XTVC and Minister for Immigration and Border Protection (Refugee)

[2016] AATA 278

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2016/1239
General Division  )

Re: XTVC
Applicant

And: Minister for Immigration and Border Protection
Respondent

DIRECTION

TRIBUNAL:              Barry Johnson, Conference Registrar

DATE:   4 May 2016

PLACE:                    Perth

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application, by substituting the applicants full name in paragraphs 22, 23, 25, 36, 37, 38, 39, 40 and 41 with “the applicant”.

........................[Sgd]...........................................
  Conference Registrar

XTVC and Minister for Immigration and Border Protection (Refugee) [2016] AATA  278 (2 May 2016)

Division	GENERAL DIVISION
File Number(s)	2016/1239
Re	XTVC
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

Decision

Tribunal	Ms A Goodier, Member
Date	2 May 2016
Place	Perth

The decision under review is affirmed.

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Ms A Goodier, Member

Catchwords

PROTECTION VISA – refusal to grant – applicant a citizen of Cuba – applicant convicted of sex offence in 2011 and sentenced to 4 years imprisonment – applicant does not pass character test – discretion to refuse visa – primary consideration of protection of Australian community outweighs other relevant considerations including international non-refoulment obligations – risk of future harm to Australian community by applicant unacceptable - preferable decision is that visa be refused – decision under review affirmed

LegislatioN

Migration Act 1958 (Cth) - ss499(1) - 501 - 501(1) – 501(2) - 501(6)(a) - 501(7)

Cases

LCNB and Minister for Immigration and Border Protection, Re [2015] AATA 463

Secondary Materials

Ministerial Direction no. 65 - Migration Act 1958- Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.

REASONS FOR DECISION

Ms A Goodier, Member

2 May 2016

Introduction

1. The applicant seeks review of a decision of a delegate of the Minister for Immigration and Border Protection (“Minister”) dated 3 February 2016 exercising discretion under s501(1) of the Migration Act 1958 (Cth) (“the Act”) to refuse to grant him a protection visa because the Minister reasonably suspects that he does not pass the character test in s 501(6)(a) of the Act and he does not satisfy the Minister that he passes the character test.

   FACTUAL BACKGROUND AND EVIDENCE

2. The applicant is a citizen of Cuba who first arrived in Australia on 7 July 2007 as the holder of a Partner (Provisional) (Class UF) visa and has not departed since. On 30 September 2009, the applicant was granted a Partner (Migrant) (Class BC) (“spouse visa”) visa onshore, which allowed him to remain in Australia indefinitely.

1. On 17 August 2011, the applicant was convicted in the Sydney District Court of New South Wales of one count of sexual intercourse without consent, and sentenced to 4 years’ imprisonment with a non-parole period of 2 years and 6 months. The offence was committed on 7 December 2009.

2. As a result of the applicant’s conviction, on 18 December 2013 the Minister exercised his discretion under s 501(2) of the Act and cancelled the applicant’s spouse visa.

1. On 9 April 2014, the applicant lodged an application for a protection visa with the Department of Immigration and Border Protection (“the Department”).

2. On 19 March 2015, the applicant was released on parole and has been held in immigration detention since. 

3. On 3 February 2016, a delegate of the Minister exercised the discretion under s 501(1) of the Act to refuse to grant the applicant a protection visa.

4. On 15 February 2016, the applicant sought review of the delegate’s decision in the Tribunal.

   ANALYSIS

   The character test

1. A person is taken not to pass the character test if he or she has a substantial criminal record. A person who has been sentenced to a term of 12 months imprisonment or more has a substantial criminal record as defined: ss 501(6)(a) & (7) of the Act.

2. The applicant was convicted in the Sydney District Court of New South Wales of one count of sexual intercourse without consent, and sentenced to 4 years’ imprisonment with a non-parole period of 2 years and 6 months.

3. As the applicant was sentenced to 4 years imprisonment with a non-parole period of 2 years and 6 months, the applicant has a “substantial criminal record” in accordance with subsection 501(7) of the Act. As a result and in accordance with subsection 501(6) of the Act, he does not pass the character test.

   Discretion

4. Having determined that the applicant does not pass the character test, the Tribunal must then consider whether to exercise the discretion under s 501(1) of the Act to refuse to grant a protection visa to the applicant.

5. On 22 December 2014 the Minister, in accordance with his powers under s 499(1) of the Act issued Direction No. 65 - Visa Refusal and Cancellation Under Section 501 (“Direction”). The purpose of the Direction is to guide decision-makers performing functions or exercising powers under s 501 of the Act, and decision-makers (defined to include the Tribunal) must comply with it.

