WXDX and Minister for Immigration and Border Protection (Migration)

[2017] AATA 2851

WXDX and Minister for Immigration and Border Protection (Migration) [2017] AATA 2851 (21 November 2017)

Division:                  GENERAL DIVISION

File Number:           2017/5406

Re:WXDX

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Date:21 November 2017

Place:Brisbane

The decision under review is set aside and substituted, such that the Tribunal finds the Applicant passes the character test under section 501(6) of the Migration Act 1958 and his Bridging visa should not have been refused on this ground.  

.........................[SGD]............................

Senior Member Theodore Tavoularis

MIGRATION – visa refusal – Applicant failed character test under s 501(6)(d)(ii) – alleged risk that he would harass, molest, intimidate or stalk another person in Australia – evidence of risk unproven – no criminal history or other reason why Applicant did not pass character test – Tribunal found Applicant did pass character test – Visa should not have been refused on character grounds - Decision set aside and substituted.

Legislation

Migration Act 1958 (Cth), ss 500, 501,
Domestic and Family Violence Protection Violence Act 2012 (Qld), ss 8, 37

Secondary Materials

Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA (the “Direction”)

REASONS FOR DECISION

Senior Member Theodore Tavoularis

21 November 2017

INTRODUCTION

1. This is an application for review of the decision by a delegate of the Minister of Immigration and Border Protection (the “Minister” or “Respondent”) to refuse “WXDX”[1] (“the Applicant”) a Bridging E (Class WE) visa, pursuant to s 501(1) of the Migration Act 1958 (Cth) (“the Act”).

   [1] The Applicant’s name has been suppressed due to the Applicant’s related application for a safe haven visa. The Tribunal has also issued an Order pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 prohibiting the publication or disclosure of the Applicant’s name or identifying information.

2. Under s 500(1)(b) of the Act, this Tribunal has jurisdiction to review the decision made by the Minister’s delegate.

   BACKGROUND

3. The Applicant is a citizen of [redacted]. He has just turned [redacted] years of age. He first entered Australia on [redacted] 2012 as an unauthorised maritime arrival and, subsequent to being processed on Christmas Island has resided in Australia since then.

4. At the end of 2014, whilst residing in [redacted], the Applicant met an Australian female citizen (who shall not be named) and they entered into a relationship. Evidence was given about the relationship ceasing for a period of approximately [redacted] months whereby the Applicant moved to [redacted] and his girlfriend to the [redacted].

5. While in [redacted], the Applicant met another woman. This came to the attention of his first girlfriend, who now lived at [redacted]. The Applicant eventually rekindled his relationship with the girlfriend at [redacted] and relocated there to live with her (hereinafter referred to as the “[redacted] girlfriend”).

6. As best as I understood the evidence, the couple lived together until [redacted] 2016 at which time the [redacted] girlfriend obtained a Protection Order and he was required to vacate the domestic premises where she resided.

7. The Applicant has no offending history in Australia or [redacted]. He has, however, been the named Respondent in a Protection Order(s) made at the [redacted] Magistrates Court. I will briefly expand upon the circumstances surrounding that:

   ·     On [redacted] 2016 the Applicant’s [redacted] girlfriend filed an Application for a Protection Order at the [redacted] Magistrates Court Registry.[2]

   ·     On [redacted] 2016 the [redacted] Magistrates Court issued, on an ex parte basis, a Temporary Protection Order naming this Applicant as the Respondent.[3] 

   ·     On [redacted] 2016 the Applicant was served with the Application for A Protection Order and Temporary Protection Order.[4]

   ·     On [redacted] 2016 the Applicant attended the Southport Magistrates Court and consented to the issue of a Protection Order without admissions.[5]

   ·     On [redacted] the [redacted] girlfriend (who was named as the aggrieved in the Protection Order) made an Application for variation of the Protection order. In that Application she requested that the order end “as soon as possible”. The reasons given noted that she “strongly believe now that he will not be a risk to me or my children”.[6]

   ·     On [redacted] the [redacted] Magistrates Court issued a variation to the abovementioned Protection Order such that the order was to end at midnight on [redacted] 2017. This Order was also made on an ex parte basis.[7]  

   [2] See Exhibit 4, Summons records, pp 16 – 25.

