECTION NO.65

1. In exercise of the power given by s 499, the Minister issued Direction No. 65 on 22 December 2014. It provides “General Guidance for decision-makers and the Principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to… refuse a non-citizen’s visa under section 501CA…”.5

1. Paragraph 6.2 provides General Guidance in exercising the discretion to refuse the grant of a visa:

6.2      General Guidance

(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non- citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.

(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501 CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

1. The Principles are set out in Paragraph 6.3:

6.3     Principles

(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

5  Clause 5.

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 vulnerable members of the community such as minors, 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.

1. The manner in which the discretion is to be exercised is set out in Paragraph 7. Informed by the principles in Paragraph 6.3 the decision-maker must take into account the considerations set out in Part B of the Direction. I will refer to these considerations in detail later in these reasons.

1. Paragraph 8 provides that  a visa applicant “should have no expectation that  a visa application will be approved.” The paragraph further provides that “primary considerations

should generally be given greater weight than the other considerations” and that “one or more primary considerations may outweigh other primary considerations”.6

ISSUES FOR CONSIDERATION

1. As Mr Sharma was sentenced to one year and two months in prison, it is not in dispute that he has a “substantial criminal record” as defined by subsection 501(7) of the Act and therefore does not pass the character test in accordance with subsection 501(6). The discretion to refuse the application for a visa, granted by subsection 501(1), is enlivened.

1. The issue I have to decide is whether the discretion to refuse to grant the visa sought by Mr Sharma should be exercised.

CONSIDERATION

1. Part B of Direction No.65 sets out the primary and other considerations I must take into account in deciding whether or not to exercise the discretion to which I have referred.

Primary considerations

1. The Primary considerations are set out in Paragraph 11. They are:

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

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

(c)Expectations of the Australian Community.

Primary consideration (a): Protection of the Australian community from criminal or other serious conduct.

1. Paragraph 11.1 of the Direction provides that “decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.” Consideration is also to be given to the nature and seriousness of the applicant’s conduct

6  Subparagraphs (4) and (5) respectively.

to date and the risk to the community should the applicant commit further offences or engage in other serious conduct.

1. Subparagraph 11.1.1 sets out further principles to which regard is to be had in considering the nature and seriousness of the non-citizen’s criminal offending. These are set out in full in the schedule to these reasons.

1. Between 2 April 2004 and 11 November 2013 Mr Sharma was convicted of four offences involving action by him aimed at seriously interfering with the administration of justice in New Zealand. Each of these offences would have been similarly classified as an offence in Australia. I regard each of these offences as serious.

1. His conduct which led to the convictions in 2004 involved persistent attempts to frame an elderly man with allegations of serious sexual assault upon his own young daughter. His wife, his daughter and the elderly man were all potential victims of his conduct which was heartless and calculating with no regard for its effect upon others.

1. The imposition of a sentence of 14 months imprisonment indicated that the Court regarded the offences as serious. The Sentencing Judge specifically referred to the offences as serious and requiring a custodial sentence.7

1. Notwithstanding his convictions in 2004, Mr Sharma was again convicted of offences involving the possible perversion of the course of justice. The offences occurred in late 2010 and early 2011. A longer term of imprisonment was imposed, in this case one year and eight months. Mr Sharma was incarcerated for 10 months of the sentence. Again, it appears that one of the victims of his criminal conduct was his former wife.

1. As mentioned above, Mr Sharma was convicted of assaulting his wife. The events giving rise to the conviction occurred in December 2010. This was a crime of violence and committed against a family member.

1. Police records indicate that at the time of the assault:

·Mr Sharma yelled obscenities at his wife such that she left the house in an attempt to avoid any further confrontation;

·Mr Sharma pulled his wife from the car in which she was seated;

·Mr Sharma told his wife that he would “bash her more than he had the other day”;

·when his wife attempted to run away from Mr Sharma he pulled her by her hand causing her to fall to the ground;

·he grabbed his wife by both hands and dragged her towards the house, despite her continuing to scream and plead for him to let her go; Mr Sharma then pushed his hand inside her mouth causing her to gag and to suffer minor bleeding from the mouth;

·when Mr Sharma’s mother intervened Mr Sharma left his wife lying on her back in the driveway.8

1. The cumulative effect of these convictions is that  Mr Sharma was convicted of five separate offences which occurred over a period of just over eight years. Despite his repeated offending there is no evidence to suggest that there was any trend of increasing seriousness in Mr Sharma’s criminal activity.