6. Paragraph 6.2 of the Direction headed General Guidance, subparagraph (1) provides:

   The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

7. Paragraph 7 of the Direction sets out how the discretion is to be exercised. “Informed by” the principles in paragraph 6.3, the Tribunal must “take into account” the considerations in Part B in order to determine whether the applicant will forfeit the privilege of being granted a visa.

8. In paragraph 6.3 the Minister sets out the principles that provide the framework within which the task of exercising the discretion to revoke the cancellation of a visa is to be approached. The principles include the following:

   (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 vulnerable members of the community such as minors, 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 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.

   (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.

9. The Direction requires the decision-maker to take into account the primary and other considerations relevant to the individual case. Primary considerations should generally be given greater weight than the other considerations.

10. Paragraph 11(1) of the Direction provides:

    (1)  In deciding whether to refuse a non-citizen’s visa, the following are primary considerations:

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

    (b) The best interests of minor children in Australia;

    (c) Expectations of the Australian community.

11. Paragraph 12(1) of the Direction sets out other considerations to be taken into account where relevant. It provides:

    (1) In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

    (a) International non-refoulement obligations;

    (b) Impact on family members;

    (c ) Impact on victims;

    (d) Impact on Australian business interests.

    Primary Consideration

    (a) Protection of the Australian community

12. Paragraph 11.1(1) of the Direction provides that the Tribunal in considering the protection of the Australian community 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 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 engages in other serious conduct.

    Nature and seriousness of the conduct

13. Paragraph 11.1.1(1) of the Direction sets out a number of matters that the Tribunal must have regard to when considering the nature and seriousness of a person’s offending. Paragraph 11.1.1(1)(a) specifically states that violent and sexual crimes are viewed seriously.

14. The facts of the applicant's offence are set out in the sentencing remarks of Judge Cogswell SC in the following terms:

    ”1. The applicant is a very popular entertainer. He specialises in Latin music called Reggaeton. He went to a party on 6 December 2009. He had a lot to drink before and at the party. At 7 o’clock in the morning of 7 December 2009 he came into a room at the house where the party was and found a young woman who was asleep.

    2. What the applicant did then turned him from a popular, well regarded and respected musician into a criminal. He decided that he wanted to have sex with the woman who was asleep in the room. He penetrated her vagina from behind with his unprotected penis and had sex with her until he ejaculated. He did not ask her whether she agreed or not, he simply went ahead and did it.

    3. The woman immediately complained to others at the party and a few days later the applicant was arrested and charged with a crime commonly known as rape. Its technical legal expression is sexual intercourse without consent...”

15. In considering the seriousness of the offence his Honour continued as follows:

    “3        ...It is a crime against s 611 of the Crimes Act 1900. Parliament regards this crime as so serious that it has fixed a maximum sentence of fourteen years imprisonment for anyone who commits that crime. Not only that, Parliament has fixed to that crime a standard non-parole period of seven years imprisonment.

    6.        One of the important things which a judge has to do in sentencing an offender for a crime that Parliament has fixed a standard non-parole period to is to determine and find whether in the range of seriousness this particular crime lies. Is it one of the worst kinds of rapes, or is it in the middle of the range of rape crimes, or is it in the lower part of the range for rape crimes? In this case Mr Ken Gilson of counsel - who appears as Crown Prosecutor in the trial and in the sentence proceedings - correctly, in my opinion, submitted that the crime committed by the applicant fell below the middle of the range of objective seriousness which is the expression used by Parliament for crimes carrying a standard non-parole period.

    7.        Ms Dymphna Hawkins of counsel - who appears at the trial and in the sentence proceedings for the applicant - argued that this rape, too, fell below the middle of the range of objective seriousness but she said it fell at the very lowest in that range. She said that the offence when it was committed was of short duration and was spontaneous. Both of those assertions must be right. She also correctly pointed out that there was no additional violence over and above the very serious violence which is, by definition, part of a rape.

    8.        On the other hand I must take into account what I regard as three serious features of this crime. First is that the applicant gave his victim absolutely no opportunity to prepare herself for this crime. The first she knew about the crime was when she felt his presence behind her and his penis inside her vagina. The second aspect is that the intercourse was unprotected; he did not wear any form of condom. The third thing which perhaps is the most serious is that he completed the intercourse by ejaculating into her vagina. The last two features obviously make the crime more serious because it must raise the possibility of sexually transmitted disease through unprotected sex or a pregnancy.

    9.        In my opinion this crime does fall below the middle range of objective seriousness for rapes but it falls just below the middle range. To be more precise it falls within the upper half of the lowest range of objective seriousness.”