   [3] See Exhibit 4, Summons records, pp 36 – 37.

   [4] See Exhibit 4, Summons records, pp 78-79.

   [5] See Exhibit 4, Summons records, pp 52 – 53.

   [6] See Exhibit 4, Summons records, pp 26 – 29.

   [7] See Exhibit 3, G documents, G3 p 69 – 70.

8. On [redacted] 2017 the Applicant lodged an application for a Safe Haven Enterprise (Class XE) Visa (“SHEV”). In association with that application the Applicant applied for a Bridging E (Class WE) visa (“the Bridging visa”). The subsequent refusal of his Bridging visa is the subject of the current review before me.

9. On [redacted] 2017 the Respondent’s Department wrote to the Applicant giving him Notice of their intention to consider refusal of his Bridging visa application under section 501(1) of the Act.[8]

   [8] See Exhibit 3, G documents, G3, pp 54 – 57.

10. On [redacted] 2017 a National Police Certificate was issued by the Australian Federal Police. It certified that there are no disclosable court outcomes recorded against the name of the Applicant as at [redacted] 2017.[9]

    [9] See Exhibit 3, G documents, G3, p 58.

11. On [redacted] 2017 the Applicant, via his legal representative, made representations to the Department in response to the Notice of intention to consider refusal. He also provided various ancillary documents.[10]

    [10] See Exhibit 3, G documents, G3 Attachment E.

12. On [redacted] 2017 a delegate of the Minister made a decision to refuse the Applicant’s Bridging visa application under section 501(1) of the Act. Notice of the visa refusal decision was sent to the Applicant’s representative by email the same day and the Applicant was taken into immigration detention.[11]

    [11] See Exhibit 3, G documents, G2, pp 11-26.

13. On [redacted] 2017 the Applicant applied to this Tribunal for review of that visa refusal decision.

    ISSUES

14. The decision to refuse the Applicant’s visa was made on the ground that the Minister’s delegate was not satisfied that the Applicant passed the character test, having specific reference to subsection 501(6)(d)(ii) of the Act. After taking into account the relevant considerations, the Minister’s delegate decided to exercise the discretion in subsection 501(1) of the Act to refuse to grant the Applicant’s Bridging visa.

15. The issues for this Tribunal to consider are essentially the same, being:

    (a)whether the Applicant passes the character test as defined in s 501(6) of the Act; and

    (b)if he does not pass the character test, whether the discretion in s 501(1) of the Act should be exercised to refuse to grant the Applicant a Bridging visa.

    ISSUE 1: CHARACTER TEST

16. The first issue I must consider is whether the Applicant passes or fails the character test as defined in s 501(6) of the Act.

17. The delegate of the Minister found that the Applicant did not pass the character test pursuant to subsection 501(6)(d)(ii) of the Act, which relevantly provides:

    “(d)  in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

    (ii)  harass, molest, intimidate or stalk another person in Australia;”

18. The Minister’s delegate considered that there was a risk the Applicant would harass, molest, intimidate or stalk another person in Australia, having regard to his (abovementioned) domestic and family violence history and the risk of him reoffending in the future.[12]

    [12] See Exhibit 3, G documents, p 22, at [3].

19. I have misgivings about the nature of the evidence upon which the delegate’s decision was based. These misgivings surfaced during the course of the hearing before me. I notified the representatives of those misgivings which can be canvassed as follows.

    Protection Order – made by consent and without admissions

20. It is clear from the material that when the Protection Order was made on [redacted] 2016, the Applicant was present in Court and, on his evidence he had the benefit of brief legal advice before any order was made. His further evidence was that prior to the matter being called on, he specifically sought advice as to whether his consent to the making of a Protection Order would, in any material respect, affect his visa and/or immigration status. His sworn evidence at the hearing before me was that he was advised that consenting to the Protection Order would not impact on his visa/immigration status at all. On that basis, the Applicant: (1) consented to the making of a Protection Order, and (2) did so without admissions.[13] 

    [13] See Exhibit 4, Summonsed documents, pp 52-53.