1. Should Mr Sharma commit further offences of the type of which he has been convicted, there is a risk of physical harm to individual members of the Australian community should he engage in action which amounts to an assault. Further, a repeat of his conduct relating to the administration of justice involves the risk of considerable harm to any individual or individuals in respect of whom Mr Sharma may involve, or attempt to involve. His claim that he will be entering Australia for only short visits does not address this concern. A tourist visa would allow Mr Sharma to spend extended periods of time in Australia. His past conduct indicates a lack of respect for the law and I am not satisfied that he would not commit offences against Australian law whilst in this country. Against this is to be balanced the evidence that he has not reoffended since January 2011, a period of six years.

8  Exhibit R2.

1. Mr Sharma argues that he is not a threat to Australia’s citizens or property. He does not have a criminal record in either Fiji (where he was born) or in Australia (where he lived and studied for three years commencing in 1993). He did not come to the attention of the authorities while living in Australia. His taxes contributed to Australia’s coffers when he lived here.

1. In late 2011 and early 2012 Mr Sharma completed an anger management course. He has full-time employment in New Zealand and performs part-time duties as a Hindu Priest.

Primary consideration (b): The best interests of minor children in Australia.

1. The matters to be considered are set out in paragraph 11.2 of the Direction; they are set out in the schedule to these reasons.

1. The only minor child in Australia whose interests may be affected by a decision in relation to Mr Sharma’s visa application is his daughter, who is almost 17 years of age. She gave evidence at the hearing of this application. As Ms Sharma began to reside in Australia after the parties filed documents in this application I gave them leave to file written submissions in relation to her best interests.

1. I am satisfied that Mr Sharma has the care of Ms Sharma and that he plays a positive parental role in their relationship.

1. Ms Sharma was living with Mr Sharma in New Zealand until mid-June 2016. At that time she travelled to Australia to complete her schooling. She is living with her aunt, Ms Vinod. Initially Mr Sharma did not agree with this arrangement and it caused some friction between them. However finally he agreed and he paid for Ms Sharma’s flight to Australia.

1. With submissions filed on 23 August 2016 Mr Sharma filed a statement by Ms Sharma made that day.  It includes the following:

I realize [sic] that I am a bit immature and have done things that I am not proud of. I have not attended school on many days as I find it difficult to continue without the support of my father. I keep thinking about him and became depressed many times. Although I want to continue with my education, i find it very difficult without the continued support of my father. Only my father has supported me through everything that has been going on.

For me, financial support is not everything. My father has always been there for me. I have not seen him continuously for about 7 months. This will become longer considering that I wish to complete my studies here in Australia. I have never been away from my father for this amount of time and i can no longer continue like this until I see my dad in person. I am also not doing well at school due to this as I am always worried and I keep thinking about my dad. My father is not a rich person he has one job and finds it difficult to make ends meet, yet he supports me financially in Australia. If he was paying my airfares for me to visit him all the time he would struggle even more. Furthermore, I may not be able to keep up with my studies. I am already facing difficulty concentrating and would take a toll on my studies if l was wasting time making overseas trips.

Although I have my aunt in Australia it is not the same to have a dad around when needed.9

1. I have taken Ms Sharma’s statement into account, but with the reservation that it has not been tested by cross-examination. Further the wording of the statement causes me concern as to the possibility that it was influenced by Mr Sharma.

1. Although Ms Sharma says she is suffering from being separated from her father, it was her decision to come to Australia to complete her schooling rather than to remain in New Zealand with her father. There is no suggestion that she is not free to return to New Zealand if she wishes. If she remains in Australia it is reasonable to assume that Mr Sharma will be able to use the funds he would have spent travelling to Australia on travel for Ms Sharma to visit him in New Zealand.

1. I am satisfied that Ms Sharma will be able to maintain contact with Mr Sharma and her family in New Zealand, including returning to New Zealand for visits. Ms Sharma did not suggest that she intended to reside in Australia on a long-term basis.

