VRHW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2022] AATA 2747

VRHW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2747 (23 August 2022)

Division:GENERAL DIVISION

File Number:          2022/4792

Re:VRHW

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member K Raif

Date:23 August 2022

Place:Sydney

The decision under review is affirmed.

................................SGD........................................

Senior Member K Raif

CATCHWORDS

MIGRATION – refusal to grant a Class WE Bridging E visa (BVE) – where visa was refused under s 501(1) because applicant did not pass character test – substantial criminal record – Ministerial Direction No. 90 – primary considerations – protection of the Australian community – seriousness of offending and future risk – expectations of the Australian community –  other considerations – international non-refoulement obligations – extent of impediments if removed – links to the Australian community – the strength, nature and duration of ties to Australia  – refusal of visa is not revoked - decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

CASES

Plaintiff M1/2021 v Minister for Home Affairs (2002) 400 ALR 417; [2022] HCA 17

Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336

WKMZ v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55

SECONDARY MATERIALS

Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Senior Member K Raif

23 August 2022

BACKGROUND

1. This is an application for review of the decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) to refuse to grant a Class WE Bridging E visa (BVE) to the applicant.

2. The applicant is a national of India, born in January 2000. He was granted a Student visa and arrived in Australia as a holder of that visa on 7 August 2018. In March 2019 the applicant was convicted of several offences and in February 2020 his Student visa was cancelled under s 116 of the Migration Act 1958 (Cth) (the Act). The applicant sought review of that decision and the decision to cancel the visa was affirmed by the Tribunal. On judicial review, the application was dismissed by the then Federal Circuit Court and is presently on appeal at the Federal Court of Australia.

3. In May 2020 the applicant made the application for a BVE. That application was refused by the delegate and the decision subsequently affirmed by this Tribunal in June 2020. In April 2022 the applicant made another application for a BVE on the basis of his ongoing judicial review proceedings. On 7 June 2022 the delegate of the Minister refused to grant the applicant the BVE, finding that the applicant did not meet the character test. It is that decision that is the subject of the present review.

4. The issues before the Tribunal are

   a.    does the applicant pass the character test as required by s 501 of the Act and,

   b.    if he does not, whether the Tribunal should exercise its discretion to refuse to grant the applicant the visa.

   RELEVANT LAW

5. Pursuant to s 501(1) of the Act, the Tribunal acting as the decision-maker may affirm a decision to refuse the grant of a visa if satisfied that the applicant does not pass the character test.

6. The character test is set out at s 501(6) of the Act, and relevantly prescribes at s 501(6)(a) that a person will not pass the character test if a person has a substantial criminal record. That term is defined in subsection (7) of s 501. Relevantly to this case, s 501(7)(d) defines a substantial criminal record if a person has been sentenced to 2 or more terms of imprisonment where the total of those terms is 12 months or more.

7. Should the applicant not satisfy the character test, the discretion to refuse the visa under s 501(1) of the Act is enlivened. The exercise of the discretion is governed by the considerations set out in Direction No 90 – Visa Refusal and Cancellation under s 501 and Revocation of Mandatory Cancellation of a Visa under s 501CA (Direction 90). Direction 90 is binding on decision-makers, including this Tribunal, performing functions or exercising powers under s 501 of the Act.

8. Direction 90 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions.  The principle set out at cl 5.2(2) of Direction 90 states that:

   Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

9. The primary considerations which are set out in cl 8 of Part 2 of Direction 90 are:

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

   b)Whether the conduct engaged in constituted family violence;

   c)The best interests of minor children in Australia; and

   d)Expectations of the Australian community.

10. The other considerations which are set out of cl 9 in Direction 90 are:

    a)International non-refoulement obligations;

    b)Extent of impediments if removed;

    c)Impact on victims;

    d)Links to the Australian community including:

    a.Strength, nature and duration of ties to Australia;

    b.Impact on Australian business interests.

11. Decision-makers should ‘generally’ give greater weight to primary considerations than other considerations. Further, one primary consideration may outweigh other primary considerations: cl 7(2) and (3) of Direction 90.

    DOES THE APPLICANT PASS THE CHARACTER TEST?

12. Information before the Tribunal indicates that on 28 March 2019 the applicant was convicted, in the Local Court of NSW at Burwood, of the following offences

    (a)Stalk / intimidate intend fear physical etc harm (personal) – 2 counts

    (b)Possess child abuse material – 1 count

13. The applicant was sentenced by the District Court on 31 July 2019 to 6 months imprisonment to be serviced by way of Intensive Corrections Order on each count (concurrent) in relation to the first offence and to 12 months Community Correction Order in relation to the second offence.

14. The applicant has thus been convicted of two instances of stalking / intimidate with intent to cause fear / physical harm and one count of possessing child abuse material. The Court Order Notice of the District Court of NSW shows that on appeal, the sentences were varied.

15. The applicant concedes that he does not pass the character test. Having regard to the above evidence, the Tribunal finds that the applicant has been convicted of offences for which he was sentenced to 2 or more terms of imprisonment where the total of these terms was 12 months or more. The Tribunal finds that this constitutes a ‘substantial criminal record’ as defined in s 501(7)(d). Section 501(7A) provides that if 2 or more terms of imprisonment are to be served concurrently, the whole of each term is to be counted in working out the total terms. Thus the applicant’s two concurrent terms of imprisonment of 6 months constitute a total of 12 months or more.

