XYDJ and Minister for Home Affairs (Migration)

XYDJ and Minister for Home Affairs (Migration) [2018] AATA 3790 (6 September 2018)
Division:GENERAL DIVISION
File Number(s): 2018/3295
Re: XYDJ
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Member K Parker
Date:6 September 2018
Place:Melbourne

The Tribunal sets aside the decision made by a delegate of the Minister for Home Affairs on 13 June 2018 under s 501(1) of the Migration Act 1958 (Cth) (Act) to refuse to grant XYDJ a Bridging E (Class WE) visa on character grounds, and in substitution decides that this matter be remitted for reconsideration with a direction by this Tribunal that XYDJ passes the character test under s 501(6) of the Act.
............[sgd]............................................................
Member K Parker
MIGRATION – applicant originally granted student visa and travelled from Hong Kong to Australia to undertake student exchange program – allegations made by fellow exchange student – Police laid charges against applicant for two counts of rape – no evidence of prior criminal record – criminal proceedings filed against applicant – applicant entered plea of not guilty and released on bail – Department obtained consent from applicant to remove him from Australia following cancellation of student visa – bail revoked and applicant taken into remand – no committal proceeding – criminal proceeding listed for trial in September 2018 – whether risk that the applicant would engage in criminal conduct in Australia – no witness statements filed by either party in this application – no witnesses called to give evidence by either party at the hearing due to pending criminal trial – Minister sought to rely on documentary evidence arising from Police investigation and file held by the Department of Public Prosecution – credibility of allegations – inconsistencies in allegations made by complainant – consideration of forensic biology results and expert report by examining doctor – insufficient evidence to find there is a risk that applicant would engage in criminal conduct if allowed to remain in Australia – applicant passes character test – discretion to refuse visa under s 501(1) of the Migration Act 1958 (Cth) not enlivened – decision set aside and matter remitted for reconsideration with direction that applicant passes character test
Legislation
Migration Act 1958 (Cth) – ss 499, 500, 501, 501G
Criminal Code 1924 (Tas) – s 185
Cases
Fu (Migration) [2018] AATA 732
Gong v Minister for Immigration and Anor [2016] FCCA 561
Secondary Materials
Direction No. 65 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014
Migration Amendment (Character and General Visa Cancellation) Bill 2014 – Explanatory Memorandum
REASONS FOR DECISION
Member K Parker
6 September 2018
BACKGROUND

XYDJ is a 20-year-old university student.[1] He is a national of the Hong Kong Special Administrative Region of the People’s Republic of China.
[1] Orders were made by this Tribunal to apply a pseudonym to the Applicant’s name and to otherwise change various references to names and particulars in these Reasons for Decision, to ensure to the extent possible that the person who made the allegations of rape against XYDJ is not able to identified.
On 19 June 2017, XYDJ was granted a Student (subclass 500) visa. It was a temporary visa with an expiry date of 31 January 2018.[2] On 6 July 2017, XYDJ arrived in Australia on this visa for the purpose of undertaking a short-term student exchange program at a university in Tasmania (University).
[2] On 27 June 2018, the Minister lodged a set of documents required to be given to XYDJ under s 501G(2) at the time of notification of the decision to refuse to grant his application for a bridging visa (referred to in these Reasons for Decision as G-Documents) - refer G-Documents page 101.
Before departing Hong Kong for Australia, XYDJ met (once) Ms Female Friend, a fellow Hong Kong university student due to participate in the student exchange program to Australia.
Ms Female Friend established a “group” on a social media platform consisting of XYDJ and herself, and two other fellow Hong Kong university students due to participate in the student exchange program in Australia, Ms Complainant and Mr Male Friend. Ms Complainant and Mr Male Friend were unknown to XYDJ before he arrived in Australia.
XYDJ first met Ms Complainant and Mr Male Friend shortly after arriving in Hobart. XYDJ, Ms Female Friend, Ms Complainant and Mr Male Friend became friends. They ate meals, played card games and on two occasions, enjoyed a drink together.
On 22 July 2017 (three weeks after XYDJ arrived in Australia), XYDJ spent the day shopping with Ms Female Friend, Ms Complainant and Mr Male Friend. That evening they had dinner together in Ms Complainant’s room at the university’s accommodation facility. They also shared some alcoholic drinks and played card games. The evidence differed as to what happened next as set out in further detail below in paragraphs [36] to [97] inclusive. At about 4am on 23 July 2017, Ms Complainant called Ms Female Friend, who was staying at the same University accommodation facility, into her room, and told her that she had been raped by XYDJ.