Primary consideration (c): Expectations of the Australian Community

1. Clause 11.3 of the Determination provides:

(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk 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 application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a

9  Exhibit T2.

visa. Decision-makers should have regard to the Government’s views in this respect.

1. Although the criminal conduct in which Mr Sharma has engaged is serious, it is not at the upper end of the scale of serious offences. However, in my view the conduct is of such seriousness that, in the view of the Australian community, there would be an expectation that Mr Sharma not be allowed to come to Australia. The Australian community has a low tolerance of offending involving domestic violence as well as repeated disregard for the legal system.

1. The expectation that Mr Sharma not be granted a visa would be strengthened in view of the warning given to Mr Sharma on the occasion of his being granted a tourist visa in 2010.10

1. In November 2009 Mr Sharma applied to the Minister for a tourist visa to enter Australia.

By notice of 8 April 2010 he was advised that the Minister intended to examine whether there were grounds to refuse his application. Mr Sharma responded to this notice. By letter of 6 May 2010 a delegate of the Minister wrote to Mr Sharma in the following terms:

Your comments were carefully considered and taken into account. On this occasion, a delegate of the Minister has decided not to exercise their discretion to refuse your visa application under subsection 501(1) of the Act.

However, you are warned that if you engage in any further conduct that might bring you within the scope of section 501, cancellation of your visa may be considered. Consideration may also be given to refusing any future visa applications. Please note that disregarding this warning may weigh heavily against you if the Minister or a delegate considers your case in the future. A copy of section 501 of the Act is attached for your information.  [Underlining added].

Despite this warning, within eight months Mr Sharma committed two offences of similar nature to those committed by him in 2004.

Other considerations

1. Under the heading “Other considerations – visa applicants” Paragraph 12 of the Determination provides:

(1)In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

10  Exhibit T1, document 10.

(a)International non-refoulement obligations;

(b)Impact on family members;

(c)Impact on victims;

(d)Impact on Australian business interests.

The sub-paragraphs providing further  detail in  relation to each of  the considerations referred to above are set out in the schedule to these reasons.

1. There is an obvious drafting error in the opening words of this paragraph. They refer to “deciding whether to cancel a visa”, rather than to deciding whether to refuse a visa. Nevertheless, it is clear that it was the intention of the Minister that this paragraph refers to an application for the grant of a visa. The paragraph is in Part B which specifically relates to visa applications. Further, sub paragraphs (2) – (6) inclusive all refer to a visa application.

International non-refoulement obligations

1. There are no international non-refoulement obligations relevant in this application.

Impact on family members

1. I have already dealt with the impact of a decision to refuse Mr Sharma’s application on his daughter.

1. Both Mr Sharma and Ms Vinod gave evidence that refusal to grant a visa to Mr Sharma would impact on his ability to visit his two sisters and his extended family in Australia. I accept that this is so but I am not satisfied that any impact would have any long-term or significant detrimental effect on any of the family members. In reaching this conclusion I have taken into account that Ms Vinod’s health does not permit her to travel to New Zealand.

Impact on victims

1. There is no evidence to allow me to make any finding in relation to any possible impact of a decision to refuse or to grant a visa to Mr Sharma on the victims of Mr Sharma’s offences.

Impact on Australian business interests

1. There is no evidence to suggest that a refusal to grant a visa would have any impact on Australian business interests.

Any further considerations

1. I have given consideration to several letters of reference in support of Mr Sharma’s application. These letters appear in Exhibit T1. Whilst they attest to Mr Sharma’s parenting skills, hard work and contribution to his community they do not provide reasons for granting Mr Sharma’s application.

DISCUSSION

1. As I have already set out, I am to be informed by the Principles in Paragraph 6.3 in exercising the discretion to grant or refuse Mr Sharma’s application for a tourist visa.

1. These Principles include that being able to come to Australia is a privilege conferred 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.”

1. Unfortunately Mr Sharma has demonstrated a propensity to breach the law. Having been imprisoned for two offences relating to the administration of justice, some years later he committed two more offences, again relating to the administration of justice. Of even greater concern is the fact that Mr Sharma has been convicted of an offence involving domestic violence.