16. The Tribunal finds that the applicant has a substantial criminal record and that he does not pass the character test.

    EXERCISE OF DISCRETION

17. The applicant submits that he does not pose a risk to the Australian community and that there is sufficient material to find that a positive decision can be made in his favour. The applicant refers to the possibility of prolonged and even indefinite detention and claims that, given the broad discretion available to the Tribunal, there is sufficient material to exercise discretion in his favour.

18. The respondent states that the protection and expectation of the community are considerations that outweigh other considerations that weigh in favour and for these reasons the decision under review should be affirmed. 

19. The Tribunal’s considerations are set out below with regard to Direction 90.

    Primary considerations

    Protection of the Australian community

20. Sub-clause 8.1 of Direction 90 provides as follows:

    Protection of the Australian community

    (1)       When considering protection of the Australian community, decision-makers should keep in mind 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….

    (2)       Decision-makers should also give consideration to

    a)the nature and seriousness of the non-citizen's conduct to date; and

    b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

21. The applicant has been convicted of two counts of stalking / intimidation and one count of possession of child abuse material.

22. There is before the Tribunal a copy of the Apprehended Personal Violence (Final) Order issued in relation to the applicant in March 2019 for protection of another person for a period of 5 years. That order remains in place at present.

23. The Minister submits that the offences are serious and the fact that the applicant was initially sentenced to  18 months term of imprisonment emphasises the seriousness of the offence but in the Tribunal’s view, it is more appropriate to have regard to the sentencing on appeal rather than the sentence that was overturned. The applicant’s sentence was reduced on appeal and he was given a non-custodial sentence. 

24. The Tribunal has had regard to the sentencing remarks of His Honour Acting Judge Delaney who refers to the nature of offending in relation to stalking and intimidating of the child as a ‘serious matter’. His Honour refer to the child abuse material as being ‘at a much lower level than commonly experienced’.

25. When considering the nature and seriousness of the applicant’s conduct to date, the Tribunal has had regard to the NSW Police Facts Sheet. In the course of the hearing the applicant responded to a series of questions in relation to the events outlined in the Police Facts Sheet and he generally agreed it is an accurate description of events (the Tribunal acknowledges some concerns raised in the applicant’s Statement of Facts, Issues and Contentions (SFIC)).

26. The Facts Sheet states that in September 2018 the applicant approached the victim, who was 12 years of age, engaged in a conversation with her and obtained her mobile number, which he recorded in his own mobile phone. It is stated that the applicant called the victim several times during the day and messaged her. It is stated that some weeks later the applicant again approached the victim asking if she wanted to be a friend and suggesting that they meet in the park. The applicant also suggested that she should not inform her parents. It is stated that the victim felt threatened by the applicant’s conduct.

27. The Tribunal considers these offences to be of some seriousness because they involve a minor child (a fact that was well known to the applicant, given that the child was wearing a school uniform during their interactions and stated her age) and such interactions caused the child to feel fearful. The Tribunal is mindful that according to the Police Facts Sheet, and the applicant agrees with that description of events, the child’s father made contact with the applicant following the initial contact and asked the applicant to stop contact, which the applicant agreed to. Despite that, some time later the applicant again made contact with the child at the train station. It cannot be said, in the Tribunal’s view, that the applicant was entirely ignorant of the fact that his conduct was inappropriate, even though he told the Tribunal he did not appreciate during the initial contact that the contact was inappropriate. In the Tribunal’s view, having been expressly told by the child’s father to cease all contact, and having agreed to that, the applicant would have been more aware that his contact was both unwelcome and inappropriate.

28. The applicant’s evidence is that that he was depressed and lonely at the time and wanted to make friends (even though he claims his contact with the child was the only such attempt to find a friend and he has not approached anyone else to form friendships) and he also told the Tribunal he ‘did not think’ about maintaining contact with her. While the Tribunal acknowledges the evidence of the health professionals about the applicant’s circumstances at the time (which is discussed in more detail below), as noted above, the Tribunal does not accept that the applicant was completely unaware of the inappropriateness of his interactions with the child. This is particularly so as the applicant is recorded to have told the child not to inform her parents about their contact. The applicant’s desire to keep the contact hidden from others suggests that he was cognisant that the contact should not have occurred.

29. In these circumstances, the Tribunal finds the stalking / intimidation offences to be serious.

30. The applicant has also been convicted of possessing child abuse material. The Police Facts Sheet indicates that there were approximately seven or eight videos on the applicant’s phone which depicted clearly minor children engaging in sexual activities with adults and it is stated that the children were visibly distressed. The applicant’s explanation is that the material was sent to him by friends through a WhatsApp group and he submits that the nature of the material was not of the most serious nature. The applicant notes that the District Court confirmed the offending was at the lower scale and not for sexual gratification. While there is nothing to suggest that the applicant had sourced the material himself, neither had he taken steps to remove the material from his phone.

