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

Wojtas and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1259 (9 April 2021)
Division:GENERAL DIVISION
File Number(s):2021/0276
Re:Jacek Edward Wojtas
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member M Kennedy
Senior Member J Rau SC

Date of Decision: 9 April 2021
Date of Written Reasons: 11 May 2021
Place:Adelaide

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision dated 27 February 2020 and sends the matter back to the Respondent for reconsideration in accordance with the following direction:
1. The Respondent shall not refuse to grant the visa to the Applicant pursuant to subsection 501(1) of the Migration Act 1958.

………………[Sgnd]…………………
Member M Kennedy

(for the Tribunal)

CATCHWORDS
MIGRATION – refusal to grant a visa – s 501 character test applied – foreign conviction - Tribunal may not go behind fact of conviction or essential facts leading to conviction - s 501(10) ‘pardons etc’ – conviction otherwise nullified – expungement – s 501(6)(e) sexually based offence involving a child – court in foreign country convicted and found charge proved - discretion to refuse visa – considerations in Direction 79 Part B – nature and seriousness of conduct - considering sentence imposed by court – whether offence of a violent nature – remote risk of conduct being repeated – minor child resident in Australia long term - decision under review set aside
LEGISLATION
Migration Act 1958 (Cth)
Crimes Act 1914 (Cth)
CASES
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385
HZCP v minister for Immigration and Border Protection [2019] FCAFC 202
Dougherty and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 8 (12 January 2021)
Nezovic v Minister for Immigration & Multicultural & Indigenous Affairs (No 3) [2004] FCA 750
Anashkin v Minister for Immigration & Anor [2016] FCCA 310
Khalil v Minister for Home Affairs [2019] FCAFC 151
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION
11 May 2021
Member M Kennedy (Presiding)
Senior Member J Rau SC
BACKGROUND