1. In lengthy written submissions to the Tribunal11 Mr Sharma sought to minimise the seriousness of his offences. I am satisfied that he does not appreciate the seriousness of his past conduct or genuinely feels remorse for it.

1. In a letter to the Tribunal of 22 December 201512 Mr Sharma claims to have been “set up” in relation to the offences of attempting to pervert the course of justice committed in 2010 and 2011. Further, he described the assault on his wife as a “minor technical assault” in which his only physical contact with her was his taking her hand to prevent her falling.

1. It is not the role of the Tribunal to determine issues previously decided by the Courts in criminal proceedings. Mr Sharma has been convicted of five serious offences and has served two terms of imprisonment. His explanations are inconsistent with the sentences imposed and I do not accept his evidence in this regard. His attempts to mislead the Tribunal indicate a lack of respect for the system of administration of Australia’s laws.

1. I have taken into account that a refusal of his application for a tourist visa will have some impact on members of his family in that they may not be able to meet with him personally as often as they may wish. In particular I have considered that Ms Sharma is now living in Australia. However I am not satisfied that there will be any significant impact on any family member.

1. Taking into account all of the relevant considerations I have come to the conclusion that the discretion to grant Mr Sharma’s application for a visa should not be exercised. His history of serious offending, together with his attitude to those offences and his apparent lack of respect for our legal systems, far outweigh the considerations relating to his daughter and other family members. I am of the view that in the circumstances of this matter the Australian community would expect that a visa not be granted.

CONCLUSION

1. The decision under review, being the decision made 21 December 2015, not to exercise the discretion to grant Mr Sharma’s application for a Subclass 600 (Visitor) visa in the tourist stream, will be affirmed.

11  Exhibit T1.

12  Exhibit T1, document 3.

I certify that the preceding 63 (sixty - three) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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

Associate

Dated: 19 January 2017

Date(s)ofhearing:	16 August 2016
Datefinal submissions received:	23 August 2016
Applicant:	In person
Solicitorsforthe Respondent:	Clayton Utz

SCHEDULE

11.1.1The nature and seriousness of the conduct

(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:

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

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

c)Where the non-citizen is in Australia, that a crime committed while

the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197 A of the Act;

d)The principle that any conduct that forms the basis for a finding that

a non-citizen does not pass a subjective limb of the character test is or is not of good character under section

501 (6)(c), is considered to be serious;

e)The sentence imposed by the courts for a crime or crimes;

f)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

g)The cumulative effect of repeated offending;

h)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

i)Where the offence or conduct was committed in another country,

whether that offence or conduct is classified as an offence in Australia.

11.2Best interests of minor children in Australia affected by the decision

(1)Decision-makers must make a determination about whether refusal is, or is not, in the best interests of the child.

(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant the visa is expected to be made.

(3)If there are two or more relevant children, the best interests of each child

should be given individual consideration to the extent that their interests may differ.

(4)In considering the best interests of the child, the following factors must be considered where relevant:

a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

b)The extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time

until the child turns 18), and including any Court orders relating to

parental access and care arrangements;

c)The impact of the non-citizen’s prior conduct, and any likely future  conduct, and whether that conduct has, or will have, a negative impact on the child;

d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

e)Whether there are other persons who already fulfil a parental role in relation to the child;

f)Any known views of the child (with those views being given due

weight in accordance with the age and maturity of the child);

g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

12.1International non-refoulement obligations

(1)        A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.

(2)        The existence of a non-refoulement obligation does not preclude refusal of a non-citizen’s visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the nonrefoulement

obligation exists.

(3)        Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s501 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa).

(4)        Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to detennine whether non- refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.

(5)If, however, the visa application being considered for refusal is a Protection visa application, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).

(6)In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa application were refused, they would face the prospect of indefinite immigration detention.

12.2Impact on family members

(1)Impact of visa refusal on immediate family members in Australia,

where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely;

12.3Impact on victims

(1)Impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where that information is available and can be disclosed to the non-citizen being considered for visa refusal;

12.4Impact on Australian business interests

(1)Impact on Australian business interests if the non-citizen’s visa application is refused, noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a

major project or delivery of an important service in Australia.