16. His Honour also referred to the impact of the offence on the victim:

    "13.The victim of the crime was herself only about nineteen when this offence occurred. So far as she was concerned, she was at a party which was being hosted by a work friend of hers. As she pointed out in her victim impact statement, the crime is “not something you want to have to go through as a teenage female”. She had a partner of some four years and it was understandably particularly difficulty telling her partner about this because she was worried about his reaction. She was worried about telling her family as well. She found it hard to deal with. She never thought this would happen to her.

    14.She went to counselling for up to eight weeks to help with her feelings and the obvious anxiety which the offence brought about but, as she, said the counselling “seemed to just bring up the events in my head again.”

    16.As a result of the incident she finds that she is “now a more scared and anxious persona and I have a lot of trouble trusting people.” She becomes very closed in public and tries not to interact with people or make eye contact. She is reluctant to go out on her own.

    17.She was not able to go to work for several weeks and that had a financial impact because her partner was on an apprentice’s wage. The job she had when this occurred involved her travelling a lot. She discontinued that employment because the travel involved public transport at early hours and she felt a lack of trust for people. It affected her sleep. She commenced new employment and became so stressed about the second court hearing that she had to be corrected about her performance. Luckily she did not lose her job. It affected her exams which she was undertaking. She had to repeat a twelve week course. This drew the attention of her employer.

    18.It affected her appetite and she had to have sleeping tablets. Her social life was affected. She did not maintain contact with her friends. It affected her intimate life with her partner, as well as creating a lot of stress and strain between them.

    19.The victim made reference at the commencement to “scratches on my lower back.” I refer to that because there is an issue as to whether certain scratches which were on her back were caused in the incident or not. I cannot be satisfied beyond reasonable doubt that they were so caused because, as Ms Hawkins pointed out, the victim was carried once or twice, during the course of the evening. Nevertheless the other observation which the victim made namely that “my intimate parts (vagina) was extremely sore for several days after the incident”, I do obviously accept.”

17. In considering the appropriate sentence to be handed down his Honour stated:

    “40.There is, I accept, some prospect of rehabilitation. This was a one off opportunistic offence and the applicant has not record of such previous offending. His prospects of rehabilitation are guarded, given the complexity of the treatment required and his significant depression and anxiety. Naturally he cannot be accorded any benefit of contrition or remorse because his clear position is that he regards himself as not guilty of these offences.

    41.As I say, I have made the finding as to where this offence lies in the range of objective seriousness. Taking into account that finding and the matters personal to the applicant, I regard an appropriate overall sentence as one of four years imprisonment. Because it is his first time in custody and he will need some extended period in the community for his treatment to be undertaken I would regard there being special circumstances for departing from the normal relationship between head sentence and the non parole period. Normally it is some seventy-five per cent so that the applicant could expect to have a non-parole period of three years in this case. However I propose to reduce his non-parole period to two and a half years in this case.

    42.I will backdate the sentence by some seven days to clearly take into account the period which he has spent in custody. The sentence will therefore commence on 10 August 2011.”

18. The applicant’s Australian National Police Certificate dated 18 September 2014  indicates on 20 September 2007 he was convicted of three less serious offences for which he received penalties of fines and a driving disqualification for three years.  

19. The Tribunal notes that the applicant was involved in several incidents while in detention.  While no criminal charges were laid, disciplinary action was taken against him

20. The applicant’s pre-release reports dated 12 November 2014 and 25 February 2015 indicates that the applicant incurred various institutional misconduct charges during his incarceration.  In April 2014 he received a reprimand and caution for punching another inmate after he allegedly made racist remarks about the applicant.  In February 2015 he was involved in an altercation with a correctional officer for which he was locked in his cell and charged with missing muster and intimidating behaviour.

21. The applicant referred to the incident with the inmate but stated that was not a big deal as it is difficult to not have incidents when surrounded by criminals. The applicant stated in relation to the incident in February 2015 that he was not a saint, it was not serious, just an argument and he did not hurt or kill anyone. 

    Consideration of the “nature and seriousness of the conduct”

22. The Court imposed a term of imprisonment of four years with a non-parole period of two and a half years.  While the Court did not impose the maximum penalty, it regarded his crime as so serious it warranted a prison sentence. The sentencing judge discussed where the offence sat in the range of objective seriousness, finding that it fell “within the upper half of the lowest range of objective seriousness”.

23. The applicant’s criminal history includes convictions for three less serious offences in 2007, for which he received fines and a 6 month driving disqualification. These occurred shortly after his arrival in Australia.