The Applicant seeks review of a decision to refuse to grant him a Skilled (Provisional) (Class VC) visa (“the visa”) under section 501(1) of the Migration Act 1958 (Cth) (the Act).
On 17 December 2009 the Applicant was convicted in the Bielsko-Biala Regional Court in Poland on three offences against Article 197 of the Polish Criminal Code. The offences were sexual in nature and committed against an employee of the Applicant who was 16 years old at the time of the offences. The penalty imposed by the Regional Court on 17 December 2009 was a combined penalty of 2 years’ imprisonment.
The Applicant appealed his convictions to the Regional Court of Criminal Appeal and then on cassation to the Supreme Court in Warsaw. The appeals were unsuccessful. The Applicant refused to pursue the option of seeking a pardon from the President of Poland because a pre-requisite was an admission of his guilt.
However, on 21 May 2012, through a legal mechanism not clear to us but apparently pursuant to Article 152 of the Polish Penal Procedure Code, the District Court in Bielsko-Biala determined to wholly suspend the sentence for 5 years. The Applicant has not served any time in prison. His supervisory guardian permitted him to leave Poland during the period of that suspension.
The Applicant was first granted a visitor visa (Class FA) on 2 January 2014. He made full disclosure of his Polish criminal record at that time. This included the nature of the offending (sexual) and the fact that he was sentenced to two years imprisonment. A delegate of the Minister decided not to refuse that visa on character grounds. Regard was had by the decision maker to subsections 501(1) and 501(6) and specific mention was made of the character test.
The Applicant entered Australia on 17 January 2014 and has resided in Australia since then with the exception of travel outside Australia between 20 February 2014 and 16 April 2014.
On 5 February 2018 the Applicant’s wife applied for the visa, which included the Applicant and their son as family members. A delegate of the Respondent refused to grant the Applicant the visa under s 501(1) of the Migration Act 1958 (Cth) on 27 February 2020.
The Applicant was notified of this decision nearly 12 months later on 15 January 2021. The Applicant applied to this Tribunal on 9 January 2021 for review of the delegate’s decision.
The Applicant is in the migration zone, and the Tribunal was therefore required to deal with the application for review on an expedited timetable and reach a decision by no later than 9 April 2021 or the decision would be taken to be affirmed by operation of subsection 500(6L) of the Act. The other various procedural constraints provided for in section 500 of the Act also applied to the proceedings.
A remarkable feature of the proceedings at the commencement of the hearing on 18 March 2021 was that the Tribunal papers contained no sentencing remarks or similar record of the circumstances of the offence or the court’s essential findings. This feature was raised with the Respondent’s counsel in the course of opening submissions, and it was confirmed that no such record was known to be held by the Department. Further submissions were invited as to how we might then approach our task of understanding the nature and seriousness of the offending in the absence of any such evidence. It was submitted that the delegate’s decision contained a footnote reference to an English translation as to the particular Articles under the Polish Criminal Code that had been the basis of the charges and conviction against the Applicant, and the Respondent also intended to ask the Applicant questions about the circumstances of the offending. The difficulty with this approach was however already apparent to us because it is clear from the Tribunal’s papers that the Applicant denies the offences were committed and considers himself a victim of a travesty of justice under the Polish justice system.
The Applicant’s evidence commenced, and it was in the context of the Applicant being asked to tell us about the particular articles of the Polish Criminal Code under which he was convicted that the Respondent’s counsel (appearing by video link) made a chance observation that the Applicant (appearing in person) appeared to be reading from something. We inspected the document which appeared to be a lengthy official document containing multiple pages of Polish prose. Our interpreter assisted us by explaining that the heading of the document could be translated as ‘justification for sentence’, and the document did indeed match the description of sentencing remarks. On further enquiry, we learned that the Applicant had provided his migration representative with the document a long time ago, and there were more such documents available relating to the appeals. None had been provided to the Department by the representative or had been translated. The Applicant’s migration representative did not mention that such documents were in his possession (or indeed in the hands of the Applicant sitting before us) despite the lengthy discussion about the critical relevance of such information and the difficulty we faced in proceedings without such information. The Applicant participated in the proceedings with the assistance of an interpreter.
It appears that despite the Respondent’s delegate making a decision in 2014 not to refuse a visa and then a further decision the subject of this review in February 2020, both of which required the Respondent’s delegates to consider the nature of the offending, the Department had not taken steps to obtain this information for itself.
We directed the Applicant to produce all documents meeting the description of sentencing remarks or appeal judgements and directed the Respondent to have the documents translated. The expedited proceedings were adjourned to allow these steps to be undertaken, and we resumed the hearing on 6 April 2021 and completed the hearing late on 7 April 2021.
Given the need to adjourn the proceedings to obtain the translated sentencing remarks, evidence we considered essential to proper consideration of the review, we found ourselves with minimal time to form a concluded and considered view as to what the outcome of the review was to be. We were not able to prepare written reasons by 9 April 2021 and so pronounced our decision without reasons on that day[1].
[1] See Khalil v Minister for Home Affairs [2019] FCAFC 151
In this matter, the Tribunal is constituted as a panel, and we have each been constituted other matters that must be dealt with on an expedited basis in accordance with section 500 of the Act in the meantime. We have nonetheless endeavoured to provide our detailed written reasons as expeditiously as the proper written expression of our reasons and analysis permits. We regret that this has taken a number of weeks from the day we pronounced the outcome.
ISSUES
Section 501(1) of the Act provides that:
“The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.”
The mechanisms by which a person will not pass the character test are provided for by subsection 501(6). A person will pass the character test if none of the provisions of subsection 501(6) apply to them. The provisions of subsection 501(6) are further explained by sub-sections 501(7) to (12). We elaborate on these provisions as they apply to this matter later in these reasons.
The issues for us to decide include whether the Applicant satisfies us that he passes the character test as defined in s 501(6) of the Act.
For reasons that follow, we have decided that the Applicant has not satisfied us that he passes the character test, albeit not for the same reason as the Respondent’s delegate has found, nor as argued in the hearing.
We therefore must then decide whether we should refuse to the grant the visa. In deciding whether we should refuse to grant the visa, we must comply with any directions made under section 499 of the Act. In this regard section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under this Act if the directions are about the performance of those functions; or the exercise of those powers. Such a written direction is Ministerial Direction No 79 (“the Direction”) which was issued on 20 December 2018 and applies on and from 28 February 2019[2].
[2] Ministerial Direction 79 was revoked and replaced with Ministerial Direction 90 with effect from 15 April 2021.
In deciding whether to refuse a non-citizen’s visa, paragraph 11 in Part B of the Direction provides the three Primary Considerations that the Tribunal must take into account, namely:
(a)Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia; and
