XBYJ and Minister for Immigration and Multicultural Affairs (Migration)

Case [2025] ARTA 134

XBYJ and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 134 (6 February 2025)

Applicant/s:  XBYJ 

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:                2024/9688

Tribunal:  Senior Member A Mercer    

Place:Melbourne

Date:6 February 2025

Decision:Pursuant to section 105(c) of the ART Act 2004 (Cth), the Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that:

·the Applicant’s application for a Class XA subclass 866 Protection visa is not refused under s 501(1) of the Migration Act 1958 (Cth).

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

Senior Member A Mercer

Catchwords

MIGRATION – refusal of Applicant’s permanent Subclass 866 (Protection) visa – sexually based offences involving a child – BVR – Direction 110 – Protection of the Australian community

Legislation

Migration Act 1958 (Cth)

Migration Amendment (Bridging Visa Conditions) Regulations 2024 (Cth)

Migration Amendment (Removal and Other Measures) Act 2024 (Cth)

Migration Regulations 1994 (Cth)

Cases

Minister for Immigration, Citizenship and Multicultural Affairs v RGKY [2022] FCAFC 177

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37

YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40

HWLJ v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 1039

CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Minister for Home Affairs v HSKJ [2018] FCAFC 217

BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181

BHL19 v Cth of Australia (No. 2) [2022] FCA 313

AJL20 v Cth of Australia [2020] FCA 1305

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL  [2021] FCAFC 48

Secondary Materials

Direction 110 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a decision under s 501CA

Exhibit HB 1 – Hearing Book containing Minister’s and Applicant’s submissions and documents

Statement of Reasons

  1. On 14 October 2024, the Administrative Appeals Tribunal (the AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.

  2. This matter concerns an application for review of a decision by a delegate of the Respondent to refuse to grant the Applicant a Class XA subclass 866 Protection visa pursuant to s 501(1) of the Migration Act 1958 (Cth) (the Act).

  3. In reconsidering this matter, the Tribunal must decide if the Applicant passes the character test; and, if he does not, whether there is another reason the refusal of his visa should be set aside.

    BACKGROUND

  4. The Applicant was born in Iraq in September 1989. The Applicant is the youngest of 11 siblings, three of whom are deceased. Two…

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AGLC
XBYJ and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 134
Case
[2025] ARTA 134
Decision Date

CaseChat Overview and Summary

The matter before the Tribunal involved the Applicant, who was born in Iraq in 1989 and migrated to Australia in 2013, and the Minister for Immigration and Multicultural Affairs. The Applicant was seeking a reconsideration of the refusal of his application for a permanent Subclass 866 (Protection) visa due to his criminal convictions involving sexually based offences against a child. The Tribunal was tasked with determining whether the Applicant met the character test for visa eligibility and, if not, whether there were other grounds to set aside the visa refusal.

The central legal issues before the Tribunal were whether the Applicant's criminal conduct, specifically his convictions for using a carriage service to procure a person under 16 and to solicit child pornography, rendered him unfit to hold a visa under the Migration Act. The Tribunal was required to balance these factors against other considerations, such as the best interests of the Applicant's minor child in Australia, his ties to Australia, and the expectations of the Australian community.

The Tribunal found that while the Applicant's criminal conduct was serious and concerning, particularly due to its sexual nature and involvement of a child, the majority of other factors weighed in favour of not refusing his visa application. This included the Applicant's employment ties to Australia, the lack of evidence that his departure would significantly harm the company, and the potential in the best interests of his child to have contact with both parents. The Tribunal acknowledged the seriousness of the Applicant's offences but also recognised his rehabilitation efforts and the possibility of reintegration into Australian society under supervision.

Ultimately, the Tribunal concluded that the Applicant's character was not such that refusal of his visa was mandatory under the Migration Act. Given the various factors considered, the Tribunal determined that there were no grounds to refuse the Applicant's visa application. The Tribunal ordered that the decision to refuse the Applicant's visa be set aside.