Later that day, Ms Complainant called XYDJ to discuss the incident. After that call, Ms Female Friend made an informal complaint to Mr RSO, residential support officer at the University. On behalf of Ms Complainant, Mr RSO contacted the Police at about 10pm on 23 July 2017 to report the incident (informally at that stage).[3] The Police attended the accommodation facility to speak with Ms Complainant. While they were waiting for the Police to arrive, at Mr RSO’s suggestion, Ms Complainant noted down on a piece of paper the events that she alleged had occurred that morning.[4]
[3] Refer Exhibit “R1”, page 128.
[4] Ms Complainant’s handwritten note was lodged with the Tribunal – refer Exhibit “R1”, first page (page 245) and second page (page 244).
In the early hours of the morning on 24 July 2017, Ms Complainant attended a nearby Hospital (escorted by the Police) where she underwent a medical examination (referred to as the sexual assault investigation kit). The examining doctor issued a report stating that there were no physical signs of sexual assault. The forensic biology report stated that XYDJ’s semen was identified as being present on Ms Complainant’s underpants and on her vulva. Semen was not found in Ms Complainant’s “low vaginal” or “high vaginal” areas. There was no record in the report that a test had been performed to check for semen present in Ms Complainant’s mouth. At that stage, Ms Complainant had alleged vaginal penetration against XYDJ, but not oral penetration (this was alleged by Ms Complainant two weeks later).
In the days to follow, Ms Complainant continued to communicate and socialise with XYDJ, Ms Female Friend and Mr Male Friend. Telephone discussions took place between Ms Complainant and XYDJ, including the one referred to in further detail in paragraphs [105] and [106] of these Reasons for Decision. Ms Complainant recorded those telephone conversations without notifying XYDJ that she was doing so. Ms Complainant gave those telephone recordings to the Police. Transcripts of those recordings were lodged with the Tribunal as annexures to an affidavit of an interpreter and translator dated 23 March 2018.[5]
[5] Refer Exhibit “R1”, pages 287-306.
On 4 August 2017, Ms Complainant filed a formal complaint with the Police and was interviewed (through a Cantonese interpreter).[6] Ms Complainant alleged digital, oral and vaginal rape by XYDJ.
[6] Refer transcript of Ms Complainant’s Police interview on 4 August 2017 – G-Documents, page 31.
The Police took a Statutory Declaration from Ms Female Friend on 8 August 2017.[7] The Police took a Statutory Declaration from Mr Male Friend on 9 August 2017.[8]
[7] Refer statutory declaration by Ms Female Friend dated 8 August 2017 – G-Documents, page 70.
[8] Refer statutory declaration by Mr Male Friend dated 9 August 2017 – G-Documents, page 74.
XYDJ agreed to be interviewed by the Police. The interview took place on 10 August 2017 (through a Cantonese interpreter).[9] XYDJ did not admit to the allegations. He said he was intoxicated and did not remember engaging in the conduct as alleged by Ms Complainant. He said he remembered trying to leave Ms Complainant’s room but she would not let him leave and insisted that he stay. He said he remembered leaving the room when presented with an opportunity to do so when Ms Complainant started to vomit into a bin.
[9] Refer transcript of XYDJ’s Police interview on 10 August 2017 – Exhibit “R1”, page 246.
XYDJ was not held in custody during this period. He voluntarily provided a DNA sample to the Police on 14 September 2017.[10] During this period, XYDJ continued to live and study at the University.
[10] Refer Exhibit “R1”, page 141.
On 10 November 2017, XYDJ was arrested and charged. The Indictment dated 13 June 2018 lists two counts of rape, as follows:[11]
(a)First count: Rape – Contrary to section 185(1) of the Criminal Code 1924, Particulars: [XYDJ] at [suburb] in Tasmania on the 23^rd day of July 2017 had unlawful sexual intercourse (vaginal) with [Ms Complainant], without her consent; and
(b)Second count: Rape – Contrary to section 185(1) of the Criminal Code 1924, Particulars: [XYDJ] at [suburb] in Tasmania on the 23^rd day of July 2017 had unlawful sexual intercourse (oral) with [Ms Complainant], without her consent.
[11] Ibid at page 311.