31. In his evidence to the previous Tribunal dealing with the refusal to grant the BVE, the applicant stated that he had not seen the child abuse material and was not aware of it. He also appears to have told Mr SB (Psychologist) that he did not view the child abuse material. However, in his evidence to the present Tribunal the applicant confirms that he had seen those videos. The applicant concedes that he was not truthful in his evidence to the previous Tribunal out of fear of being perceived negatively and also because he was depressed, having been in detention for some time. It is of considerable concern to the Tribunal that the applicant appears to admit that he is willing to state whatever he considers would be beneficial to himself. That raises some concern for the Tribunal in relation to the applicant’s evidence about his rehabilitation and remorse. For the purpose of the present consideration, the Tribunal finds that the applicant was aware of the offensive material on his phone and had viewed that material. 

32. The applicant told the Tribunal that due to his severe depression at the time, he did not delete the material and he now knows he made a mistake. As noted elsewhere, the Tribunal accepts that the applicant was depressed at the time of offending and had been diagnosed with other conditions. However, the Tribunal does not accept that, despite these conditions, the applicant was incapable of deleting the offensive material if he wished to do so. The Tribunal is mindful of the applicant’s evidence that soon after coming to Australia the applicant engaged in tertiary study (albeit not very successfully) and was later able to find and perform a number of jobs. The applicant appears to have been able to function in the community and perform activities of daily living. The applicant has not satisfied the Tribunal that he was incapable of deleting the offensive material from his phone.

33. The Tribunal has formed the view that the applicant made a conscious decision to keep the offensive material on his phone. The Tribunal finds that possession of child abuse material is a serious offence.

34. The Minister also refers to the offences being sexual in nature and the vulnerability of the victim but in the Tribunal’s view, there is no probative evidence to support a finding that the stalking / intimidation offences were sexual in nature and nor is it appropriate in the Tribunal’s view to imply a sexual motivation on the basis of the applicant’s conduct. The applicant has expressly denied having sexual interest in children.

35. The Tribunal is mindful of the remarks of the sentencing judge who refers to the offending as being at a lower scale. Nevertheless, the Tribunal has formed the view that the offences were serious because all involved children. The stalking / intimidation offences were in relation to a minor child (and the applicant was under no misapprehension as to the child’s young age and confirms in his evidence to the Tribunal that he was aware she was 12) and caused the child to be fearful. The other offence involved possession of child abuse material and the police report indicates that in the videos the children engaged in sexual activities with adults and appeared to be visibly distressed. The inappropriateness of that material should have been obvious to the applicant, irrespective of any claimed misunderstanding of the Australian cultural norms or his level of maturity.

36. The Tribunal has formed the view (and the applicant appears to concede this in his response to the respondent’s SFIC) that the offences were serious. There is no evidence before the Tribunal to indicate that the applicant’s conduct to date has otherwise been in any way inappropriate.

37. The Tribunal has considered the risk to the community, should the applicant reoffend. As noted above, the Tribunal considers offences against children to be very serious and, should the applicant again engage in criminal conduct or conduct of similar nature, the nature of harm to individuals would be significant, noting the stated effect of the applicant’s conduct on the victim in relation to the first two offences as causing apprehension and fear and the potential for further offending to cause fear and apprehension in others in similar situations.

38. The Tribunal has considered the likelihood of the applicant engaging in further criminal or serious conduct.

39. In oral evidence, the applicant outlined his family and personal background and the circumstances of his life in India prior to coming to Australia. He states that he had many friendships and a supportive family and had no interactions with the police while in India. The Tribunal accepts that evidence and acknowledges that there is no evidence of any other offending or criminal or anti-social conduct either in India or in Australia. 

40. The Tribunal has considered the circumstances in which the stalking / intimidation offences occurred. The applicant told the Tribunal that after coming to Australia, he was waiting for his course to start and he was feeling lonely and depressed and he decided to form friendships. When he approached the girl, he thought he was making friends. Notably, the applicant told the Tribunal that he had not approached any other person to form friendships and it is not clear why, over a reasonably long period of some weeks or even months, the victim was the only person the applicant had approached to form a friendship. The applicant admits that he asked questions of that child and messaged her and called her. When her parents told her not to contact her, he states that he stopped but he met her again six weeks later and approached her at the train station. The applicant repeatedly stated that due to his depression, he could not control his emotions and did not think about his conduct.

41. The Tribunal is mindful that while the two convictions relate to conduct in relation to several incidents involving one child, that conduct occurred over a period of several weeks. The Police Facts Sheet indicates that the child’s father made contact with the applicant and asked him to cease contact, which the applicant did initially, but he again made contact with the child some weeks later. That is, it cannot be said that the conduct was spontaneous and occurred in a single incident when the applicant felt unable to control himself. Rather the contact was sustained and the applicant had the opportunity to consider the nature of his actions (whether or not he had a full understanding of these and of their consequence). 

1. In his submission to the delegate dated 30 May 2022 the applicant notes that he was not required to serve any part of the sentence by way of imprisonment because the court found the risk of reoffending to be low and the offences to be on the lower end of scale so that a custodial sentence was not required, nor appropriate. The Tribunal acknowledges that a custodial sentence was not imposed but, as noted above, considers any nature of offending relating to minor children to be serious.