(c) Expectations of the Australian community.
The Other Considerations which must be taken into account are provided in a non-exhaustive list in paragraph 12 of the Direction. These considerations are:
(a)       International non-refoulement obligations;
(b)       Impact on family members;
(c)       Impact on victims; and
(d)       Impact on Australian business interests.
CONSIDERATION
Does the Applicant satisfy us that he passes the character test?
The Applicant does not have a ‘substantial criminal record’
We have noted that the Respondent’s delegate found that the Applicant failed the character test on the basis that the Applicant had a ‘substantial criminal record’. The Respondent has maintained that submission in these proceedings. Indeed, the question of whether the Applicant failed the character test by virtue of having a substantial criminal record was not placed in issue until very late in the proceedings.
Pursuant to paragraph 501(6)(a) of the Act, a person does not pass the character test if he or she has a ‘substantial criminal record’ as defined in s 501(7) of the Act. Section 501(7) of the Act relevantly provides that, for the purposes of the character test, a person has a substantial criminal record if (among other matters) the person has been sentenced to a term of imprisonment of 12 months or more: paragraph 501(7)(c).
While on the face of it the Applicant was sentenced to a term of imprisonment of more than 12 months, this must be understood to be subject to subsection 501(10) of the Act. Subsection 501(10) of the Act requires that for the purposes of the character test a sentence imposed on a person, or the conviction of a person for an offence, is to be disregarded if:
· the conviction concerned has been quashed or otherwise nullified; or
· both:
(i) the person has been pardoned in relation to the conviction concerned; and
(ii) the effect of that pardon is that the person is taken never to have been convicted of the offence.
The documentary evidence before us contains extracts from the National Criminal Registry of the Justice Ministry of Poland as at two different dates.
A Polish Criminal Record Enquiry[3] was issued on 17 October 2013 and records the convictions and sentence referred to above. The latest Polish Police Clearance Certificate[4] of the Applicant issued on 14 July 2020 shows ‘no entry’.
[3] G-Documents, G6, p 97-102.
[4] Exhibit A, A2, p 3-4.
It is unclear exactly how this change in the Applicant’s record occurred. An explanation was offered by the Applicant’s representative but not in the form of acceptable evidence from a witness competent to give evidence on domestic Polish law.
The Applicant’s registered migration agent relies upon a document that appears to be a translation of Article 76 and Article 106a of the Penal Code. The document is from an unknown source and contains commentary about the meaning of the term ‘expunction’, also of unknown origin. The document falls short of acceptable evidence about the provisions and operations of a foreign law. Similarly, we did not permit the Applicant’s witness, Mr Jachnik, to give evidence purporting to explain what had happened to the record of the Applicant’s conviction. While Mr Jachnik is a former Polish Member of Parliament and a President of the ‘Association Against Travesty of Justice in Poland’, he is neither a practising lawyer in Poland nor a person who holds qualifications in law. Furthermore, his statement provided in advance of giving evidence did not purport to address this issue.
The Tribunal is left with an official record of the Polish Ministry of Justice that, on its face, asserts that the Applicant has no criminal record at all as at 14 July 2020. The mechanism by which this occurred is unclear. Such evidence as was led by the Applicant about the operation of Polish law amounted to little more than a translation of selected passages of Polish statutes and an assertion that these provisions resulted in his conviction being “expunged” in cases such as his, if he did not re-offend within five and a half years. Whatever the legal mechanism, it appears to us that the Applicant’s record has been “otherwise nullified” by the operation of Polish law.
In this regard, in Nezovic v Minister for Immigration & Multicultural and Indigenous Affairs (No 3), French J (as he then was) observed in obiter in the context of evidence of a report from the Australian Embassy regarding similar records to those present in that case that such information ‘should have immediately raised the possibility that Mr Nezovic’s conviction has been expunged in which case s501(10) might well have applied so that he could not be found to have failed the character test by reason of a substantial criminal record’: at [31].
In Anashkin v Minister for Immigration and Anor [2016] FCCA 310, Judge Driver considered the nature of expunged convictions in the context of whether a matter needed to be disclosed in a visa application form. Although the controversy the court faced was materially different, the consideration is nonetheless instructive. His Honour observed that the concept of ‘expungement’ is not generally understood or applied in Australia. His Honour was faced with an argument in that case that an expunged conviction was different to a ‘spent’ conviction in that an expunged conviction was wholly obliterated while a spent conviction was a conviction for which a pardon has been granted for reason other than that the person was wrongly convicted of the offence: section 85ZM Crimes Act 1914. His Honour indicated that he would accept, as a matter of law, that if a conviction was expunged, then it never existed, but also considered that it was possible (as the Tribunal had found in the matter then before the court) that only the record of the conviction had been expunged, in the sense that the conviction had not been quashed ab initio. His Honour found that this was a finding of fact for the Tribunal to make and it was open to the Tribunal to reach the finding it had.
With some hesitation given the lack of evidence about the application and purported operation of Polish law that has brought about the absence of any recorded convictions as at 14 July 2020, we have settled on the view that the conviction has been ‘otherwise nullified’ within the meaning of paragraph 501(10)(a) of the Act. In this regard, on the limited evidence before us, we consider that the Applicant’s conviction was most likely expunged in the sense that the sentence and record has been wholly obliterated such that it might be taken never to have existed. We have no cogent basis to presume that it is only the record of the conviction that has been obliterated in the sense that the conviction had been spent.
We recognise that but for the expedited timeframe imposed by section 500 of the Act and our application of paragraph 501(6)(e) of the Act that follows, it would have been incumbent on us to take steps to obtain acceptable evidence about the operation of the Polish law in respect of the material change in the content of the Applicant’s criminal antecedent report with a view to deciding whether the change was akin to the sentence and conviction being quashed or akin to the Applicant being pardoned in circumstances where the conviction still stands.
The Applicant does not pass the character test by virtue of paragraph 501(6)(e) of the Act.
While we consider it is necessary to explain our reasoning in relation to whether or not the Applicant has a substantial criminal record given the basis of the primary decision made by the respondent as argued in the hearing, this issue is not ultimately determinative of this matter.
The Applicant was convicted of sexual offences involving a child. In this regard, we note the content of the sentencing remarks identifying the victim as a 16-year-old. There is no evidence that the court’s convictions regarding the fact of a sexual offence being committed against the 16-year-old victim, or that findings have ever been quashed (in the strict sense) through the appellate process. We have no evidence to suggest that a 16 year-old is not considered to be a child under Polish law, but even if that were so we consider that the term ‘child’ for these purposes is to be construed as that term is known in Australian law: a person under the age of 18 years.
Paragraph 501(6)(e) of the Act provides that a person does not pas the character test if a court in Australia or a foreign country has convicted the person of one or more sexually based offences involving a child or found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without conviction.