XYDJ was released on bail subject to certain conditions including that he not leave Tasmania or contact Ms Complainant. Counsel (representing XYDJ in the criminal proceeding), was called upon at the hearing before this Tribunal to provide a brief status report about the progress of the criminal proceeding. Counsel confirmed that the matter had been listed for trial before the Supreme Court of Tasmania on 25 September 2018, pending availability of witnesses. Counsel confirmed that XYDJ had entered a plea of not guilty. Counsel also explained that no committal hearing had occurred and that it was rare for a committal proceeding to take place as part of the process in Tasmania, i.e. once a criminal proceeding was issued, the matter was set down for trial.
On 29 January 2018, a delegate of the Minister cancelled XYDJ’s student visa causing him to become an unlawful non-citizen under the Act.[12] XYDJ sought review of the cancellation decision by the Migration and Refugee Division of the Administrative Appeals Tribunal. On 30 January 2018, XYDJ applied for a Bridging E (Class WE) visa citing as the circumstances that he was seeking review of the decision to cancel his substantive visa.[13]
[12] Refer G-Documents, page 19-25.
[13] Ibid at pages 13-17.
On 19 April 2018, XYDJ was taken into detention at XYZ Immigration Detention Centre. XYDJ was presented with documentation by the Department asking him to make an election as to whether he consented to being removed from Australia. XYDJ signed the form. Once he made that election, the Australian Border Force (ABF) were obliged to facilitate XYDJ’s removal from Australia as soon as reasonably practicable, unless he was granted a further visa, his bail was revoked, or he was taken into custody in relation to a criminal proceeding.
Accordingly, on 10 May 2018, the Office of the Director of Public Prosecutions (DPP) wrote to the Supreme Court of Tasmania to make an application to revoke XYDJ’s bail.[14] This application was granted and XYDJ was taken into remand at a prison in Tasmania. This meant that the ABF were no longer obliged to remove XYDJ from Australia.
[14] Ibid at pages 96-97.
On 20 April 2018, the Department of Home Affairs gave notice to XYDJ, through his lawyers, of its intention to consider refusal (NOICR) of his application for the bridging visa under s 501(1) of the Act.[15] On 17 May 2018, XYDJ’s lawyers provided a response to the NOICR. XYDJ also completed the Department’s Personal Circumstances Form. On this form, XYDJ stated there was no likelihood that he would re-offend because “I have been denying any wrong thing happened from begining(sic) to the present, so re-offence never exists”. XYDJ states on this form that he does not have any “diagnosed medical or psychological conditions”.
[15] Refer G-Documents, pages 78-80.
On 18 June 2018, XYDJ’s application for review of the decision to cancel his student visa was withdrawn.[16]
[16] XYDJ’s lawyers at the hearing before this Tribunal indicated that XYDJ’s application for review by the Migration and Refugee Division was still on foot at the time of the hearing, although he did not appear overly confident about that. This warranted a search of the Tribunal’s records which took place after the hearing and confirmed that XYDJ’s application for review of the decision to cancel his student visa was withdrawn on 18 June 2018.
XYDJ’s representative contends that XYDJ does not have a criminal record in Australia or in Hong Kong. This was not contested by the Minister. A National Police Certificate was tendered to the Tribunal verifying that there were no disclosable court outcomes recorded against the name of “[XYDJ] born on [Day Month] 1997” (in Australia) as at 16 March 2018.[17]
[17] Refer G-Documents, page 18.
The Minister’s representative contends that there is more than a minimal or trivial risk that XYDJ will engage in criminal conduct if he is allowed to remain in Australia and for this reason, he does not pass the character test under s 501(6) of the Act. The Minister’s representative contends that discretion is enlivened to refuse the bridging visa under s 501(1) of the Act and that the Tribunal should exercise its discretion to do so.
XYDJ’s representative, on the other hand, contends there is no risk that XYDJ will engage in criminal conduct. XYDJ’s representative contends that the Tribunal should find on the evidence that XYDJ did not engage in the conduct as alleged by Ms Complainant and consequently, that there is no basis to find that he does not pass the character test under s 501(6) of the Act.
For the reasons set out below, the Tribunal is not satisfied that there is a more than minimal or trivial risk that XYDJ will engage in criminal conduct if he is allowed to remain in Australia and consequently, that s 501(6)(d)(i) of the Act applies to XYDJ. The Tribunal is satisfied that none of the other criteria prescribed in s 501(6) of the Act apply to XYDJ, based on its consideration of the documentary evidence before the Tribunal. For this reason, the Tribunal concludes that XYDJ passes the character test under s 501(6). The decision under review is set aside and in substitution, this Tribunal remits the matter to the delegate of the Minister for reconsideration with a direction that XYDJ passes the character test under s 501(6) of the Act.