2. The applicant claims that he now understands the seriousness of his actions and their effects on the community and victims and there is a low likelihood of reoffending or doing harm to the community. The applicant refers to the education and counselling sessions he has completed, stating that he now fully understands the mistakes he has made and is better equipped to deal with these in the future. The applicant also claims that he has gained skills to deal with depression and mental health and that is also the evidence of Mr NG (Psychologist). The applicant states that he does not have any criminal history prior to offending, either in Australia or India. In his statement to the Tribunal dated 5 July 2022 the applicant also expresses remorse for his conduct and his willingness to be law-abiding and never to reoffend. The applicant repeated that in his oral evidence to the Tribunal.

3. The applicant states that he has continually expressed his guilt and remorse and has demonstrated a willingness to learn about the impacts of his offending and had completed a course ‘Child Abuse Recognition, Investigation and Protection’, having understood the severity of his actions and their impact. Evidence of course completion is before the Tribunal and the Tribunal accepts that the applicant had completed the course, as well as several counselling sessions, although the Tribunal is also mindful that the sentencing assessment report (which would have been completed before the applicant undertook the counselling sessions and the course) refers to the applicant displaying lack of insight into his offending, and his attribution of the offending behaviour to unawareness of the law and cultural norms in Australia.

4. The applicant refers to his young age and lack of maturity at the time of offending, noting the psychological report from Mr SB, who refers to the applicant being psychologically immature and lacking emotional resilience or intelligence. The applicant submits that he is not the same person today and outlines the skills he has gained through the completion of the course. He told the Tribunal in oral evidence that he has learned a lot and has ‘learned his lesson’ and he constantly thinks about his mistake and the ways to improve himself. The applicant states that he accepts full responsibility for his conduct, regrets what he has done and he feels guilty all the time about what he has done. He states that this mistake will stay with him his whole life. The applicant states that his conduct affected not only him but his family and he will not make the same mistake in the future.

5. The applicant also relies on the psychological report from Mr NG who expressed the view that the applicant will not reoffend and that he poses no risk to the community. The applicant refers to his engagement with another psychologist, Ms MR, who expressed the view that the applicant has an understanding of his wrong-doing and the effect on the victim and community. In his own statement, the applicant expressed his willingness to continue with the various programs and states that he will not reoffend. The Tribunal has had regard to the evidence of the health professionals, including the reports prepared by Mr NG, Mr SB, and the clinical notes from IHMS. 

6. Mr NG gave oral evidence to the Tribunal. He states that the applicant has been engaged and receptive and willing to practice the strategies suggested. With respect to his assessment that the applicant does not pose a risk to the community, Mr NG states that he had regard to the information presented to him, including information from other professionals who refer to the applicant posing low risk, as well as his own observations and communications with the applicant. Mr NG stated that he cannot completely and one hundred percent  rule out the risk but he considers there is low risk and ‘effectively’ no risk. Mr NG refers to the applicant’s ignorance of cultural norms, gained understanding of his actions and the expression of remorse. Mr NG states that he last saw the applicant around April 2022 and the sessions stopped because he believes the applicant has the skills to cope with his mental health issues.

7. The applicant told the Tribunal that he is constantly working on his improvement. He refers to the counselling sessions with the psychologist in 2019 and the subsequent counselling he received while in Villawood IDC. The applicant states that he learned about his depression and anxiety and how to implement strategies to deal with these conditions and he now knows how to seek professional help in relation to these conditions. The applicant states that going through the criminal system, and having sought psychological help, he realised what mistakes he has made and how to deal with these and he would never repeat the same mistake in the future. The Tribunal also acknowledges the statements from the applicant’s many friends who have expressed the view that the applicant is a good person, that the offending was out of character, and that he is fully reformed and would not reoffend.

8. The Tribunal accepts that the applicant may have better skills and the level of maturity to deal with his mental health now than when he first came to Australia. The Tribunal is also mindful that some time has passed since the offences were committed and there is nothing to suggest that since that time the applicant had committed any other offences or that he had engaged in inappropriate or anti-social conduct. The Minister submits that this may be due to the fact that the applicant had been subject to a correction order and in detention but it cannot be assumed, in the Tribunal’s view, that the applicant’s conduct outside of detention would be different, particularly in relation to the offence of possession of child abuse material which may have been available to the applicant in and out of detention. The Tribunal also acknowledges the applicant’s evidence that he has been on bail for a lengthy period prior to his immigration detention. Thus, the fact that there has been no known prior and subsequent offending may be an indication of a low risk of reoffending.

9. The applicant’s representative also submits that the cancellation issue would always be there, even when the applicant applies for the Australian citizenship and this would be another incentive for the applicant not to reoffend. The Tribunal is prepared to accept that immigration implications may serve as an incentive for the applicant not to reoffend but in the Tribunal’s view, that is not a significant incentive, given that the criminal implications are likely to be more serious and that the applicant’s past criminal conduct would already significantly affect his future immigration options.

10. The Tribunal acknowledges the various psychological reports that had been presented and the Tribunal is prepared to accept that the applicant’s mental health at the time may have contributed to his behaviour. The Tribunal acknowledges that the applicant has now completed a course since the offences were committed and had engaged in multiple sessions with psychologists and the Tribunal is prepared to accept that these may assist the applicant to better manage his conduct and make him more aware of the repercussions of his actions so that the Tribunal accepts that the applicant is now more cognisant of the inappropriate nature of his past conduct and its consequences. In the Tribunal’s view, these matters, as well as the applicant’s stated appreciation of the consequences of his conduct, will act in some way to prevent the repetition of the same conduct in the future.