It is clear from the existence and drafting of paragraph 501(6)(e) that it is intended to capture the historical fact of conviction, a finding of guilt and/ or a finding of an offence found proved, regardless of how the Australian or foreign country then deals with that conviction or finding by way of consequence. It is inconsistent with subsection 501(10) to that extent, but it is clearly a specific provision that is to prevail over the more general provision.
The Tribunal is therefore of the view that on the basis of s 501(6)(e), not s 501(6)(a), the Applicant does not pass the character test. It is therefore open to us to refuse to grant the visa.
Should we refuse to grant the visa?
It is necessary for the Tribunal to apply Ministerial Direction 79 to the exercise of discretion under subsection 501(1) if an Applicant does not pass the character test.
Ministerial Direction No. 79
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker. They are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
In deciding whether to refuse a non-citizen’s visa, paragraph 11 in Part B of the Direction provides the three Primary Considerations that the Tribunal must take into account, namely:
(a)Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia; and
(c) Expectations of the Australian community.
The Other Considerations which must be taken into account are provided in a non-exhaustive list in paragraph 12 of the Direction. These considerations are:
(a)       International non-refoulement obligations;
(b)       Impact on family members;
(c)       Impact on victims; and
(d)       Impact on Australian business interests.
The Tribunal will now address these considerations.
The protection of the Australian community
Paragraph 11.1 of the Direction sets out the first of the three Primary Considerations the Tribunal should have regard to, and relevantly states:
(1)When considering protection of the Australian community, 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. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:
(a)The nature and the 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.
The Applicant gave oral evidence at the hearing before the Tribunal. He understood the serious nature of the offending but maintained that there had been a miscarriage of justice in his case and that he was wrongly convicted. He continued to show no contrition throughout the hearing in these circumstances.
The Applicant has no other criminal history either in Poland or in Australia.
The Tribunal will address each of the considerations 11.1(1)(a) and 11.1(1)(b) in turn.
The nature and seriousness of the Applicant’s conduct to date
Paragraph 11.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly states:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to:
(a)The principle that… violent and/or sexual crimes are viewed seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as 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;
(d)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 197A of the Act;
(e)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 under section 501(6)(c), is considered to be serious;
(f)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(g)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(h)The cumulative effect of repeated offending;
(i)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(j)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
We first address the Applicant’s primary contention to the effect that he was wrongly convicted and the offence essentially simply did not happen. In this regard, the Applicant and his registered migration agent have elaborated on this contention by pointing to aspects of the trial process that they consider to be flawed. We avoid completely the temptation to elaborate upon and engage with the Applicant’s criticisms of the primary judge’s approach to the evidence, the conduct of his defence counsel, evidence given about the motivations and nature of the victim or indeed about alleged institutional failings of the Polish justice system.
Subject to one gap we perceive in the jurisprudence about this issue, we consider that our role in the face of such contentions is well settled. It is not for us to look behind the fact of the conviction or the essential facts that have led to the conviction as found by the sentencing court. This principle has been upheld in the Full Federal Court in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202. In that matter, the majority, after reviewing a line of authorities restated that “where the jurisdictional power is enlivened [by the conviction for an offence], the Tribunal cannot impugn or question the essential factual findings that underpinned the conviction or, where relevant, the sentence on which the power depends”: at [63]. Their Honours rejected the contention that the possibility that an applicant had been wrongly convicted might be “another reason” for revoking an automatic visa cancellation in consideration of the exercise of power in section 501CA(4) of the Act. Their Honours found that to “permit under the rubric of ‘another reason’, evidence contrary to essential facts which must underlie this conclusion [that a person does not pass the character test] cannot have been the legislative intention.”
Their Honours cited with approval the approach of Branson J in Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 who was considering a similar issue in the context of the discretion created by section 200 of the Act (deportation). Her Honour made five key observations in that case. First, the decision maker is entitled to receive evidence of a conviction and sentence and treat it as probative of the factual matters upon which the conviction and sentence were necessarily based. Second, where the conviction and sentence is the foundation of the exercise of power, the Tribunal must not impugn or go behind the conviction or sentence. Third, policy considerations suggest that the legislature intended that the criminal justice system is the pre-eminent determiner of guilt for criminal offences, and the Act should be administered in such a way that limits inconsistency between the criminal courts and tribunals. Fourth, although a decision maker may accept evidence which contradicts facts essential to a conviction, the decision maker may not express a view that the person was wrongly convicted. Fifth, the decision maker must nonetheless make its own assessment of the entirety of the conduct of the person whose deportation is under consideration, including the nature and seriousness of conduct which led to convictions and the significance of such conduct so far as the risk of recidivism is concerned.
We note her Honour Justice Derrington’s dissent in HZCP but feel bound to proceed in accordance with the analysis and conclusions of the majority.
It follows therefore that notwithstanding that much of the Applicant’s case was directed towards criticism of the Polish justice system generally and suggesting upon us a conclusion that he was wrongfully convicted, it is not open to us to reach such a finding or indeed entertain any qualitative analysis of the Polish criminal process in his case. Such a finding would inevitably impugn the finding of guilt upon which the exercise of statutory power is based.