21. In circumstances where the Protection Order was made by consent without admissions, it is reasonable to assume that the issuing Magistrate would not have undertaken the exercise of testing and considering the evidence constituting the basis upon which that order was sought. I note that a Temporary Order was made on [redacted] 2016 apparently in the absence of the Applicant.

22. I note, that a protection order can be made if a Court is satisfied that:

    (a)A relevant relationship exists between the aggrieved and the respondent; and

    (b)The respondent has committed domestic violence against the aggrieved; and

    (c)The protection order is necessary or desirable to protect the aggrieved from domestic violence.[14]

    [14] See Domestic and Family Violence Protection Violence Act 2012 (Qld), s 37(1).

23. It is important to note that “a court may make an order under this Act on the basis that the behaviour is domestic violence even if the behaviour is not proved beyond reasonable doubt.”[15]

    [15] Domestic and Family Violence Protection Violence Act 2012 (Qld), s 8(4).

24. The above requirements, to my mind, rightly, constitute a relatively low threshold which, of course, is specifically designed to both prevent but also pre-empt the commission of acts that may result in domestic violence.

    Wording of Reasons for Protection Order

25. There is little or no doubt that the Temporary Order, and following that, the Protection Order, was issued on the basis of the allegations contained within the handwritten Application for a Protection Order dated [redacted] 2016, which was completed by the [redacted] girlfriend.

26. My misgivings about the evidence begin with the possible misinterpretation of what is recorded in the [redacted] girlfriend’s application. Close scrutiny of her reasons behind seeking the Protection Order application is warranted. My apprehension is that the Minister’s delegate may have inadvertently proceeded to determine the matter on a misinterpretation of what the [redacted] girlfriend recorded in that application. I will quote what she had to say in full:

    “Please state reasons below:
    

    [16] See Exhibit 4, Summons Documents, p 18.

    I used to live in [location redacted] with my [redacted] children when I met [the Applicant]. I soon found out that he was a killer and a child milaster (sic) back in [redacted]. Child protection and few other organisations that found out about him, they were concerned about our safety and transferred us to here to woman refuge, [redacted] 2016. Reason here because my children’s father lives in [location redacted]. After he found out where I was he sent me a text saying “I know where you are, I will come and deal with you in person.” I was transferred to different woman Refuge with my children. Finally after I sittle (sic) down he came back to my life – 3 months ago and started abusing me and over controlling me. I can’t sleep worrying about what would he do after this form…. In [redacted] he came to my place at night and checked everywhere to see if there is another man here said I will kill u if I see u with another man.”[16]  (my underlining)

27. The Applicant before me is not the father of the [redacted] girlfriend’s [redacted] children. In her application, she makes a clear reference to “my children’s father”. Then she says “…After he found out where I was he sent me a text saying…”. The “he” she is referring to must surely be her previous partner who is the father of her [redacted] children. It cannot be the Applicant or at the very least, there must surely be significant doubt as to whether it is the Applicant.

28. Consistent with this line of thinking was the unequivocal evidence of the Applicant given under cross-examination. He conceded that they had their differences and argued on occasion but he was adamant that: (1) he was not abusive towards her, and (2) most certainly was not the person who sent her that text message, and (3) nor did he enter her residence at night to search for another man and threaten to kill her. Given the history of the relationships of the [redacted] girlfriend, it is more than plausible from the totality of the evidence before me that the Applicant may well have been the “other man” that the former husband/partner was apparently looking for. 

    Variation of Protection Order

29. There then followed on [redacted] 2017 an Application by the [redacted] girlfriend for the variation for the domestic violence (Protection) Order.[17] It is important to quote the salient parts of that variation application.

    “3. Details of Variation

    A)Do you want to vary the conditions of the order?          No

    B)Do you want to vary the duration of the order?              Yes

    When would you like the protection order to end?               As soon as possible
    Give reasons:
    

    [17] See Exhibit 4, Summons Documents, pp 26 – 31.

    [18] Exhibit 4, Summons documents, p 27.