11. The sentencing assessment report identifies low risk of reoffending and the Tribunal gives that evidence considerable weight.

12. Overall, the Tribunal has formed the view that the risk of reoffending is low. However, the Tribunal has formed the view that the risk remains and is not non-existent. This is because in the various psychological reports the applicant has been identified as being immature and experiencing mental health issues and while the Tribunal acknowledges that time has passed (and the applicant claims his level of maturity has increased) and that he has completed several sessions with health professionals, there is no persuasive evidence that these matters that appear to have contributed to the applicant’s conduct in the past have been completely resolved or will not reoccur in the future. As the applicant has not lived in the community for several months since being placed in detention, his ability to cope with depression and other mental health issues and with the triggers that may be more prominent in the general community, and to apply what he had learned through his psychological counselling, has not been adequately tested. 

13. The Tribunal has formed the view that there is a low risk of reoffending in similar fashion but that the risk continues to exist. This is consistent with the view expressed by Mr NG, who states that there is ‘effectively’ no risk but that risk cannot be ruled out one hundred percent and the findings of other health professionals who refer to ‘low risk’ rather than non-existent risk. The Tribunal finds that should the applicant reoffend (even if there is a low risk of that), the consequences could be significant, given that the seriousness of the conduct and the fact that offences involved minor children.

14. These considerations favour the exercise of discretion to refuse to grant the visa.

    Best interests of minor children

15. There are no minor children who would be affected by the decision to refuse to grant a visa to the applicant and, as such, this consideration is neither in favour nor against the discretion to refuse the applicant’s visa

    Whether the conduct engaged in constituted family violence

16. The Tribunal finds that the conduct engaged did not constitute family violence. This consideration is neutral.

    Expectations of the Australian community

17. Clause 8.4 of Direction 90 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Clause 5.2(3) of the Directions sets out the government’s view in relation to community expectations:

    The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

18. In Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36] Deputy President Block explained:

    …the expectations of the Australian community should be taken to be the expectations of the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.

19. In his submission to the delegate the applicant states, by reference to the psychological reports, that the offences occurred due to his mental state at the time as he was suffering from a Chronic Adjustment Disorder with mixed anxiety and depressed mood. The applicant states that he did not commit any offences out of malice or antisocial personality or hatred. The applicant states that he has been remorseful.

20. The applicant argues that this factor should be given minimal weight against the applicant, given the circumstances of offending (age and mental health) and his rehabilitation. The applicant submits that the Australia community would be ‘more forgiving’ of him.

21. The Minister argues that this consideration weighs heavily against revocation as the applicant has committed serious sexual offences and put members of the Australian community at risk. The Minister refers to non-revocation and that the Australian community would expect that the applicant should not continue to hold a visa. The comments concerning non-revocation appear to be more suitable to circumstances where the issue is the cancellation of a visa and not in the present case where the Tribunal is concerned with visa refusal. Neither does the Tribunal accept that the offences can be classified as being sexual in nature, for the reasons set out above.

22. In considering the expectations of the Australian community, the Tribunal places some weight on the nature of the offences. As noted above, the Tribunal has found the offences to be serious, particularly as they relate to minor children and in the Tribunal’s view, the community would find such offending abhorrent. The Tribunal places some weight on the circumstances in which these occurred. The applicant refers to his mental state and depression and lack of understanding and ability to control himself and these weigh in favour of the applicant. The Tribunal also considers that the level of the applicant’s integration in the Australian community to be relevant. In this case, the applicant has been living in Australia for a relatively short period and at best, he has only held a temporary visa. He has limited links to Australia (the Tribunal acknowledges evidence from his many friends here) and his immediate family live overseas. The Tribunal also accepts that the applicant’s circumstances at the time of offending may be viewed as being favourable considerations by the community.

23. It is notable that in his oral evidence to the Tribunal the applicant stated that he was aware that his Student visa could be cancelled if he had committed serious offences in Australia. The applicant also conceded that when he entered Australia, he was aware that possession of child abuse material and stalking constituted offences in Australia. It is significant, in the Tribunal’s view, that the applicant appears to have been cognisant, despite any mental health issues, that his conduct was contrary to the expectations of the Australian community and the fact that he did engage in such conduct goes against the expectations of the Australian community.

24. The Tribunal accepts that a considerable degree of hardship may be caused to the applicant if he is not granted the visa, most notably in relation to his future migration options and ongoing detention. The Australian community may view such matters as favouring the exercise of discretion in favour of granting the visa. However, the Tribunal is of the view that the Australian community would also give due regard to the nature of the offending and the applicant’s overall regard for the Australian laws. As noted above, the Tribunal has formed the view that the offences committed by the applicant, which involved minor children, would be viewed as being abhorrent. The Tribunal has formed the view that in the circumstances of this case, the community, having considered the nature of the offences and the applicant’s limited links to Australia and the temporary nature of his visa, would expect that the applicant’s conduct would result in him losing the opportunity to remain in Australia.