1. In contrast to the applicant’s claims at hearing, his criminal history indicates that he has broken the law while in Australia and while in detention has been involved in incidents involving violence and intimidation.  While no criminal charges were laid against the applicant arising from these latter incidents, disciplinary action was taken.

2. The offence for which the applicant has been convicted is clearly sexual in nature and a term of imprisonment was imposed.  The Tribunal considers the nature and seriousness of the applicant’s conduct to date, clearly serious.     

   Risk to the Australian community should further offences be committed

3. Paragraph 11.1(2) of the Direction sets out principles and factors to which the Tribunal should and must have regard in assessing whether the person represents an unacceptable risk of harm to members of the Australian community. These include that the Tribunal should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants, reflecting that there should be no expectation that such people should be allowed to come in to, or remain permanently in, Australia. The Tribunal should also 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.

4. Paragraph 11.1.2(3) of the Direction states that when considering whether the person represents an unacceptable risk of harm, the Tribunal should 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 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.

   Nature of harm & likelihood of further criminal conduct

5. The sentencing judge referred to the applicant’s background as follows:

   “21. It is important for a judge to make reference to personal features of an offender before sentencing the person so that they can be taken into account. The applicant is twenty-nine. He is from Cuba and has been in Australia since 2007. He is applying for citizenship. He was married to an Australian woman but they have separated. He was brought up in Havana, one of nearly thirty brothers and sisters. He had a good upbringing. One feature of his early childhood however is that his first sexual encounter was at the age of twelve and as the helpful pre-sentence report from the Probation and Parole officer says, “he enjoyed relationships of various lengths of time from then onwards.”

   22. He has since separated from his Australian wife. He is a trained classical musician and a very accomplished performer in Latin music with a particular focus, as I have said, on Reggaeton. Indeed I have seen as one of the exhibits a video clip of one of his performances. His lifestyle in Australia as a performer was characterised by casual relationships in an atmosphere of drugs and alcohol. That is a remark by the Probation and Parole officer, although it appears that the applicant’s drug use may have occurred later.”

6. Regarding the applicant’s history of substance abuse, his Honour noted:

   “23.The alcohol intake became a serious problem in 2009 when his father died in Cuba. He lost another relative around the same time. This affected him very seriously. He started to drink a lot more. He was drinking up to two bottles of rum a day. It obviously became an addiction. To his credit he took himself off to a detoxification unit at St Vincent’s Hospital for three days and then attended a psychologist for four sessions.

   26.His legal advisers arranged for the applicant to attend a psychologist, Dr John Jacmon. Dr Jacmon saw the applicant on 5 July this year. Despite Dr Jacmon saying that he had “gathered considerable information” on the applicant’s “state of mind currently and at the time of the incident”, Dr Jacmon concluded that there was no disorders identified prior to the incident. This was despite the alcohol problem which I have described resulting from a combination of the performing lifestyle and his father’s death, his attendance at a detoxification unit and seeing another psychologist. In addition, Dr Jacmon diagnosed, correctly I think, that the applicant’s daily “functioning is being impaired by depression, anxiety and substance abuse (alcohol and drugs) at clinically significant levels.” The psychologist thought that his depression and anxiety appear to have developed as aftermaths of the crime - that is my expression - which he had committed. He diagnosed him with a major depressive disorder and generalised anxiety disorder.

   27.The psychologist whom the applicant saw in late 2009 was a Mr Alfredo Goldbach. In a short report Mr Goldbach confirmed that he offered him psychotherapeutic support between September and November 2009. He had presented with “severe depression and extremely severe anxiety.” He had “low mood, relationship problems and strong feelings of isolation”. The psychologist assessed the applicant as having been “deeply affected by the loss of two family members and a friend during the previous three years and by the difficulties in the process of settling in Australia.

   33. The applicant spent some six days in custody after he was arrested. I accept that at the time that this offence occurred the applicant was suffering from depression and anxiety and had also been drinking. Those observations point to the context and explanation of the circumstances in which the crime occurred. They do not excuse the crime. I accept Mr Gilson’s submission that there is no demonstrated causal relationship between his condition and the crime.”

7. His Honour noted that the applicant at the time of conviction continued to maintain his innocence of the offence:

   “24. It is important to note that the applicant maintains his innocence of this charge.”

8. In terms of rehabilitation, his Honour stated as follows:

   “40. There is, I accept, some prospect of rehabilitation. This was a one off opportunistic offence and the applicant has no record of such previous offending. His prospects of rehabilitation are guarded, given the complexity of the treatment required and his significant depression and anxiety. Naturally he cannot be accorded any benefit of contrition or remorse because his clear position is that he regards himself as not guilty of these offences.”