We do however pause to note that the principles considered in HZCP and the line of authorities from which they emerge all appear to relate to Australian convictions. Neither we nor the parties have been able to identify any judicial consideration of these principles in the context of foreign convictions. Examples of foreign criminal justice regimes at the extremes may be readily identified where Australian decision makers would naturally feel very uncomfortable being bound not to impugn the fact of the conviction or the essential facts leading to the conviction. We do not however consider it is for us to speculate where the limits of the approach outlined in HZCP might lie.
According to the sentencing remarks, the offending episode in the Applicant’s criminal history relevant to this sub-paragraph (a) comprises the Applicant “forc[ing] [the victim] to submit to another sexual activity” in a manner in which the Applicant “kissed [the victim], touched [the victim’s] sexual organs with his hands, and forced [the victim] to undergo oral intercourse”.[5] We find that the offending was sexual in nature and therefore very serious.
[5] Exhibit Supplementary G Doc 1, p 1.
We have considered carefully whether the offending was violent in nature, noting that violent offending against children is another example of offending the government views as very serious and also that if the offending against a child was violent, the offending must be viewed as very serious ‘regardless of the sentence imposed’.
We are of the view that “violent” must be taken to have its natural and ordinary meaning. It is not an absolute term. There is obviously a broad spectrum of actions that may possibly be captured within the concept of “violence”. At one end of the spectrum there may be a threat, duress or the apprehension of harm. At the other end of the spectrum, there may be brutal physical harm occasioning severe bodily injury or even death. Based on the sentencing remarks, the actions of the Applicant cannot be classified as “violent” in our view. The definition of the term “violent” notes:
“of an action: involving or using great force or strength, especially in order to cause injury; not gentle or moderate”
“of a person: habitually using force or violence, especially in order to injure or intimidate others”[6]
[6] L Brown (1993) ‘The New Shorter Oxford English Dictionary Volume 2’, Clarendon Press, p 3583.
The Tribunal is of the view that the court records do not provide evidence of “violence”, or any significant violence, though there is no doubt that there was sexual offending against an underage youth.
After the Applicant unsuccessfully appealed his conviction to the Supreme Court in Warsaw, his case appears to have returned to the District Court where his sentence was wholly suspended. The Tribunal refers to the comments of the District Court on that occasion:
“The examination of the file of the case indicates that formal requirements as provided in art 152 of Executive penal Code have been met and thus it is allowed to apply the suspension of the execution of the imprisonment sentence. The sentence does not exceed the period of 2 years and it has been deferred by 1 year. He meets the requirements of art 69 para 2 of Penal Code. He has only been in breach of law and convicted only once. Since then he has never been in conflict with the law. He runs his own business, he has a food reputation among his clients, he is involved in charitable activities for OHP in Wislica, “Rezonans” club at the Housing Co-operative in Katowice, Caritas of the Katowice Archdiocese. Through his solicitor he has sent a letter to the victim offering to settle the matters without any future issues. Until now the victim has not respondent to that correspondence. Jacek Wojtas is considered in his locality as quite a troubleless person. He pays his alimonies for his children from his previous relationship. He remarried, he helps his family in Ukraine. In the opinion of the Court the process of resocialisation is progressing properly, and the prognosis criminal recovery is positive. In order to verify this criminal prognosis criminal recovery is positive. In order to verify this criminal prognosis the Court has decided to conditionally suspend execution of the sentence for a trial period of 5 years, assuming that this period will allow for full verification of the criminal prognosis. The added element of this decision is the decision to appoint a curator for him.
In view of the above it was decided to agree on this decision”[7]
[7] Translation of Suspension of Conviction, District Court in Bielsko-Biala, dated 21 May 2021.
In sentencing remarks, the court does not describe the Applicant’s conduct as “violent”. It is significant that no term of imprisonment was imposed, rather, it was decided to “conditionally suspend execution of the sentence for a trial period of 5 years… [and] to appoint a curator”[8] to supervise the Applicant. Nonetheless, the offence is one against a minor which is inherently to be regarded as very serious.
[8] Ibid.
We have earlier outlined the offences committed by the Applicant. There was no offending at all prior to 2004 and there has been none since. Furthermore, it appears that at least by 14 July 2020, the Polish convictions were expunged by operation of law. The Applicant therefore has for some time had no officially recognised criminal record in Poland or Australia.
Sub-paragraphs (c), (d), (e) and (i) of paragraph 11.1.1(1) have no application to the current matter.
As to sub-paragraph (f) of paragraph 11.1.1(1) of the Direction, and as we do not characterise the crime as a violent crime, we have considered the sentence imposed by the court for the crime. As discussed above, we note that the Applicant’s sentence was wholly suspended for the reasons explained at paragraph 60, and has now apparently been expunged. While we recognise the offence as being inherently very serious as a sexual offence against a child, we take into account that the court ultimately wholly suspended the sentence.
Sub-paragraph (g) of paragraph 11.1.1(1) of the Direction points a decision-maker to the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness. As the Tribunal has already noted, the Applicant has committed no offences at all since his arrival in Australia in 2014. There has been no reoffending
Sub-paragraph (h) of paragraph 11.1.1(1) of the Direction requires the decision-maker to consider the cumulative effect of repeat offending. Again, there has been no reoffending.
Sub-paragraph (j) of paragraph 11.1.1(1) of the Direction asks whether an offence that was committed overseas, is classified as such in Australia. The Applicant committed, and was convicted of, sexual crimes against a child in Poland. This is classified as an offence in Australia.
Overall, we view the nature and seriousness of the Applicant’s offending as very serious, albeit we recognise that the sentencing court saw fit to wholly suspend the sentence for what in our view is a very serious crime. We recognise also that there has been no previous or subsequent criminal offending of any kind and therefore no demonstrated trends that may serve to increase the seriousness with which we view the offending.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 11.1.2 of the Direction provides factors to be considered in determining the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct. It relevantly states:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.
(2)In addition, decision-makers should have regard to the principle that 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.
(3)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
(ii)evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
(iii)the duration of the intended stay in Australia.
(4)Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.