RELEVANT LAW
Section 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test (as defined by s 501(6)).
Section 501(6) of the Act provides that a person does not pass the character test if any one of the prescribed circumstances set out in subsections (a) to (h) of that provision apply. If none of those provisions apply, the person passes the character test.
The Minister contends that in this case, s 501(6)(d)(i) applies to XYDJ, namely, that “in the event the person were allowed to enter or remain in Australia, there is a risk that the person would engage in criminal conduct in Australia”. The Tribunal does not consider that any of the other circumstances apply to XYDJ nor was it contended by the Minister to be the case.
Section 500(1)(b) of the Act provides that an application for review by this Tribunal may be made of decisions of a delegate of the Minister made under s 501 of the Act (subject to s 500(4A) which is not applicable in this case).
Section 499(1) of the Act empowers the Minister to give written directions to a person or body having functions or powers under the Act concerning the performance of those functions or the exercise of those powers. Section 499(2A) of the Act provides that a person or body having those functions or powers under the Act must comply with such directions. On 22 December 2014, the Minister issued directions under s 499(1), entitled “Direction no. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction no. 65). The Preamble contained within s 5 of Direction no. 65 states that the direction provides a framework within which decision-makers should approach their task, relevantly, of deciding whether to exercise the discretion to refuse a non-citizen’s visa under s 501 of the Act.
ISSUES TO BE DECIDED
There are two primary issues to be determined by the Tribunal, namely:
(a)whether XYDJ passes the character test as defined by section 501(6) of the Act; and
(b)if the Tribunal finds that XYDJ does not pass the character test, whether to exercise discretion under s 501(1) to refuse to grant XYDJ the bridging visa.
EXPERT EVIDENCE
Forensic and medical examination
On 24 July 2017, a medical practitioner (Doctor) conducted a medical examination of Ms Complainant at the specialised Sexual Assault Service at the Hospital. The Doctor issued an expert report dated 24 July 2017.[18]
[18] Refer Exhibit “R1”, pages 312-325. The report also contained a 2016 date under the Doctor’s signature but this pre-dated the examination, so it is apparent that this is a typographical error.
In his report, the Doctor states:
(a)he first saw Ms Complainant at approximately 2.30am and the interview commenced at 2.50am in the presence of a Sexual Assault Support Service (SASS) counsellor. Ms Complainant was referred by the Police for “medical assessment of an alleged aggravated sexual assault”;
(b)Ms Complainant gave a medical history of, “No past medical or surgical history apart from removal of wisdom teeth and depression for which she sees a psychologist”;
(c)during the physical examination Ms Complainant was described as “orientated in time, place and person”. Ms Complainant was reported to be “visibly upset, but co-operative” and that she did not appear to be intoxicated or indeed, affected by alcohol at all. The Doctor also reported Ms Complainant to have “remained calm and co-operative”, although concerned while he took a history from her and examined her;
(d)the examination revealed no physical evidence of a sexual assault. Swabs looking for semen and DNA were taken;
(e)Ms Complainant presented as a “totally credible witness”; and
(f)there were no markings or any bruising on any part of Ms Complainant’s body; the surfaces of her hands and feet were marked normal and all parts of her genitalia were assessed as normal, including the mons, labia majora, labia minora, fossa navicularis, posterior fourchette, hymen, urethra, clitoris, inner thighs, anus, and perineal area.
The Doctor’s handwritten notes on the report state that the examination concluded at 4am[19].
Forensic biology report
[19] Refer Exhibit “R1”, pages 316-325.
On 3 October 2017, Forensic Science Services Tasmania issued a forensic biology report signed by two forensic scientists.[20] The report states that where possible the DNA profiles obtained in the case were compared to the DNA profiles of XYDJ and Ms Complainant.[21]
[20] Ibid at pages 193-200.
[21] Ibid at page 1 of the report.
The forensic biology report recorded the following results:
(a)high vaginal swab: semen not detected;
(b)low vaginal swab: semen not detected;
(c)vulval swab: semen detected & mixed DNA profile with two contributors (Ms Complainant being assumed as one of those contributors and “100 billion in favour of” XYDJ being the other contributor);
(d)pair of blue underpants: part of crotch area – semen detected; and
(e)bag of rubbish in room were damp and mouldy and therefore unsuitable for further examination.