9. The applicant completed the CUBIT Sex Offender Program between 6 December 2013 and 23 February 2015, with a period of suspension from April to July 2014. His CUBIT treatment report dated 23 February 2015, completed by a psychologist, summarises his general participation as follows:

   “13. The applicant’s engagement in treatment following his return did not initially appear to improve in comparison to the time prior to suspension. He experienced considerable difficulties accepting responsibility for the completion of his treatment tasks; appeared to consider any work other than that focused on core components of treatment as irrelevant; his feedback to other participants and engagement in group discussions was superficial; and his only manner of negotiating difficulties was via the use of three problematic interpersonal approaches (ingratiating “Mr Smooth”, hostile “Mr Angry”, and adopting a victim stance “Mr Poor Me”). Nevertheless, once his offence pathway work was processed in the group, in addition to being externally motivated to complete the program, the applicant seemed to recognise a need for his to change aspects of his behaviour and attitudes in order to improve the quality of his relationships and ability to lead a fulfilling life. Consequently, he appeared to engage in the treatment process to a greater extend, and spontaneously contributed to group discussion with relevant content suggesting that he was not only attentive but that he understood the material. Nevertheless, the applicant’s institutional misconduct following completion of treatment while he was still housed in CUBIT Wing, suggests that the intellectual understanding of the concepts he appears to have gained as a result of his program participation does not consistently translate to appropriate behaviour.”

10. The CUBIT treatment report recorded the following conclusions regarding risk and recommendations regarding future treatment:

    “60. The applicant participated in approximately 10 months of treatment in the CUBIT program, with a period of suspension between April and July 2014. He completed treatment on 2 February 2015. Taking into account both static and dynamic risk factors, the risk rating of Moderate-High on the STATIC-99R is likely to accurately reflect the applicant’s current risk. Overall, the applicant appeared to experience significant difficulties during treatment. These appeared to stem from his lack of insight into the factors relevant to his offending, concrete understanding of consent, as well as some shame regarding the concept of being a “rapist”. Once his offence pathway was processed, there appeared to be some positive shift in terms of the applicant’s engagement in treatment. He was able to verbalise a sound understanding of his difficulties relevant to his offending and demonstrate some improvements in his behaviour. Nevertheless, as demonstrated by his behaviour following completion of treatment, the applicant is yet to demonstrate a positive behavioural change on a consistent basis across circumstances. Consequently, deficits with general and sexual self­regulation, along with intimacy deficits are the most relevant dynamic factors that will warrant further attention following the applicant’s release.

    61. It is noted that the most recent information suggests that the applicant will be removed from Australia following release. Should this occur, he should be encouraged to seek professional supports where he will reside, including a psychologist or a counsellor that can assist him to maintain abstinence and continue addressing the outstanding dynamic risk areas.”

11. The CUBIT treatment report also recorded that the applicant completed a substance abuse program (the Getting SMART program) on 28 December 2011.

12. The applicant’s pre-release report dated 12 November 2014 reports the applicant to have no insight into, and to take no responsibility for, his sexual offending behaviour. Further, while the CUBIT treatment report indicated that the applicant may have made some progress in this regard, the CUBIT treatment report noted the ‘fragility’ of this progress as demonstrated by his post-rehabilitation conduct, and concluded that a moderate-high risk rating accurately reflected the applicant’s level of risk of reoffending.

13. In his statutory declaration dated 22 April 2015 the applicant states that he has completed a sex-offender’s course and is reformed. He also expresses remorse for his offending, and states that this is his first criminal offence and he ‘will never do it again’. Character references from friends of the applicant acknowledge his offending and attest to his good character.

14. However, in contrast, the applicant in an email dated 21 April 2016[1] stated he was convicted of an offence and sent to prison for a crime he is innocent of and while in prison made to participate in sexual offenders course and received a poor behaviour report from facilitators because he knew he was innocent.  He indicated that he likes to sing and bring happiness to people and is not the type of person to break the law.  He also indicated that he was not the person portrayed by the respondent at hearing. 

    [1] Exhibit 2.

15. After it was put to him by the respondent in relation to his conviction that it appears he does not think he did anything wrong, the applicant told the Tribunal that he “100% did nothing wrong”.

16. The applicant told the Tribunal that he was on bail for two years and did not re-offend in that time.  If he was at risk to commit other crimes he would have done something during that time. 