In relation to subparagraph (3)(a) above, it is clear that if the Applicant were to reoffend it would be serious. Aside from his original conviction in 2009 there is, however, no evidence before the Tribunal to suggest that there is any real risk of the Applicant reoffending.
The offending as found by the sentencing court was recognised to be out of character by the court which subsequently wholly suspended the sentence. The observations made by the court in this regard have been demonstrated to be correct by the Applicant’s unblemished record in Australia.
While we recognise that if the Applicant were to reoffend by committing a crime of a similar nature it would result in serious harm to a victim, we also consider that there is no cogent basis upon which we can conclude that there is any real risk that the Applicant would offend in this way.
In relation to subparagraph (3)(b) above, on all of the evidence before the Tribunal, there is a very minimal likelihood of the Applicant engaging in any criminal conduct whatsoever.
We further note that the Applicant’s visa application that is the subject of this decision is his wife’s Skilled (Provisional) (Class VC) visa. This visa does not grant the Applicant the ability to reside in Australia for an indefinite, or indeed lengthy, period of time.
In relation to subparagraph (4) above, and in the context of the risk of harm, there are compassionate reasons weighing in favour of the Applicant remaining in Australia on a temporary visa. He has a strong connection with his wife and son (which we shall elaborate upon later in these reasons). He is a present and engaged father who plays a significant role in the raising of his son, particularly as his wife is a Nurse and often works long and irregular hours. We take this into account against what we perceive to be a very remote risk that the conduct the subject of the Applicant’s finding of guilt will be repeated in Australia.
Having had regard to the provisions of paragraphs 11.1.1 and 11.1.2 of the Direction and also sub-paragraph 6.3(3) we find that the nature and seriousness of the Applicant’s offending conduct was very serious and as it was of a sexual nature perpetrated against a person under the age of 18, we consider that the Applicant should generally expect to forfeit the privilege of staying in Australia. However, we also find that there is no cogent risk that the Applicant will repeat the conduct given the observations of the sentencing court in deciding to wholly suspend the sentence, and the Applicant’s demonstrated good conduct during the extensive period of time he has already been in Australia as a result of the grant of an earlier visa despite the Applicant having not passed the character test.
In all the circumstances, and subject to the observations we have made, we consider this primary consideration nonetheless weighs in favour of refusing the visa, albeit moderately so.
The best interests of minor children in Australia
Paragraph 11.2 of the Direction sets out the next Primary Consideration the Tribunal should have regard to, and relevantly provides:
(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.
We received evidence from the Applicant, and the Applicant’s wife concerning the interests of the Applicant’s child: “Child 1”. Child 1 is 10 years of age and arrived in Australia at 3 years of age. We accept that he is settled at school and his parents note he maintains strong relationships with fellow classmates. The Tribunal heard evidence from the Applicant and his wife that aside from basic listening skills, Child 1 does not speak Polish or Ukrainian. Ukrainian being the first language of Child 1’s mother. Furthermore, Child 1 does not have any memory of Poland due to his young age when arriving in Australia. Child 1 maintains a strong relationship with both of his parents, with whom he lives. Both parents play an active role in the raising of their son.
We accept the evidence of both witnesses who addressed the best interests of Child 1. Appropriately no real challenge was mounted to the proposition put forward by the Applicant that it was in Child 1’s best interest that the visa be granted so that the entire family unit may remain in Australia. We accept that refusal to grant the Applicant the visa would not be in the best interests of Child 1.
As per sub-paragraph 11.2(2) the decision-maker’s power under this Primary Consideration B is enlivened as the child is under 18 years of age, Child 1 being 10 years of age at the time of this hearing.
We turn to consider the factors set out at sub-paragraph 11.2(4). 11.2(4)(a) directs the decision-maker to consider the nature and duration of the relationship between Child 1 and the Applicant. There exists a strong parental relationship between the two, the Applicant has participated in child-rearing, alongside his wife, since the birth of Child 1. This has continued throughout their time in Australia. Contact during this time has been consistent. The Tribunal heard evidence that the Applicant is often the parent to pick up and drop Child 1 off at school and to take care of him whilst at home due to his wife’s long and irregular working schedule as a Nurse. The Applicant and Child 1 also go on camping trips together, both with and without the Applicant’s wife, for up to weeks at a time. Oftentimes, the Applicant and Child 1 will go fishing together on weekends and during school holidays.
As per sub-paragraph (4)(b) the Applicant will continue to play a central and significant positive parental role into the future. Child 1 does not turn eighteen for another eight years and will require the Applicant’s direct support until this time.
Sub-paragraph (4)(c) directs the decision-maker to take into account whether the impact of the Applicant’s prior and future conduct has, of will have, any negative impact on Child 1. The finding of guilt in respect of the Applicant relates to conduct that took place before Child 1 was born. We consider that there is no cogent basis to consider there is a risk that the Applicant will engage in similar conduct in the future. We do not consider the Applicant’s conduct has had or will have any negative impact on the child.
As per sub-paragraph (4)(d), separation of the Applicant from Child 1 would have a serious adverse impact on Child 1 due to the close relationship they share and the hands-on parental role the Applicant plays. In this regard however, we were unable to extract clear evidence from either the Applicant or his wife about what would happen regarding the family’s living arrangements if the visa were to be refused. Relying on the evidence we have received about the close and functional family bond between the Applicant, his wife and their son, we doubt that if the visa were refused, the Applicant’s wife and son would remain in Australia without the Applicant. We do not consider that refusal of the visa would result in separation of the Applicant from his son but accept that if it did, it would amount to a serious adverse impact on the child. Given the close and functional parental bond, we do not accept that maintaining communication using electronic means would amount to a satisfactory alternative given the level and quality of contact Child 1 is accustomed to with the Applicant.
Sub-paragraph 11.2.(4)(e) points the decision-maker to consider whether there are any other persons that fulfil a parental role in relation to Child 1. The Applicant’s wife plays such role, however, as the Tribunal heard in evidence from the Applicant’s wife, she views it as very important that that the Applicant remains in Australia to assist her. She expressed she would struggle if she was to have to juggle her work and the rearing of Child 1 alone without the support of the Applicant. As mentioned above however, we consider that in reality it would be unlikely that the Applicant’s wife would remain in Australia with the child in the event that the Applicant were required to depart.
We did not receive any evidence as to the views of Child 1. There is no evidence that the Applicant treated the child in any of the ways mentioned in subparagraph 11.2(4)(g) or 11.2(4)(h).
