WCJS and Minister for Immigration and Border Protection (Migration)

[2017] AATA 876

WCJS and Minister for Immigration and Border Protection (Migration) [2017] AATA 876 (11 May 2017)

Division:GENERAL DIVISION

File Number(s):      2017/0880

Re:WCJS

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Professor M J McGrowdie, Senior Member

Date:11 May 2017

Date of written reasons:        7 June 2017

Place:Sydney

The Tribunal sets aside the decision of the delegate of the Minister for Immigration and Border Protection dated 16 February 2017 and in substitution decides that the decision to cancel the applicant’s visa dated 16 February 2017 is revoked. That is, the applicant’s visa should not be refused on character grounds, and in any event, the discretion to refuse the applicant’s visa should not be exercised against the applicant had a contrary view on the character test been reached.

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

Professor M J McGrowdie, Senior Member

CATCHWORDS

IMMIGRATION – partner visa refusal – failure to pass the character test – whether to exercise section 501(1) discretion to refuse visa on character grounds – applicant convicted of common assault and domestic violence – 12 month good behaviour bond – whether there is a risk of reoffending – protection of the Australian community – expectations of the Australian community – impact on family members – decision set aside and substituted.

LEGISLATION

Migration Act 1958 (Cth), s 501

SECONDARY MATERIALS

Ministerial Discretion 65

REASONS FOR DECISION

Professor M J McGrowdie, Senior Member

XX May 2017

BACKGROUND

1. The applicant came to Australia from Bangladesh in 2007 aged 26.  He arrived on a student visa and studied here in Australia.  He settled in Sydney.  The applicant subsequently entered into a de facto or domestic relationship with his partner and, as I understand it, was currently continuing his residence in Australia on a New Zealand citizen’s family relationship visa. 

2. His partner has New Zealand citizenship and works as a medical laboratory scientist at a large Sydney hospital. She hopes to further her career in medical research and science.  She has been here under a special category sub-class 444 visa, but has applied for a permanent skilled visa.  She did this in 2015. 

3. The applicant joined in that application as a partner; however, when his application as a partner was considered by the delegate of the Minister, his application was refused on character grounds, which as I understand it, would lead to the automatic cancellation of his visa.

4. The decision would no longer enable the applicant to remain in Australia on the visa he had at the time of applying for the partner visa.  Since being in Australia, the applicant has undertaken various forms of studies.  He is of Arabic origin, and is the son of Arabic parents living in Bangladesh.  His father is a successful business merchant in Bangladesh and he and his wife have been married for some 35 years.  I understand that the applicant was born in Bangladesh, but has given evidence that he experienced childhood difficulties, and that that has led to some psychological problems.

5. Notwithstanding this, he sought to create a life for himself in Australia, and whilst originally doing hospitality work, he went on to study and has obtained a master’s degree in Commerce and Business.  He has also established himself as a person in the security business, and is currently employed by a large department store in Sydney as a Deputy Security Manager.  He also has other employment, mainly on the weekends, as a Security Guard at various venues, including clubs.  He has worked in in-store security in the past.

6. Clearly the applicant encounters situations of conflict on a regular basis in the security employment, but he has been able to maintain that work with high regard over a substantial period of time and has achieved quite a degree of success.  He has all the necessary clearances and qualifications to work as a security guard, but essentially he does that work to provide income for himself.  He is partway through a second master’s degree, being a Master in Accounting, which he has completed to the extent of about one third of the course before deferring with the intention of returning to it.

7. In the shorter term, his future intentions were to move, with the requisite qualifications, into the world of commerce and finance; but that, together with his security work over the years, has led him to the belief that he would ultimately like to work for an organisation such as ASIO.  That would be his ultimate goal, but in the more immediate future, his goal is to work in the commercial world.

8. He is currently in Villawood Detention Centre. Shortly before that, the applicant had almost certainly secured employment with a large financial organisation in a relatively junior role, but nonetheless a first step to becoming employed in the financial sector.  He has been in a very stable domestic relationship with his partner for a period of about three years. They have been living together in a southern suburb of Sydney.  As I have mentioned, she has a very significant career. She has given evidence in these proceedings and presents as a stable and solid person; well presented, articulate, and very supportive of the applicant.

9. They had planned to buy a home in Australia, if that were possible, to marry and have a family.  If the applicant was unsuccessful in these proceedings, she has indicated that she would go with him back to Bangladesh, where she has never been before. However, it was indicated that that presents problems of its own.  The applicant is Muslim, as is his family. She is a non-Muslim, a Caucasian of fair complexion and hair. The applicant’s partner would no doubt find it very difficult to assimilate into that culture and to be accepted in that culture.

10. What has led the applicant to make the application before the tribunal is the rejection by the delegate of the Minister of the applicant’s application for the partnership visa on his partner’s application for a skilled visa.  His application was refused because according to the delegate, the applicant failed to satisfy the character test. 