17. The applicant told the Tribunal that his behaviour in prison and immigration detention was good. He stated he was an artist, good person and not the person portrayed by the respondent.  He was unlucky not to be successful in the case brought against him.  He likes to sing and bring happiness to people.  He is not the type of person to break the law.  He told the Tribunal that if it had any doubts as to his behaviour in the four years he was in jail and immigration detention to speak to the officers as he had excellent conduct.    

18. However, the applicant’s pre-release reports indicate that the applicant incurred various institutional misconduct charges during his incarceration. 

19. The applicant has also provided character references from friends acknowledging his offending and attesting to his good character.  The references refer to his talent and the demand for his talent in Australia referring to his past work as well as future plans for work in Australia. 

    Consideration of the risk to the Australian community

20. The applicant has remained in either prison or immigration detention since he has undertaken rehabilitation programs.  

21. The applicant intends to stay in Australia indefinitely, and any risk of re-offending will continue for this period of time.

22. The nature of the harm to the Australian community should the applicant engage in further offences of the nature of that in which he has engaged in the past would be serious.  A repetition of the offence would certainly involve harm of a physical and psychological nature to the victim. 

23. The Tribunal has given serious consideration to the applicant’s claims that he is not a risk to the community and will not offend again.  However, after considering his evidence the Tribunal is not satisfied that he fully accepts responsibility for his past conduct.  He considers that he was innocent of the charges brought against him and did nothing wrong.

24. The sentencing judge refers to there being some prospect of rehabilitation for the applicant, that this was a one off opportunistic offence and he has no record of such previous offending.  However he further commented that such prospects are guarded given the complexity of the treatment required and the applicant’s significant depression and anxiety. He also referred to the applicant’s clear belief that he has done nothing wrong.

25. While the applicant has completed CUBIT treatment and a substance abuse program (the Getting SMART program), the CUBIT report indicates that he appeared to experience significant difficulties during treatment stemming from his lack of insight into the factors relevant to his offending, concrete understanding of consent, as well as some shame regarding the concept of being a “rapist”. While it appears there was some positive shift in terms of his engagement in treatment, the report indicates he was yet to demonstrate a positive behavioural change on a consistent basis across circumstances.

26. The CUBIT Report concluded that a moderate-high risk rating accurately reflected the applicant’s level of risk of reoffending. The Tribunal considers a moderate risk of the applicant repeating a similar offence to that of which he has been convicted is a significant risk to the community.

27. One of the recommendations of the CUBIT Report was that the applicant remains abstinent from alcohol and illicit substances on his release.  The Tribunal notes from the CUBIT Report as well as the sentencing and various pre-release reports, the applicant was under the influence of alcohol and drugs at the time of the offence and indicates that it was part of the “culture” in the entertainment industry to consume large amounts of alcohol while employed.  The reports indicate that the applicant has completed an alcohol and illicit drug program and indicated his intention to remain alcohol and drug free on his release into the community.

28. The Tribunal acknowledges the applicant’s awareness and intention to remain alcohol and drug free on his release.  However, the Tribunal is concerned that it appears that his intention is, as well as that of his referees, for him to return to work in the entertainment industry where alcohol and illicit substance use appears to be the norm.    

29. It is of concern to the Tribunal that the applicant has minimised the nature of his altercations with others while in detention, explaining his assault of another inmate as something to be expected when surrounded by criminals and his threat to a corrections officer as just an argument and nothing serious. 

30. The Tribunal accepts that the applicant has the support of friends should he be released into the community.  However, the Tribunal is of the view that their support does not assist a finding that the applicant would be unlikely to reoffend if released into the community. 

31. In considering the lack of remorse the applicant has shown for his actions,  his belief that he has committed no offence, together with the comments and recommendations in the CUBIT Report as well as the pre-release reports, the Tribunal concludes that there is a risk of harm to the Australian community should he be released. 

32. Given the nature of the applicant’s offending and the nature of the harm to individuals should the applicant engage in further criminal conduct of this nature, the risk to the Australian community should the applicant be released weighs heavily against a decision that his visa be granted. 

    PRIMARY CONSIDERATION

    (b) Best interests of minor children in Australia

33. There is nothing to indicate that there are any children under 18 in Australia whose best interests would be affected by refusal of the applicant’s application for a protection visa.

    PRIMARY CONSIDERATION

    (c) Expectations of the Australian Community

34. The third primary consideration listed in Paragraph 11 of the Direction is the expectations of the Australian Community, and paragraph 11.3(1) provides that:

    “(1) 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. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.”

35. Pursuant to the principles in paragraph 6.3 of the Direction, it is also the expectation of the Australian community that the Government can and should refuse entry to non-citizens who commit serious crimes in Australia, that non-citizens who commit crimes, including of a sexual nature, should generally expect to be denied the privilege of coming to Australia, and that Australia has a low tolerance of any criminal conduct from people who have been participating in the Australian community for only a short period of time.