The factors provided for at 11.2(4) generally assume that visa refusal would result in separation from the child. If that were to be the case in respect of the Applicant and Child 1, we accept that this would be a highly adverse outcome for the child and most certainly not in his best interests. However, despite pressing this issue in the hearing, we do not have any clear evidence regarding what would happen if the visa were refused in this regard, and for the reasons set out above we doubt an adverse outcome would result in separation between the Applicant and his son. Instead, we think it more likely that an adverse outcome would result in the Child 1 leaving Australia with both his parents to reside elsewhere – most likely Poland (despite the Applicant vowing not to return to Poland) or Ukraine. In addition to the factors set out in sub-paragraph 11.2(4) therefore, we have also considered whether it is in the best interests of the child that he remain in Australia with both parents.
In this regard, we are mindful that Child 1’s formative years have been spent in Australia. This is the result of the Applicant and his wife being granted temporary visas despite the Applicant having fully disclosed his criminal convictions at all material times. We have accepted the evidence regarding the Applicant being well settled at school with strong relationships with his classmates. We consider that in these circumstances, it would also be in the child’s best interests that the visa not be refused so that the family unit can remain in Australia. We accept that if the visa were refused, the child’s settled and positive childhood would be seriously disturbed. We recognise that the visa in question is not a permanent visa, but also note that the family have resided in Australia for a lengthy period of time and aspire to remain in Australia permanently.
We consider that if the visa were refused with the effect that the Applicant would be separated from Child 1, this would amount to a highly adverse outcome and attract very substantial weight in favour of not refusing the visa. We also consider that if the effect of the visa being refused would be that the family would leave Australia together, this would also amount to an adverse outcome for Child 1 that would not be in his best interest, albeit to a lesser degree of magnitude. On balance, having regard to the provisions of paragraph 11.2 of the Direction we find that the refusal of the Applicant’s visa would not be in the best interests of Child 1. We consider this weighs heavily in favour of not refusing the grant of the Applicant’s visa.
Expectations of the Australian community
Paragraph 11.3 of the Direction provides that 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 visa application of such a person.
The Respondent emphasises that refusal may be appropriate simply because the nature of the character concern or offence is such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
We note that in accordance with observations made in FYBR v Minister for Home Affairs [2019] FCAFC 185 the concept of community expectations is not a matter to be measured as though it is a provable fact, but rather an assessment of community values made on behalf of the community by the executive government. We are obliged to consider this factor in line with the norms expressed in the Direction.
We note in this regard that the Principles espoused at item 6 of the Direction specify that the Australian community expects the Australian government can and should refuse entry to non-citizens if they commit serious crimes in Australia or elsewhere. Although the Australian government has previously granted entry to the Applicant despite full disclosure of his convictions, we interpret this guidance to include the refusal of subsequent visas.
We further note that the guidance in the direction explains that a non-citizen who has committed a serious crime, including of a sexual nature… particularly against children should generally expect to forfeit the privilege of staying in Australia. Given the expression of this principle in the Direction therefore, we consider therefore that the expectations of the Australian community are that the visa should be refused. We ascribe moderate weight to this consideration in all the circumstances, taking into account that the Applicant has resided in Australia for a lengthy period of time and has contributed positively through the operation of his business, consistently with the principle enunciated at 6.3(7) of the Direction.
We think it is significant in ascribing weight to this consideration that the expectations of the community did not result in visa refusal at the time of the Applicant’s first visa application for Australia, and the Applicant has not subsequently engaged in any criminal conduct. We consider ascribing any more than moderate weight to this consideration would not be logical or appropriate in these circumstances.
The non-primary considerations
In deciding whether to refuse to grant the visa, Other Considerations must be taken into account where relevant. These considerations, as set out in paragraph 12(1) of the Direction, include, but are not limited to:
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims; and
(d)Impact on Australian business interests.
The Tribunal will address these Other Considerations, where relevant, in turn.
International non-refoulement obligations
The Applicant does not raise any matters that amount to a fear of harm if refouled to any country, including his country of nationality.
Impact on family members
Paragraph 12.2(1) of the Direction provides that, where relevant, decision-makers must have regard to the following:
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.
The Applicant’s wife and son do not presently have the right to remain in Australia indefinitely as they are on a temporary visa. The impact of the decision on them does not therefore fall within the terms of this consideration.
Impact on victims
Paragraph 12.3(1) of the Direction provides that, where relevant, decision-makers must have regard to the following:
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.
There is no evidence addressing this factor before the Tribunal, and we do not consider the decision to grant or refuse the visa would have any consequence on the victim of the offending or his family members.
Other Consideration 4: Impact on Australian business interests
Paragraph 12.4(1) of the Direction provides that, where relevant, decision-makers must have regard to the following:
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.
While the Applicant contributes to Australia business as a skilled tradesman, and we heard evidence in this regard from one of the Applicant’s satisfied customers, we do not consider that the Applicant’s positive reputation and skill as a businessman rises to the significance required to carry weight in this matter.
While we have considered the evidence before us against the non-primary considerations as set out in the Direction, we do not consider that any of these non-primary considerations carry material weight for our purposes.
Conclusion
For the reasons expressed above, we have found that the Applicant has not satisfied us he passes the character test and we have turned to consider the various matters we must consider in deciding whether to refuse to grant the visa as a consequence.
We consider that the nature and seriousness of the Applicant’s offending is very serious, but we have noted that the Applicant has not committed any further offences, including while residing in Australia for many years. We consider it significant that the sentencing court saw fit to wholly suspend the sentence imposed on the Applicant, notwithstanding that the offending is very serious in its nature.
We consider that there is no cogent risk that the Applicant will engage in further criminal conduct in circumstances where he has not subsequently done so, and in light of the observations made by the court that decided to suspend his sentence. We have placed moderate weight on this consideration. This is not a case in our view where the Applicant presents an unacceptable risk to the community, or indeed any particular risk at all.
We consider that the best interests of the Applicant’s child will be served by not refusing to grant the visa. We have placed significant weight on this primary consideration.
We consider that the expectations of the community, formed in accordance with the norms set out in the Direction, would be that the visa should be refused. We have placed only moderate weight in this consideration in all the circumstances of this case however, for the reasons elaborated upon above.