    LEGISLATION

11. Before going to further factual material, I will refer briefly to the legislative provisions contained in section 501 of the Migration Act 1958.  Subsection 501(1) provides that:

    The Minister (or delegate) may refuse to grant a visa to a person if the person does not satisfy the Minister (or the delegate) that the person passes the character test.

12. Subsections 501(3)(a) and 501(3)(c) provide that:

    The Minister may refuse to grant a visa to a person if the Minister reasonably suspects that the person does not pass the character test…and the Minister is satisfied that the refusal is in the national interest 

13. In this particular case, the delegate considered that the applicant did not pass the character test, as set out in subsection 501(6), and in particular, paragraph (d):

    In the event the person were allowed to enter or to remain in Australia, there is a risk that the person would engage in criminal conduct.

    ISSUES

14. It is clear that the applicant has had a criminal record in the past, and it is upon that basis that a conclusion was reached by the delegate, that there was a risk of reoffending.  I will attempt to set out briefly the nature of the matters with which the applicant was charged in the past. 

    Criminal History

15. The facts are rather dense and there has been some degree of difficulty experienced in precisely teasing out the details of these offences.

16. The applicant was charged on 21 August 2009 with three charges, of which one was dropped. 

17. The remaining charges were dealt with on 29 October 2010 when the applicant was fined $500, ordered to pay court costs, and convicted, and made the subject of an apprehended violence order (‘AVO’). He appealed that decision to the District Court, and that appeal, was dealt with on 22 March 2011, when he was given a section 10 Order under the Crimes (Sentencing Procedure) Act 1999 and placed on a 12 months’ good behaviour bond, and a requirement to notify of any change of address. Briefly, the effect of section 10 is that the offence is found proven, but the court does not record a conviction.

18. The brief circumstances in relation to the AVO are that the applicant was in a previous relationship with another lady. The relationship was rather turbulent, and  his former partner was prone to behaviour which was difficult for the applicant to manage.  On the particular occasion of the offence the applicant was, in effect, charged with assaulting the victim, in that she had some bruising on the arms and complained that her hair had been pulled. 

19. The applicant’s explanation was that he was attempting to control the situation and did have her in a bear hug. Nonetheless, the magistrate preferred the version of events as given by the victim, and imposed the AVO and a fine. When it was dealt with, by the District Court, the conviction was substituted with the section 10 Order.

20. One of the things that is significant is the way that the courts deal with these matters when one considers the relative severity of the incident. To have dealt with the matter under section 10 is perhaps indicative that the District Court did not consider the circumstances to be significant in the general range of matters that could come before the court; namely that it was at the very lower end, rather than being insignificant.

21. It is something to be noted that the applicant’s then partner attempted to have the AVO withdrawn and made quite a number of attempts to do that, but was not successful in doing so.  Notwithstanding that she took that action, she did, when the matter came on for hearing, give evidence and her evidence was accepted.  After the AVO was imposed, the applicant’s former partner continued to contact him on a very regular basis by text messages, expressing apology and regret in relation to the matter. 

22. At a later time, and in response to some contact by the victim, the applicant, who believed that she was in a state of distress, attended at her premises in breach of the AVO. This resulted in the applicant being returned to the court and charged with contravening the AVO, and also for being in breach of bail. Again, this was dealt with according to the provisions of section 10 of the Crimes (Sentencing Procedure) Act 1999 at Penrith Court in December 2011.  It would seem that that relationship had well and truly come to an end by that time.

23. After commencing his relationship with his present partner, the applicant was charged with another offence, namely a common assault.  I understand that the date of the offence was 18 November 2014.  On that occasion, the applicant was travelling in a car with his now partner.  The evidence of the applicant was that they were being followed by another vehicle, who was carrying out certain manoeuvres on the road, like drawing up against them on the outside of their vehicle.  Sometime thereafter, the vehicles came to a stop and the applicant confronted the driver of the other vehicle and was charged with some form of assault.

24. I do not understand that the nature of the assault was alleged to have been of a grievous kind; but rather, a squabble with some physical contact between the applicant and the other driver.  The applicant’s current partner was present during these events and has also given some evidence. 

25. In addition to that it would seem, as I have been informed, that the applicant also had some charges brought against him for larceny of goods in personal custody suspected of being stolen, and custody of a knife in a public place.  All of these incidents appear to have been dealt with at the same time, but the details of those incidents appears relatively scant and not of great forensic substance. 

26. Much focus has been placed on the events in 2009 involving the applicant’s former partner and the AVO, and also the road incident in November 2014; they appear to be the main focus of the applicant’s criminal record.

27. The road assault was dealt with by the court under the Mental Health (Forensic Provisions) Act 1990 where there was no finding of guilt or otherwise.  In short, the matter was dealt with under the mental health legislation, based on the medical report of a psychologist who examined the applicant and considered that he had a brief episode, perhaps, of a psychotic kind.