Orders

Orders of the court

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Background

Background to the litigation

In reconsidering this matter, the Tribunal must decide if the Applicant passes the character test; and, if he does not, whether there is another reason the refusal of his visa should be set aside. BACKGROUND The Applicant was born in Iraq in September 1989. The Applicant is the youngest of 11 siblings, three of whom are deceased. Two older brothers of the Applicant died in separate accidents before the Applicant was born, while another older brother died in a bombing incident in 2016, after the Applicant had migrated to Australia. Of the Applicant’s remaining siblings, he has one older brother in the United States, one older brother in Jordan, one older brother in Australia, two older sisters in Iraq, one older sister in Jordan, and one sister in Australia. The Applicant’s parents are both deceased, his father having died in Iraq in 2014 and his mother in Jordan in 2019. The Applicant and his family are members of the Chaldean/Assyrian Christian community in Iraq (and in Australia). In Iraq, the family resided in Baghdad. In 2003, the United States sent troops into Iraq and conditions there deteriorated significantly. The Applicant was approximately 13 and a half at this time. During 2006, the Applicant was injured in a bomb blast from which he recovered after six months in hospital. He was able to complete secondary schooling to the age of approximately 15 and worked in an electrician business operated by his older brother(s). In 2011, the Applicant and his older brother and his older brother’s family fled Iraq for Turkey after the family received threats apparently relating to their religion and to work undertaken by the family electrician business for the occupying US forces. In 2013, the Applicant and his older brother and his family were granted permanent Class XB subclass 200 Humanitarian visas and the Applicant arrived in Australia on 7 February 2013 as the holder of this visa. He lived with his brother and his brother’s family in suburban Melbourne. The Applicant obtained employment at a food company in 2013, a job he held until 2018 and which he recommenced in November 2024. He also worked as a cleaner for a period in addition to his early years of employment at the food company. The Applicant married his wife, an Australian, on 4 June 2016. The Applicant’s wife is also a person of Iraqi Chaldean Christian background. The couple had a son in April 2017. On 13 December 2017, the Applicant was committed for trial in the County Court of Victoria for the following offences, allegedly committed between 29 July 2017 and 30 July 2017:(1)Using a carriage service to procure a person under 16 – s 474.26 of the Criminal Code; and(2)Using a carriage service to solicit child pornography – s 474.19 of the Criminal Code. The Applicant pleaded guilty to both offences, and on 27 April 2018, he was convicted of both offences. He received an aggregate sentence of 3 years’ imprisonment but was to be released on recognisance after 12 months, subject to him paying $1,000 and being under the supervision of the Community Corrections Service (CCS) for 24 months (this included attending any treatment or courses deemed suitable for him by CCS, notifying any change of address and not leaving Victoria without CCS permission). Pullen J of the County Court of Victoria also ordered that the Applicant be placed on the Sex Offenders’ Register for 15 years.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On balance, the Tribunal considers that the majority of these factors weigh in favour of not refusing to grant the Applicant a subclass 866 visa.Best interests of minor children in Australia affected by the decision Clause 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under cl 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501 of the Act is or is not in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ. Applicant’s son It is not disputed that the Applicant is now legally divorced from his wife and has not had contact with her or their son, now aged approximately 7, since March 2022. The Applicant’s evidence was that he did maintain contact with his son via his wife while he was in jail and for part of the period that he was in immigration detention, via phone calls and videoconferences. The Applicant did not consider that it was in his son’s best interests to visit the Applicant in in person in jail or immigration detention, a view apparently shared by the Applicant’s ex-wife. The Applicant further indicated that since then, he had sought legal advice from a family lawyer, who advised him that while he remained in immigration detention and/or potentially subject to removal as the holder of a BVR, the Family Court was unlikely to decide it was in his son’s best interests to have regular contact with the Applicant due to the uncertainty over the Applicant’s immigration status and the effect on his son if contact was re-established and then the Applicant had to depart Australia permanently. The Applicant stated that he strongly wished to re-establish contact with his son and play a part in his life as his father, to be able to provide his son with financial and emotional support and have him be part of the Applicant’s side of the family. He further indicated that he understood and accepted that the proper way to do this was to make an application in the Family Court in due course and that he intended to do so if his permanent residence was confirmed. The Tribunal accepts that it is normally in the best interests of minor children to have ongoing contact with both their parents, where possible, and this has been recognised in Australian case law, such as Minister for Immigration, Citizenship and Multicultural Affairs v RGKY [2022] FCAFC 177. However, in this case, it notes that the Applicant’s son has not had contact with the Applicant since approximately March 2022 and has essentially been in the care of his biological mother (with support from her parents) since the Applicant was convicted and jailed in 2018. The Applicant’s evidence was that his son remains in her care, and she has not permitted contact for some period. It is unclear whether the Applicant will be able to obtain permission from her and/or the Family Court to have ongoing contact with his son in future.

Ratio Decidendi

Legal Principle Established

It was acknowledged that the Applicant had employment ties to Australia, being his employment with the food factory from 2013 to 2018 and from 2024 ongoing; however, this should not be given significant weight in favour of granting the Applicant a visa given that there was no evidence that the company’s ability to deliver any major project or important service in Australia, nor that the Applicant could not be replaced by another employee if necessary.[32][32] HB1, ibid. THE PRIMARY CONSIDERATIONS The Direction contains five primary considerations, which are:(1)protection of the Australian community from criminal or other serious conduct;(2)whether the conduct engaged in constituted family violence;(3)the strength, nature and duration of ties to Australia;(4)the best interests of minor children in Australia;(5)expectations of the Australian community.[33][33] The Direction, cl 8. The Tribunal has considered each one in turn, keeping in mind the principles in cl 5.2 of the Direction.The protection of the Australian community The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and 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.[34] [34] Ibid cl 8.1(1). The Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[35][35] Ibid. Decision-makers should consider the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[36][36] Ibid cl 8.1(2).Nature and seriousness of the conduct The Direction provides factors the Tribunal must consider when examining the nature and seriousness of the criminal offending or other conduct to date.[37]Criminal offending[37] Ibid cl 8.1.1(1)(a). The Applicant’s convictions are set out above at paragraph 9 and 10 above. Sentencing remarks, 27 April 2018 Her Honour Justice Pullen observed that the Applicant’s offending was serious and concerning, particularly because:·it involved a child, of which the Applicant was aware from a relatively early stage of his communications with the victim;·it was sexual in nature, although this was initially downplayed by the Applicant in his dealing with the police and with Dr Michael King;·it progressed to the stage of a meeting, and the Applicant continued to try to arrange another meeting despite being aware of the victim’s age and his previous sexual abuse; and·although the Applicant did not initiate conversation of a sexual nature, he engaged in it with the victim and sought to have another meeting with him after the initial one; and·he also sought and exchanged explicit photographs with the victim after knowing his age and prior sexual abuse.