36. The applicant resided in Australia for only 2 years and some 5 months before committing this offence which was of a sexual nature and considered to be a serious offence. His earlier offences of a different nature were committed shortly after his arrival in Australia. He had only been participating in the community for a short period before committing his offences and the Australian community would have a low tolerance of his criminal conduct.

1. Clearly, the applicant has not met the expectation that as a non-citizen he will obey Australian laws while in Australia.  The expectation of the Australian community would be that a visa application should be refused where the applicant for such a visa has been convicted of a serious offence in Australia. 

2. The Minister has made it clear that the right of a non-citizen to remain in Australia is a privilege conferred in the expectation that he will be law-abiding. 

   Other relevant considerations

3. Section 12 of Direction No. 65 provides examples of other considerations that are to be taken into account where relevant. These include, but are not limited to:

   (a) International non-refoulement obligations;

   (b) Impact on family members;

   (c) Impact on victims;

   (d) Impact on Australian business interests.

   International non-refoulment obligations

4. Paragraph 12.1 of the Direction sets out the following relevant principles and

   factors regarding non-refoulment obligations in the context of deciding whether to not grant a visa;

   (1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision­ makers should follow the tests enunciated in the Act.

   (2)The existence of a non-refoulement obligation does not preclude refusal of a non-citizen’s visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists.

   (3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s501 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa).

   (4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non­citizen for the purposes of determining whether their visa application should be refused.

   (5)If, however, the visa application being considered for refusal is a Protection visa application, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).

   (6)In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa application were refused, they would face the prospect of indefinite immigration detention.

5. Pursuant to paragraph 12.1(1) of the Direction, the Tribunal is required to take into account Australia’s international non-refoulement obligations, and should have regard to the tests enunciated in the Act which reflect Australia’s interpretation of those obligations: LCNB and Minister for Immigration and Border Protection [2015] AATA 463 at [104]-[105] per DP Frost.

6. The applicant has submitted that he is seeking political asylum in Australia as the Cuban Government has declared him to be a counter-revolutionary. He participated in a documentary about Cuba and correspondence was received indicating that the airing of the documentary was delayed on two occasions because of delays in his departure from Cuba and concerns for his safety if it was aired while he remained in that country.  The applicant indicated he spoke out about political issues and life in Cuba, including speaking out about Fidel Castro and other political figures in Cuba.  He knows if he returns to Cuba his life will be in danger.  He will either be killed or be placed in prison all of his life because of his participation in the documentary.  Other letters of support provided also referred to the applicant’s fear of harm if returned to Cuba. 

7. On 6 May 2013 a delegate of the Minister carried out an International Treaties Obligations Assessment (“ITOA”) in respect of the applicant.[2] The delegate found that:

   57.1 as a result of his involvement in the 2007 documentary the applicant has a genuine fear of suffering harm in Cuba for reason of his imputed anti-government opinion;

   57.2 there is a high degree of likelihood that the applicant will suffer arbitrary punishment in Cuba, and the applicant may have his Cuban citizenship revoked or be denied an entry permit to Cuba, for having participated in the 2007 documentary;

   57.3 the applicant meets the Refugees Convention definition of a refugee, and  there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Cuba, there is a real risk he will suffer significant harm; and

   57.4 Australia has non-refoulement obligations to the applicant under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the International Convention on Civil and Political Rights (ICCPR).

   [2] A copy of the ITOA is document G4 of the G documents at pages 212-222 (Exhibit 1).

8. In the statement of reasons for cancellation of the applicant’s spouse visa dated

   18 December 2013, the Minister noted that there was no evidence that the applicant has the right to enter and reside in any safe third country. The Minister also noted that cancelling the applicant’s spouse visa was not inconsistent with Australia’s international obligations as Australia will not necessarily remove a person, as a consequence of cancelling their visa, to the country in respect of which the non­-refoulement obligation exists.

9. In his statutory declaration of protection claims made on 1 April 2014 and lodged with his application for a protection visa, the applicant refers to:

   59.1 his involvement in a 2007 documentary made by SBS that was taken to be  critical of the Cuban government;

   59.2 how his family had suffered during the dictatorship of Fidel Castro, including how his uncles went missing or were beaten or tortured; and

   59.3 his belief that it was not safe for him to return to Cuba because he publically spoke about problems in Cuba, and his fear that he will be arrested, tortured or cruelly harmed if he returns to Cuba.