We have found that the non-primary considerations have not materially added weight for or against the refusal of the visa.
On balance, we consider that the reduced weight we have ascribed to need to protect the Australian community on account of the absence of any cogent risk of reoffending, and the significant weight we have ascribed to the best interests of the Applicant’s child would lead us to not refuse to grant the visa in the exercise of discretion, undertaken in accordance with the Direction.
This is why we set aside the decision under review on 9 April 2021, and directed that the visa not be refused pursuant to subsection 501(1) of the Act.

I certify that the preceding 114 paragraphs are a true copy of the reasons for the decision herein of Member M Kennedy and Senior Member J Rau SC.

…………[Sgnd]……………

Administrative Assistant Legal

Date of publication or reasons: 11 May 2021

Date of hearing: 18 March 2021, 6 April 2021, and 7 April 2021

Advocate for the Applicant: Ireneusz Lasocki, Destination Southern Cross

Advocate for the Respondent:
Paul d’Assumpcao, Howard Zelling Chambers

Will Sharpe, HWL Ebsworth Lawyers

[2021] AATA 1259

9 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Date of publication or reasons:	11 May 2021
Date of hearing:	18 March 2021, 6 April 2021, and 7 April 2021
Advocate for the Applicant:	Ireneusz Lasocki, Destination Southern Cross
Advocate for the Respondent:	Paul d’Assumpcao, Howard Zelling Chambers Will Sharpe, HWL Ebsworth Lawyers