28. As mentioned, the applicant has said that his childhood was somewhat troubled.  His parents frequently argued and he himself being the subject of some harsh treatment by his parents.  The details of this again are a little scant.  Nonetheless, the applicant reflects that when he arrived in Australia in 2007, he probably did have some problems with regard to his mental health but I note that notwithstanding these problems, he seems to have made a lot of achievements in Australia.

29. Currently in Villawood, he has been undergoing psychological counselling and taking prescription medication for depression.  It would seem that the applicant has suffered from bouts of depression in the past, has been prone to sleep deprivation and generally, has problems with getting enough sleep.   

30. It is my impression that the applicant has had in the past some problems with managing his anger.  This is reinforced by the fact that the respondent has produced the applicant’s Computerised Operational Policing System report (‘COPS report’) – the record of incidents from New South Wales police.  Amongst some 21 or so entries, there are about six entries which would indicate that the applicant has lost his temper, particularly with regard to what might be commonly described as road rage type incidents, nothing which has led to any charges of physical assault but nonetheless, abusive conduct.

31. Whilst I do not propose to go through each of those in particular, they do suggest or reinforce the fact that the applicant has had some issues with his ability to control emotions from time to time. 

32. One of the incidents was not a road incident but one which involved the applicant being abusive to staff at a hamburger outlet where the applicant was given a burger which contained bacon which he had not asked for and this offended him because of his religious beliefs.  The applicant attempted to explain the circumstances of the event and indicated that what he had done was to call for the manager and then refuse to leave the premises until he saw the manager.  Police were called and the incident reported.

33. Other than that particular incident, my recollection is that the applicant said he was not aware of any of the other incidents reported against him in the COPS report as none of them led to any charges or any cautions.  This is not to say that they did not happen but of course, were not the subject of any court proceedings or proven offences.  They do support something of a tendency that the applicant has displayed in the past with regard to his reactions to situations against a background of perhaps some mental health problems, in particular, depression.

34. It is my impression that the applicant is a person who might easily be offended.  Certainly in the past, if in a righteous way, he believed he had been wronged.

35. Again, all of this is against a background of the applicant having achieved very much in Australia, particularly with regard to his academic studies, his skills and his ability to form a very close and supportive relationship with a partner of the qualities displayed by his partner.  That relationship to my mind is genuine.  It is a relationship that is ongoing and one that would sustain the applicant into the future.

36. In respect of those offences I have spoken, although having occurred not that long ago, it certainly is a couple of years since those incidents.  The applicant attributes a change by him coming to terms with depression and dealing with it, and more importantly his relationship with his partner.  That is, the formation of that relationship.

37. What must be considered is the risk of the applicant reoffending, if there is such a risk, then clearly the applicant does not meet the character test.  The applicant relies on his own evidence, that of his partner, the evidence of numerous referees, his work and study history, the fact that he has been engaging in treatment whilst at Villawood which has been a difficult period for him to manage, and the reports of two psychologists.  They are the reports of Adrian Hall and Sam Borenstein, which are amongst the papers.

38. The reports display, more than anything else, that the applicant has an appreciation of, or a recognition that he is prone to suffer from depression and needs to deal with that, including the taking of medication and some counselling.  There is also a report more recently prepared by an organisation known as STARTTS dated 24 April 2017 which goes into the applicant’s current psychological condition and history, and also deals with the applicant’s concerns regarding a possible return to Bangladesh.

    CONSIDERATIONS

39. In the course of the proceedings, the applicant submitted that it would be relevant for the Tribunal to take into consideration Australia’s international non-refoulement obligations but as I indicated to the parties, whilst that might be a matter for consideration, should the applicant at any time consider it appropriate for him to apply for a refugee status, then that could be done in the normal course subject to the normal considerations. I do not propose to deal with that matter further other than to the extent that it is relevant for me to consider that the applicant would not be in as good a position in Bangladesh as he is here with his current partner, with the history of depression he has had and the continuing support and treatment available to him there. However, I do not accept that Australia’s international non-refoulement obligations are a significant consideration here, nor a basis to allow the applicant’s application.

40. The reports of the psychologists suggest that the risk of the applicant reoffending would not exist or if they did, to only a very slight degree.  It was submitted on behalf of the Minister that those practitioners were only dealing with isolated incidents and did not have all the material and information available to the tribunal.  That is so, but nonetheless I need to consider that and to make a determination as to whether or not it appears that the applicant does pose a risk to the community in terms of reoffending.

41. The view I take on the whole of the evidence and given the applicant’s current circumstances, his living arrangements, his relationship with his partner, his aspirations and his achievements, the risk of reoffending is not one which I consider exists having regard to all of those considerations.  Any person poses a risk of doing something at some time but in considering this matter and taking all of the matters into consideration, I do not believe that that risk in terms of the legislation is such as to lead to the conclusion that the applicant does not satisfy the character test.