CONDUCT OF XYDJ ON 23 JULY 2018
Ms Complainant’s version of events

No witness statement by Ms Complainant was lodged by the Minister in this application. Nor did Ms Complainant attend the hearing before this Tribunal to give evidence. At the hearing the Minister’s representative said enquiries had not been made for Ms Complainant to appear as a witness in this application. The Minister’s representative said this was their call in consideration that Ms Complainant would shortly be required to give evidence as a witness in the criminal proceeding against XYDJ, and that she “did not want to put her through it”, and that it may also expose Ms Complainant to a risk of making prior inconsistent statements. Instead, the Minister relies on the documentary evidence lodged comprising the G-Documents and the set of documents tendered as Exhibit “R1”, containing documents produced to the Tribunal under summons by the Police and the DPP.
Consequently, there was no opportunity for XYDJ’s lawyers to test the documentary evidence comprising statements made by or attributed to Ms Complainant, as she was unavailable for cross-examination at the hearing before this Tribunal. This diminishes the degree of weight the Tribunal will afford to Ms Complainant’s allegations; particularly given that the truthfulness of those allegations is disputed by XYDJ. Nevertheless, the Tribunal has closely considered all of the various accounts given by Ms Complainant, as contained in the documents lodged with the Tribunal, as to the events on and surrounding 23 July 2017.
Handwritten note prepared by Ms Complainant on 23 July 2017
On the evening of 23 July 2017, while Ms Complainant was waiting for the Police to arrive at her room, at the suggestion of Mr RSO from the University, Ms Complainant wrote down the following on a piece of paper:[22]
[22] Refer Exhibit “R1”, pages 245 (page one of two) and page 244 (page two of two).
~0940pm.       Drink with 3 friends (2 boys, 1 girl)
~1200am.       The girl left.
~0300am.       2 boys and 1 left the room.
1 of them back to his own room.
I left my room to go to the toilet.
Then come back and go to the bed.
I didn’t close the door, because I saw a boy left his stuff in my room   and I thought he will come back to get it.
~0315am.He came back to my room and I heard a girl said “why are you stay here” in the corridor, then we worried the girl will ~~come discover~~ come back, so he shutted the door.
After that, he asked me to drink more even if I told him I can’t drink more and I was ready to sleep.
At the same time, a girl in front of my door knock the door again.
I just ~~wor~~ concerned if they come to my room again will disturb my rest. And I belived(sic) she will leave if no one responses to her. So I asked the boy to keep quiet.
Afterwards, I think I have already fallen asleep but I realised someone was touching my body. I asked him to stop and hold his hand to stop him from doing that.
Suddenly, I feel he put his penis into my vaginal from the back, so I cannot stop him without awareness.
After about a minute, he stopped it and told me he wanna leave. I just worried about he will escape from his responsibilities and deny this incident has happened. Therefore, I grabbed his hand and ~~forced him~~ begged him don’t go away. At the same time, he tried to cleaned up his penis and my vaginal by using tissue. We have been entangled for 10 minutes. Finally, he ran away since I was feeling unwell and seek for the rubbish bin to vomit.
~0400am.I called the girl come and she accompanied me until I fall asleep.
~0400pm.I woke and called him to verify the incident. But he denied and said he didn’t remember of it.
As reported to Police officers who attended the scene at 00:35 on 24 July 2017
The Offence Report (comprising investigation notes recorded by the Police) was lodged with the Tribunal.[23]
[23] Refer Exhibit “R1”, page 128-156.
An entry by the two investigating Police officers who attended the scene of the alleged incident at 00:35 on 24 July 2017, states as follows:[24]
Victim in the matter was raped in her bed within her dorm at the university accommodation at approx. 3am 23/7/17. The matter was reported to police at approx. 2300hrs 23/7/17. Victim, 2 male friends (including offender) and a female friend were drinking in the victims unit till approx. 12mn when all other parties left. The victim had gone to the toilet and returned to the room. She has left the door unlocked as property belonging to other people was in the room. At approx. 3am she was woken to the offender entering the bed. The offender then raped her from behind. Uniform had collected a rubbish bag which had been placed into a communal bin. This garbage bag came from the victim’s dorm and contained tissues which the offender used to clean himself and the victim after the incident…
[24] Ibid at pages 154 and 155.
The “Summary and MO” seemingly recorded at 12.07pm on 25 July 2017 by one of the investigating Police officers, states as follows:[25]
Approximately 3am on Sunday 23 July 2017, [Ms Complainant] left the room and went to the toilet (Accommodation toilets separate to rooms). When she returned to her room both males had left. [Ms Complainant] left her door unlocked but closed as she noticed on of the males had left some belongings in her room and assumed they may come back for them. [Ms Complainant] then went to bed.