25. The Tribunal has formed the view that, having regard to the totality of the applicant’s circumstances, the Australian community would not support the granting of the visa to the applicant. That is, the expectation of the community support the exercise of discretion to refuse to grant the visa.

    Other Considerations

    International non-refoulement obligations

26. In considering the non-refoulement obligations, the Tribunal is guided by the principles recently enunciated by the High Court in Plaintiff M1/2021 v Minister for Home Affairs (2002) 400 ALR 417; [2022] HCA 17. The court stated at [29]–[30]:

    Where the representations do include, or the circumstances do suggest, a non‑refoulement claim by reference to unenacted international non‑refoulement obligations, that claim may be considered by the decision-maker under s 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error – they are not part of Australia's domestic law.

    Where the representations do include, or the circumstances do suggest, a claim of non‑refoulement under domestic law, again the claim may be considered by the decision‑maker under s 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non‑refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.

27. In his submissions the applicant states that his offending behaviour would be known to his local community in India. The applicant states that he would be perceived as harming children and as a result, he is at risk of serious physical assault, causing bodily and mental harm. The applicant refers to the harm that his family had already experience harm and this may worsen. The applicant refers to ‘vigilante justice’. There is before the Tribunal the DFAT report on India dated December 2020.

28. In oral evidence the applicant told the Tribunal that he does not wish to return to India firstly because he wants to study in Australia and also because there are many people from the same village who live in Australia who are aware of his convictions and detention (which they believe to be jail) and who spread rumours about him in the community. The applicant states that he is perceived as having raped a minor child and there have been threats made against him to his parents. The applicant states that he does not feel safe to return to India because he could be harmed or even killed. He claims that he cannot move to a different area as he has no skills and no qualifications and no family or community support and even if he is to move to another state, he would always live in hiding.

29. The applicant’s father and his sister, who gave oral evidence to the Tribunal, gave the same evidence, referring to vigilante justice and the rumours that have been spread against his son. The applicant’s father stated that the applicant may be harmed or even killed and the applicant’s sister  stated that the taunting would not be good for her brother’s mental health. Several of the applicant’s friends and his cousin in Australia provided written statements and also gave oral evidence to the Tribunal in which they also expressed the view that the applicant  cannot return to India as his life may be at risk.

30. The Tribunal acknowledges the applicant’s evidence, which appears to be supported by statements from his relatives and friends. The Tribunal acknowledges that the evidence raises claims that Australia’s non-refoulement obligations in this case. However, the Tribunal has decided not to give weight to these in exercising its discretion in favour of the applicant for the following reasons.

31. First, the Tribunal is of the view that the nature of the visa sought and the practicalities of the outcome of this review, are relevant. The applicant is seeking a bridging visa on the basis of an ongoing application for judicial review. Whether or not the applicant is granted that visa, it will not enable the applicant to remain in Australia permanently or even on a long term basis to avoid the claimed harm that he would experience in India. The BVE is not the visa to effectively enable Australia’s non-refoulement obligations to be fulfilled.

32. Importantly, BVE sought is in association with the application for judicial review and the Tribunal considers there is little or no likelihood that the applicant would be removed from Australia before that review is finalised. The respondent’s representative states that while there can be no undertaking that the applicant will not be removed while his judicial review is on foot, there is the Federal Court Practice Note with which the Minister complies. That makes it ‘highly unlikely’ that the applicant would be removed before his judicial review is finalised and if a decision was made to remove him, he can apply for an injunction to prevent that removal. The Tribunal accepts the evidence of the respondent that it is a normal practice for people not to be removed if there is an outstanding application and there is unlikely to be a departure from that practice (cf WKMZ v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55). In these circumstances, the Tribunal is of the view that the applicant is highly unlikely to be removed from Australia irrespective of the outcome of this review, while his judicial review has not been determined.

1. Should the applicant be successful in that review, he is likely be able to remain in Australia while his application in relation to the student visa cancellation is reviewed by the Tribunal. If the applicant is not successful in the judicial review, he would have no visa to remain in Australia and would be subject to removal (unless he makes another visa application) as his bridging visa would cease after the judicial review is determined. That is, the applicant’s departure from Australia would not be the result of the decision to refuse to grant the BVE visa to the applicant but due to the expiry of his bridging visa.

2. In these circumstances, the Tribunal’s view is that Australia’s non-refoulement obligation will not be breached if the applicant is not granted the BVE because he will not be removed from Australia as a result of his visa being refused and because his departure from Australia will not be a consequence of grant, or refusal to grant, the Bridging E visa.

3. Secondly, the Tribunal is of the view that the assessment of the applicant’s claims can be more appropriately undertaken as part of a protection visa application that the applicant is eligible to make in the future (cf Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17)

   Where the representations do include, or the circumstances do suggest, a non‑refoulement claim by reference to unenacted international non‑refoulement obligations, that claim may be considered by the decision-maker under s 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error – they are not part of Australia's domestic law.

   Where the representations do include, or the circumstances do suggest, a claim of non‑refoulement under domestic law, again the claim may be considered by the decision‑maker under s 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non‑refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.

4. In the present case, there is nothing preventing the applicant from making an application for a protection visa in the future where his claims would be assessed. 