42. Had the applicant not satisfied the character test then there is a discretion not to refuse a visa application as set out in part B of Ministerial Direction 65 made under the Migration Act 1958 which deals with visa refusals.  There is general guidance and principals set out in the earlier parts of direction 65, namely in the preamble at section 6.  Section 6.1 sets out the objectives, section 6.2 provides general guidance, and section 6.3 provides the relevant principles.  There is then in section 7, provisions in relation to the exercise of the discretion, how it is to be exercised and the relevant considerations that are to be taken into account.

43. I am very mindful of the general principles that are set out, that criminal offending and conduct is something for which Australia has a low tolerance and that being in Australia is a privilege and not a right.  They are governing principles and operate for the greater protection of the Australian community and are paramount to Australian society.  When one goes to part B, one sees that in section 11 there are primary considerations with respect to visa applicants which apply in deciding whether to refuse a non-citizens visa.  They are the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia and the expectations of the Australian community.

1. The concept of the protection of the Australian community is further enumerated in section 11.1 which indicates that the government is committed to protecting the Australian community from harm as a result of criminal activity.  There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct.  Nonetheless, the decision maker is to have regard to the nature and seriousness of the conduct to date and the risk to the Australian community should the non-citizen commit further offences.  The nature and seriousness of the conduct is dealt with in section 11.1.1 and what follows.

2. In section 11.1.2, there is an enumeration of the risk to the Australian community should a non-citizen commit further offences or engage in other serious conduct.  I believe I have dealt with the question of whether the applicant does pose a risk in terms of reoffending or a risk to the Australian community and I do not believe given all of the evidence, that this is so. 

3. In terms of the primary considerations, there are no minor children so that does not apply. 

4. In terms of the expectations of the Australian community which is also a primary consideration, I consider that the Australian community would not require refusal of this man’s application given his relative intelligence, aptitude, fortitude, perseverance and achievements, and his ties to the Australian community.  In particular, the evidence relating to the role he has frequently engaged in and that is the mentoring and helping of younger people to achieve and succeed.

5. In addition to the primary considerations, there are other considerations which I need to have regard to.  That is, international non-refoulement obligations, the impact on family members, the impact on victims and the impact on Australian business interests.  I have already made comment and dealt with the issue of international non-refoulement obligations and I take the matter no further other than to say that the applicant does have concerns for himself with regard to a return to his home country.

6. In terms of the impact on family members, the evidence suggests that his partner who is currently a resident of Australia and likely in the normal course of events, would hope to become a permanent citizen, would if necessary, accompany the applicant back to his homeland. There would be a severe effect on her and that she can be regarded fairly as a family member.

7. There is no direct evidence as to the impact on victims but the applicant has certainly moved on from his relationship with his former partner which to all intents and purposes was a troubled relationship and which eventually came to an end. Although the applicant was found to have been a person to whom an AVO was to be applied – notwithstanding that his former partner did seem to be very equivocal about it and continued to contact and seek out the applicant.  It appears that all of that is now well behind him.  There is no evidence from any other victims or in relation to other victims for their current concerns.

8. I now come to the impact on Australian business interests.  This is not something which looms very large as a consideration in this matter.  It was suggested that it would be a considerable loss to Australia’s business interests if the applicant’s current partner were to leave her medical scientific endeavours but nonetheless, I do not believe that that is a significant matter when assessing the impact on Australian business interests in its wider sense.

9. They are the secondary considerations, all of which have to be weighed.  There do not appear to be any further matters to be taken into consideration. Were it not for the fact that I have determined that the applicant does not fail the character test, despite some transgressions with the law, the discretion would in my view be one to be exercised in a way which would not refuse the applicant’s visa .

   DECISION

10. Accordingly and for the brief reasons which I have given: The Tribunal sets aside the decision of the delegate of the Minister for Immigration and Border Protection dated 16 February 2017 and in substitution decides that the decision to cancel the applicant’s visa dated 16 February 2017 is revoked. That is, the applicant’s visa should not be refused on character grounds, and in any event, the discretion to refuse the applicant’s visa should not be exercised against the applicant had a contrary view on the character test been reached.

I certify that the preceding 53 (fifty -three) paragraphs are a true copy of the reasons for the decision herein of Professor M J McGrowdie, Senior Member

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

Associate

Date:11 May 2017

Date of written reasons:        7 June 2017

Dates of hearing:	26-27 April 2017, 3 May 2017 and 11 May 2017
Solicitors for the Applicant:	Mr R Turner, Turner Coulson Immigration Lawyers
Solicitors for the Respondent:	Ms M Wells, Sparke Helmore Lawyers