    I strongly believe now that he will not be a risk to me or to my children.”[18]

30. For the avoidance of doubt as to whether or not the [redacted] girlfriend knew what she was applying for with this variation, earlier in the document the following question is put to her: “Do you require an interpreter?” her answer to that question “No”.

31. Her stated reasons for seeking a variation and termination of the Protection Order were as follows:

    “The reason that I want to terminate the DVO order is because I got all the info that I mentioned in my statements were from his friends and they didn’t even witness any of the above... all his friend/s wanted in return to ruin my relationship with [the Applicant] and they wanted to be in my life in returne (sic). Since the order was made [the Applicant] never tried to contact me or come near me or my children. Therefor (sic) I don’t believe that he will ever hurt me or my children. I was always pushed by his friends to get a DVO to deport him. They always mentioned that he is a bad person and never trust him etc.”[19]
    

    [19] Exhibit 4, Summons documents, p 28.

    (my emphasis)

    Protection Order Varied and Terminated

32. On [redacted] 2017, as the practical and legal consequence of the [redacted] girlfriend’s variation application, the [redacted] Magistrates Court issued a “Protection Order Varied Order”.[20] That Order relevantly maintains the pre-existing conditions, but critically provides a new paragraph 18 as follows:  “(18)   Order to end at Midnight on [redacted] 2017”.

    [20] See Exhibit 3, G documents, G3, E5, pp 69 – 70.

33. To be clear, it should be noted that the Protection Order ended on the very day that the Variation Order was made. Once again, the Order further notes that the Applicant (in our matter), who was the Respondent named in the Order, “was not present in Court when this order was made”.

    Affidavit withdrawing certain allegations

34. On [redacted] 2017, in addition to having applied for the Protection Order to be varied and terminated, the [redacted] girlfriend then made a duly sworn Affidavit clarifying her position in relation to the Protection Order.

35. Relevantly, in that Affidavit she says:

    “1. I am the Aggrieved in an Application for a Domestic and Family Violence Protection Act Protection Order naming [the Applicant] as the Respondent. I have [redacted] children to my former marriage. Sometime after the end of my marriage I formed a couple relationship with the Respondent. At that time I was residing in [redacted].

    2. In [redacted] I decided to move with my children to [redacted] so that the children could be closer to their father and spend more time with him. At this time the Respondent did not move with me, rather he moved to [redacted]. I was aware that he was in contact with another woman although we also remained in contact.

    3. I wanted the Respondent to make a choice between myself and the other woman. I was angry and hurt. At this time, a mutual friend told me a number of troubling things about the Respondent. This person advised me that I should take out a Protection Order Application on the basis of the thing things I had been told by this person. I did this, even though I had never seen the Respondent exhibit any of the behaviours listed in the Application.

    4. I have since come to realize that the mutual friend had personal motivations for telling me things about the Respondent and encouraging me to take out a Protection Order Application. This mutual friend’s intention was to form a relationship with me.

    5. I no longer accept or believe that the allegations are true. I have never feared that the Respondent would commit domestic violence against me. I have never feared that the Respondent would harm the children in any way or commit acts of associated Domestic Violence. I do not want or need a Protection Order.

    6. I wish to withdraw my Application and cancel the Temporary Protection Order naming [the Applicant] as Respondent.

    7. All the facts and circumstances herein deposed to are within my own knowledge save such as are deposed to from information only, and my means of knowledge and sources of information appear on the face of this my Affidavit. …”[21]

    (my emphasis added)

    [21] Exhibit 4, Summons Documents, pp 68 – 69.

36. The following things are clear from the Affidavit:

    (1)The [redacted] girlfriend conceived and put into effect a legal process constituting the making of a Temporary and further Protection Order on hearsay she was told by a “mutual friend” who had “personal motivations” for saying these things to the [redacted] girlfriend.

    (2)She rejects the hearsay and comes to the view that she “…no longer accept(s) or believe(s) that the allegations are true”. She adds that she has “…never feared [the Applicant] would commit domestic violence” against her or her children.

    (3)The Affidavit was filed in the domestic violence proceedings held at the Magistrates Court of Queensland in the [redacted] Registry. It was not made for the sole purpose of assisting or ameliorating the Applicant’s visa/immigration status.