5. In his submission to the Tribunal the applicant states that the assessment of the non-refoulement obligations should not be deferred as doing so will result in significant or indefinite detention for the applicant, noting also the delay that will result if the applicant is to apply for a protection visa. The Tribunal accepts that if the applicant is to be granted the BVE, he may no longer be detained but that visa will not offer the applicant any durable protection against the non-refoulement, given the very temporary nature of that visa. If the applicant wishes to obtain more meaningful protection, he would need to seek a different visa rather than a BVE.

6. The Tribunal accepts that hardship would be caused due to prolonged detention if the BVE is not granted and if he is to make an application for the protection visa. That is addressed more fully below but that is a separate issue from the consideration of Australia’s non-refoulement obligations.

7. The Tribunal is satisfied that the applicant’s claims do not raise any claims that would not be assessed under the protection visa process. As such, the Tribunal has decided to defer the assessment whether the non-refoulement obligations arise in this case for such an assessment to be completed should the applicant make an application for a protection visa in the future.

   Extent of Impediments if removed

8. In his submission to the delegate the applicant refers to the length of his stay in Australia stating that is suffering from mental health issues and has no qualifications to rely on in India. The applicant states that he would find it difficult to re-establish a life in India and would face harm. In his evidence to the Tribunal the applicant also states that he has lived in Australia since the age of 18 and he outlined his past employment. He states that he had never worked in India, he has no social or employment connections that can be relied upon to gain employment. The applicant submits that lack of formal qualifications and coupled with significant harassment and ostracism and harm he faces if removed will mean that he will be unable to settle in India. The applicant submits that he will experience deterioration of his mental health (this claim is unsupported by any probative evidence from a health professional).

9. In oral evidence to the Tribunal the applicant, as well as his father and sister, also refer to the hardship the applicant would experience if he was to return to India, lack of education and employment opportunities, societal discrimination and the risk of harm. Mr NG told the Tribunal that if the applicant is not granted the visa, it may affect his mental state (although Mr NG believes he has the skills to cope with it) while if he is granted the visa, he would be ‘elated’.

10. The Tribunal considers these submissions misguided. It is significant that the issue before the Tribunal here is not the hardship that may be caused to the applicant and others if he is not granted the visa. As noted above, the Tribunal considers there is little or no likelihood of the applicant being removed before his judicial review application has been finalised and removal of applicants before the judicial review applications are finalised is not the usual practice of the Department. In the Tribunal’s view, in these circumstances any impediment if removed should be given minimal weight in the exercise of discretion.

11. It is also significant, in the Tribunal’s view, that the visa in question is a Bridging E visa which does not allow the applicant to remain in Australia permanently and not even on a long term basis. The visa, if granted, would be in effect until the judicial review application is determined and, if the matter is remitted to the Tribunal, until the Tribunal makes its decision in relation to the Student visa cancellation (cl. 050.212 of the Migration Regulations 1994 (Cth)). At best, the Bridging E visa would permit the applicant to remain in Australia until a determination is made on his Student visa. If the applicant is not successful in his judicial review application, his Bridging visa will only allow him a few weeks to remain in Australia. None of the hardship to which the applicant and others refer would arise because of the decision on the BVE, but rather the applicant not holding a substantive visa that would enable him to stay in Australia.

12. The Tribunal acknowledges that the applicant may experience hardship if he was to return to India for a variety of reasons he set out in his submissions. However, in the circumstances where there is little likelihood of removal and given the very temporary nature of the visa in question, the Tribunal is of the view that this consideration should be given minimal weight.

13. Having found that the applicant will not be removed irrespective of the outcome of this review (and conversely, if he is to leave Australia in the future, that would be due to him not holding an Australian visa rather than due to the decision to refuse to grant him a BVE), the Tribunal has formed the view that this consideration is neutral.

    Impact on victims

14. There is no evidence before the Tribunal about impact on victims.

    Links to the Australian community including the strength, nature and duration of ties to Australia and Impact on Australian business interests

15. In his submissions to the delegate and the Tribunal the applicant states that he has been living in Australia since August 2018 and has not departed since that time. The applicant notes that he has been studying and working and he provided evidence of having completed study in Australia. The applicant provided a number of statements from third parties and updated character references are before the Tribunal. The Tribunal accepts that those who provided statements believe the applicant to be a good person. The Tribunal also accepts that the applicant has formed some social, employment and other ties in Australia, although the Tribunal is of the view that a four year period of residence in this country is not significant.

16. There is no evidence before the Tribunal to indicate that the decision on the applicant’s visa would have any impact on Australian business interests.

    OTHER CLAIMS

17. There are a number of issues that the Tribunal considers to be relevant to the exercise of discretion and these are addressed below.

18. The applicant made the application for the Bridging visa while awaiting the outcome of his application for judicial review. The grant of that visa would enable the applicant to remain in the community. If the applicant is not granted the Bridging visa, he is not a holder of any visa and is an unlawful non-citizen, subject to detention. That is, if the applicant is not successful in the present application, and unless he is granted another visa, the applicant is likely to remain in detention and such a detention could potentially be lengthy. The Tribunal is of the view that the possibility of ongoing and possibly lengthy detention will cause considerable hardship to the applicant. That weighs heavily in favour of visa grant.