10. In a statutory declaration dated 10 November 2014 provided by Mr David O’Shea, a reporter/producer who produced the 2007 documentary, referred to concerns for the applicant’s safety as a result of the 2007 documentary, and critical comments from the Cuban consul general in Sydney.

11. In submissions dated 13 October 2014 and 28 April 2015, the applicant’s then representative referred to country information regarding the risk of persecution in Cuba on the grounds of political dissent.

12. In his statutory declaration made on 22 April 2015 the applicant states that ‘rumours that I may be in immigration detention for years before I get a decision, is putting a lot of pressure on me’ and that his ‘sleep and appetite are affected and I have panic attacks and feel desperate at times’.  He told the Tribunal that being in detention is hard for him and he is unable to return to Cuba and does not want to remain in detention.

    Consideration of International non-refoulment obligations

13. The Tribunal has carefully weighed Australia’s non-refoulement obligations and the prospect of prolonged detention against the seriousness of the applicant’s offending.

14. The applicant’s 2009 offence involved a sexual assault against a young woman who was asleep at the time. While the sentencing judge accepted that the offence was ‘spontaneous’, he also referred to ‘the very serious violence which is, by definition, part of a rape’, and recorded the victim’s observation that she was ‘extremely sore for several days after the incident’. Further, while the applicant received a custodial sentence of four years, the offence was punishable by imprisonment for a maximum term of 14 years.

15. The Tribunal considers the applicant’s 2009 offence involved violence against a person, which was punishable by a maximum term of 14 years and therefore a serious offence.

16. The applicant has been assessed as a moderate to high risk of reoffending. He has expressed no remorse for his actions, believing he is innocent.  The Tribunal has regard to comments in the CUBIT Report as well as the pre-release reports, that he has little insight into his behaviour and takes no responsibility for his sexual offending behaviour.  Having regard to the nature of the applicant’s offence, the nature of the harm to individuals should the applicant re-offend and the risk of the applicant re-offending, the Tribunal considers that the applicant presents an unacceptable risk to the Australian community should he be released.

17. After weighing all the factors, the Tribunal considers that the seriousness of the applicant’s offending outweighs countervailing factors, including Australia’s non-refoulement obligations and the prospect of prolonged detention

    Impact on family members

18. The applicant initially told the Tribunal that he had a girlfriend.  However, his later evidence was that they were no longer together as he was transferred to Christmas Island and their relationship faltered. He indicated to the Tribunal that he had a close circle of friends who had supported him and he regarded them as his family.  His letters of support indicate that his detention has caused emotional trauma to the Latin community and all his friends and family involved.

19. The Tribunal acknowledges that the applicant’s friends and family have experienced emotional trauma at the incarceration and continued detention of the applicant.

20. However, while the applicant’s friends and family may experience disappointment and sadness at the refusal of the applicant’s visa, the Tribunal is not satisfied that this will cause them or his ex-girlfriend any hardship.  

    Impact on Australian business interests

21. The applicant has provided references as to his musical ability and various projects planned for the future upon the applicant’s release from detention.

22. The Tribunal accepts that the applicant was a successful musician and entertainer prior to his offending and incarceration in 2011. However there is no evidence that any Australian business interests would be affected if he is unable to continue his work in the industry. 

    Impact on victims

23. The applicant’s 2009 offence involved a sexual assault against a young woman who was asleep at the time. While the sentencing judge accepted that the offence was ‘spontaneous’, it also involved serious violence against a victim who was asleep and therefore unable to defend herself.

24. Whilst there is no direct evidence from the applicant’s victim before the Tribunal, the sentencing remarks comment on the impact of the offence on the victim including her age at the time of the offence, the consequences of the offending on her at the time of the offence as well as the impact the offence had on her wellbeing into her future.   

    Taking the relevant considerations into account

25. Taking into account all of the considerations and guided by the principles set out in the Direction, the Tribunal concludes that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh the other considerations.

26. The Tribunal considers the risk of the applicant re-offending and the serious consequences which could arise in those circumstances outweigh all other considerations in favour of his protection visa being granted. 

27. Accordingly, the protection visa application should therefore be refused.

    Conclusion

28. For the above reasons, the Tribunal affirms the decision under review.

I certify that the preceding 95 (ninety -five) paragraphs are a true copy of the reasons for the decision herein of Ms A Goodier, Member

........[Sgd]................................................................

Administrative Assistant

Dated 2 May 2016

Date(s) of hearing	26 April 2016
Applicant	Self-represented (by video-link)
Counsel for the Respondent	Mr P Macliver
Solicitors for the Respondent	Australian Government Solicitor