37. Taken in totality, the matters deposed to in this Affidavit only serve to reinforce my belief that the presiding Magistrate who originally made both the Temporary and further Protection Orders did so without consideration or testing of the evidence originally propounded in the [redacted] girlfriend’s Application for a Protection Order.

38. Applications of the type before me, are indeed, matters involving life and liberty. I therefore developed misgivings about taking into account domestic violence allegations against this Applicant which are (1) not provably attributable to him, and (2) were subsequently withdrawn – completely – by the [redacted] girlfriend. I maintain those misgivings.

    Non-attendance of [redacted] Girlfriend at Hearing

1. At the hearing I noted the [redacted] girlfriend was not proposed to be called as a witness. I found this somewhat curious given her Affidavit of [redacted] 2017. The Applicant’s initial position was that the [redacted] girlfriend was not intended to be called as a character or other witness, because he was no longer in any form of relationship with her and had ceased contact.

2. There was brief discussion at the hearing as to whether the onus of calling the [redacted] girlfriend was in fact on the Respondent given that it appeared to be on the basis of her original application for the protection order that the Minister’s delegate had failed the Applicant on the character test. The Applicant was content to rely on the more recent and duly sworn Affidavit of the [redacted] girlfriend.

3. At my instigation, the Applicant’s representative subsequently made enquiries as to the [redacted] girlfriend’s availability to give evidence. The [redacted] girlfriend’s position was that she refused to attend the hearing without being compelled to do so by way of summons. I was mindful of the time-limited nature of applications of this type. It was within the realm of the Tribunal’s power to issue the necessary summons but this to my mind would likely have jeopardised the due completion of the matter within the stipulated statutory timeframe.

4. I therefore considered the totality of the [redacted] girlfriend’s written evidence based on the plain wording appearing on the face of each of the documents. I have reached the preceding conclusions on that basis.

5. My conclusions and findings were fortified by having regard to the timeline of events as they gradually transpired. As canvassed above in the Background of events:

   ·     the Application for variation of Protection Order ([redacted] 2017); and

   ·     the Affidavit of the [redacted] girlfriend (sworn [redacted] 2017) which clarified her reasons for the original application; and

   ·     the Protection Order Varied Order (made [redacted] 2017); 

   were all made some months before the Respondent’s Department issued the Notice of Intention to consider visa refusal on [redacted] 2017.[22] This timing of events, to my mind, alleviates any concern that the [redacted] girlfriend was acting to protect the Applicant’s visa/immigration status.

   [22] See Exhibit 3, G documents, pp 54-57.

   Consideration of Risk

6. The Tribunal must be mindful of and assess the risk that this Applicant will harass, molest, intimidate, or stalk another person in Australia. A few things can be said about that. First, a reliable guide about the future risk is the Applicant’s compliance with both the Temporary and further Protection Orders that were made against him. Second, the complete absence of any criminal history in Australia[23] (or evidence of any such history in [redacted]). Third, the sworn evidence of the [redacted] girlfriend, some six months after the making of the Temporary and further Protection Orders, is that she “never feared” the Applicant would commit domestic violence against her or her children. Fourth, in applying for the variation order the [redacted] girlfriend acknowledges the Applicant’s compliance with the Orders and says: “…I don’t believe that he will ever hurt me or my children.”

   [23] See Exhibit 3, s 501 G documents, p 58 “National Police Certificate”, and p 91 “Crimtrac report”.

7. Regard should also be had to what Ministerial Direction No. 65 has to say about the future risk considered in s 501(6)(d) of the Act. As is made clear in that Direction:

   “(2) The grounds are enlivened if there is evidence suggesting more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.

   (3) It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.”[24]

   (my underlining)

   [24] See Direction No. 65, Annexure A, paragraph 6 at p 119 of G documents (Exhibit 3).

8. For present purposes I do not consider there is more than a minimal or remote chance that if allowed to remain here the Applicant would engage in conduct contemplated by

   
   

   s 501(6)(d)(ii) of the Act. Further, what he has done (if he has in fact done it) is in the past. I do not consider there is any appreciable or other risk that he would engage in the contemplated conduct in the future.