19. The applicant’s relatives and friends provided character references for the applicant and the Tribunal accepts those who provided statements believe the applicant to be a good person. They also expressed the view that the applicant would not reoffend. The Tribunal gives these statements some weight in favour of the applicant.

20. The applicant states that he would not be able to complete any study in India or any other country because of his criminal convictions. The Tribunal is mindful that there is no evidence to support the applicant’s claim that he would be denied access to education in India or another country (presumably other than Australia because he seems to want to engage in studies in Australia in the future) due to his criminal convictions in Australia. The Tribunal does not accept that claim.

21. There are several character statements before the Tribunal from applicant’s friends who also refer to the risk of harm, should the applicant be returned to India. The Tribunal accepts that those who provided the statements hold the views that are expressed in those statements.

22. Another significant consequence of affirming the decision under review, the applicant will have very limited options of future visa applications in accordance with s 501E of the Act. The applicant’s representative submits that the effect of the decision not to grant the applicant the bridging visa restricts further applications and the applicant would only able to make one application if there is a s 501 refusal. If he is granted the visa, he could apply for a Training visa or a Partner visa or another Student visa. The Tribunal is mindful that the applicant may be unable to apply for some of these visas due to the operation of s 48 of the  Act (which operates due to the cancellation of the Student visa) and, as far as a Partner visa is concerned (which is not subject to the operation of s. 48), there is no evidence before the Tribunal that the applicant has an Australian partner and that he would thus be eligible to be granted the Partner visa. Thus, while the Tribunal accepts that a refusal to grant the visa under s 501 will have significant effect on the applicant’s ability to apply for other visas in the future, the applicant has not provided adequate evidence to the Tribunal to establish what visa he could have applied for that he would be precluded from applying as a result of the decision to refuse to grant him the BVE. Thus, in the Tribunal’s view, the extent of hardship arising from the visa refusal under s 501 is alleviated to considerable extent by the fact that independently from this process, the applicant has limited visa options due to the operation of s 48 and he has not satisfied the Tribunal that if s 501E did not preclude further applications, he would have applied for another visa that he is not able to apply for otherwise.

23. The applicant’s representative also submits that if the applicant’s BVE  is refused under s 501, if he is successful in his judicial review, the Tribunal on remittal would not be able to set aside the cancellation of the Student visa and the court’s decision would be null and void. The respondent submits, and the Tribunal agrees, that s 501E operates in relation to future applications, not applications that have been made prior to visa refusal under s 501. That is, if the discretion is exercised not to grant the BVE, it does not mean that the cancellation of the Student visa must necessarily be affirmed. Contrary to the applicant’s submission, the court’s judicial review proceedings would not be rendered null and void if the BVE is not granted.  

24. Generally, the Tribunal accepts that if the applicant is not granted the visa, it may cause significant hardship to him, including ongoing and possibly lengthy detention, potential effect on his mental health and significant limitations in future migration options. In the Tribunal’s view, these matters weigh considerably against the discretion to refuse to grant the visa.

    CONCLUSION ON EXERCISE OF DISCRETION

25. The Tribunal has found that the applicant does not pass the character test and that the discretion to refuse to grant the visa is enlivened.

26. In considering how to exercise the discretion, the Tribunal has considered the totality of the applicant’s circumstances, noting that the considerations set out in Direction 90 are not exhaustive.

27. The Tribunal has found the offences committed by the applicant to be serious, having regard to their nature and the fact that the offences involved minor children. The Tribunal has found that that the risk of reoffending continues to exist, although that risk is very low. Should the applicant engage in criminal conduct in the future, the Tribunal considers there could be significant adverse repercussions for the community, given the nature of the past offensive conduct and the possibility of its repeat.

28. The Tribunal has formed the view that the protection of the community weighs in favour of exercising the discretion to refuse to grant the visa. The Tribunal has also found, for the reasons set out above, that the expectations of the community would be such that the visa should not be granted. The other primary considerations are neutral.

29. In terms of other considerations, the Tribunal has formed the view that the refusal to grant the visa would not breach Australia’s non-refoulement obligations and there are no children who would be affected by the cancellation. These considerations are neutral.

30. The Tribunal acknowledges that considerable hardship could be caused to the applicant if his visa application is refused because of the likelihood of prolonged detention and, to a lesser extent, the effect of refusal on future visa options. These factors weigh in favour of the visa grant.

31. Overall, the Tribunal has decided to give greater weight on the primary considerations such as the expectations of the Australian community and the protection of the Australian community. The Tribunal has formed the view that, in the circumstances of this case, these considerations outweigh other considerations that favour the visa grant. Having regard to all the relevant circumstances, the Tribunal finds that the discretion should be exercised to refuse the application under s 501.

    CONCLUSION

32. The Tribunal affirms the decision under review to refuse to grant the applicant the WE Bridging E visa.

I certify that the preceding 105 (one hundred and five) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Raif

.................................SGD.......................................

Associate

Dated: 23 August 2022

Dates of hearing:	11 and 12 August 2022
Solicitors for the Applicant:	Mr Ehimudiamen, Lucky Iyare & Associates
Solicitors for the Respondent:	Mc McLaurin, Minter Ellison