9. It should also be noted that the Applicant has a history of apparently responsible and consistent employment both in Australia and in [redacted]. In [redacted] he was contracted to the [redacted] to perform various humanitarian tasks ranging from provision of vocational skills and income opportunities for at risk individuals, such as widows, orphans, the disabled and the elderly. He was also tasked with the creation of jobs in regional areas via [redacted] and to assist with the increase in fruit crop productivity and to thus make a contribution to the reduction of poverty in the program areas.[25]

   [25] See Exhibit 3, s 501 G documents, p 66.

10. He has readily applied himself to work in Australia. His primary area of expertise seems to be in [redacted].[26]  There is also reference to him being employed with an [redacted] business.[27]

    [26] See Exhibit 3, s 501 G documents, p 43.

    [27] See Exhibit 3, s 501 G documents, p 88.

11. His written character references speak well of him. He is regarded as “…an honest, polite and well behavioured (sic) gentleman” who is of “…no risk to Australia and the community.”[28] He is also noted to be a person of good character who is a very friendly, reliable and respectful person.[29] He is also noted to be a “quiet, but hardworking man…” well regarded by his peers in the local [redacted] community.[30] 

    [28] See Exhibit 3, s 501 G documents, p 85.

    [29] See Exhibit 3, s 501 G documents, pp 87.

    [30] See Exhibit 3, s 501 G documents, p 86.

12. To be fair to the Respondent, I do note that none of these character witnesses were called to give evidence at the hearing before me. I can therefore attach only limited weight to what they say.

    Conclusion about character

13. Having regard to the totality of the evidence before me, I therefore have significant concerns about finding that the Applicant does not pass the character test under subsection 501(6)(d)(ii) of the Act, on the basis of a risk that he will harass, molest, intimidate, or stalk another person in Australia.

14. I have grave difficulty in finding this Applicant does not pass the character test under this provision, in circumstances where: (i) the only evidence to substantiate any such risk is now completely withdrawn and retracted domestic violence allegation(s); (ii) he has absolutely no criminal history in Australia (or his country of origin); and (iii) he has complied with the terms of the Protection Orders and has otherwise duly and impeccably observed the laws of this country.

15. I am particularly mindful of the quite dreadful nature and content of the allegations originally made by the [redacted] girlfriend that, in turn, grounded the Temporary and further Protection Orders. I am aware that the Australian community would normally and rightly expect that someone with a domestic violence history or convictions of the type originally alleged by the [redacted] girlfriend, should not hold a visa. I am also mindful of the Government’s views in this respect.

16. As I have sought to demonstrate, I have serious misgivings about determining the issue of character on the basis of an allegation(s) that is not provably attributable to the Applicant before me and where, on any reasonable view, the untested nature of the evidence could very well indicate the conduct relates to another individual.

17. After giving this indication to the parties during the hearing, I directed the Respondent’s representative to seek instructions on whether the Respondent intended to rely on any other ground in section 501(6) of the Act as to why the Applicant does not pass the character test. Following an adjournment, the Respondent’s representative confirmed there were no such instructions or additional evidence and that I should decide the matter on the material before me.

18. On the evidence before me I do not find that this Applicant poses a risk that he will harass, molest, intimidate or stalk another person in Australia, pursuant to section 501(6)(d)(ii) of the Act. Additionally, I find that there is no other evidence before me that this Applicant does not pass the character test under another provision in section 501(6) of the Act.

19. Accordingly, I am satisfied that the Applicant passes the character test in section 501(6) of the Act. It is therefore unnecessary to consider exercising the discretion in section 501(1) of the Act to refuse the Applicant’s Bridging visa.

    DECISION

20. I set aside the decision under review and substitute it with a finding that the Applicant passes the character test in section 501(6) of the Migration Act 1958 and his Bridging visa should not have been refused on this ground.

I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

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

Associate

Dated: 21 November 2017

Date of hearing:	16 November 2017
Solicitors for the Applicant:	P. Chand, Chand Lawyers
Solicitors for the Respondent:	E. Cannon, Clayton Utz