Approximately 3.15am [Ms Complainant] heard the suspect speaking with her female friend outside the door. The suspect has then entered the bedroom and then shut the door. The suspect then encouraged [Ms Complainant] to consume more alcohol before getting into bed with her.
[Ms Complainant] alleges that she tried to go to sleep and turned her back to him in bed. The suspect then lay beside [Ms Complainant] and started touching her body. He then penetrated her vagina from behind with his penis and she immediately told him to stop. He continued penetrating her vagina for approximately 30 seconds and then withdrew from her. The suspect then masturbated himself. Unsure if ejaculation occurred.
The suspect used tissue paper to clean both himself and [Ms Complainant]. [Ms Complainant] encouraged the suspect to stay in the room as she was concerned if he left that he would deny the incident and she would have no proof. After about 10 minutes the suspect was able to get away and left the room.
[Ms Complainant] remained in her room, called a friend, who attended and comforted her until she eventually went to sleep.
As reported to the doctor who conducted the medical examination of Ms Complainant at 2.30am on 24 July 2017
[25] Ibid at page 128.
The Doctor who conducted the medical examination at the Hospital, included two accounts of the “history” of this incident in his expert report.
The first appears in the Doctor’s handwritten notes signed by him and dated 24 July 2017, where he states as follows:[26]
At 9.30pm Sat night was drinking in her college room with girlfriend and two boys. The other girl left at midnight as was “drunk”. She and the boys kept drinking. At about 3pm, she needed to go to the loo so the boys left. She left her room door unlocked as there was some things in her room belonging to one of the boys. One of the boys returned and tried to get her to drink more alcohol. She refused. He started touching her but she declined and lay down to go to sleep. She felt him lie down behind her and then felt his penis in her vagina. She asked him to stop and he did. The penetration was for about 30 seconds. There was no condom and she did not think that he climaxed. The boy tried to leave but she restrained him. In a tangle of limbs she fell to the floor but denies being actually pushed. She does not feel that she was injured in the fall. The boy left when she was vomiting into a rubbish bin. Her girlfriend comforted her and stayed with her overnight. Since has the same underpants, has drunk 4 glasses of water, eaten one meal of rice and beef, passed urine once but not opened her [illegible], bathed or brushed her teeth.
Emotional presentation: concerned but restrained.
[26] Ibid at page 318.
The second appears in the Doctor’s typed report which was prepared on 24 July 2017, where he states:[27]
[27] Ibid at page 313 and 314.
Ms Complainant had been drinking with friends in her room at college since 930pm on Saturday 22^nd July. As she describes it there were two girls (herself included) and two boys. They were drinking Brewed Lemon and Rice wine. Ms Complainant was unsure of the amount she consumed but was confident it was not much. The previous week she had drunk three beers and felt significantly more affected then than on the 22^nd.
At midnight the other girl left and the two boys and Ms Complainant continued to drink in her room.
At 0300 Ms Complainant had to go the toilet and the boys left. Ms Complainant left her room unlocked when she went to sleep as there were some of the boy’s possessions in her room and she thought that they may need them.
Sometime later she heard her girlfriend and one of the boys talking outside her room and the boy came in and shut the door. Her girlfriend was knocking and Ms Complainant told the boy to be quite so that her friend may go back to bed.
The boy tried to get Ms Complainant to drink more alcohol, even holding a glass up to her lips but she declined. At this point Ms Complainant was in a nightdress and underwear.
The boy started to touch her in an intimate fashion but she was not interested and lay down on her bed facing the wall (her habitual position) to sleep. She felt the boy lie down behind her and then she felt his penis in her vagina. When she objected he withdrew. She thought the duration of the penetration was about 30 seconds and she thought that there had been no ejaculation.
The boy wanted to leave after this but she tried to restrain him, apparently to make him responsible for his actions. There was some entanglement of limbs and she fell to the floor. She told me that he did not mean to push her to the floor and that she was not injured.
Ms Complainant then felt sick and vomited into a rubbish bin. Whilst this was happening he left.
Ms Complainant called her friend and she stayed with her until she went to sleep.
Ms Complainant presented to the Tas Police at 11pm on Sun 23^rd.
Since the assault Ms Complainant had not changed her underwear, she had not showered or bathed, she had not brushed her teeth but she had passed urine once, drunk four glasses of water and eaten one meal of rice and beef.
This is the history as related to me by Ms Complainant and I believed she was sincere in her rendition of it. Although Ms Complainant is from Hong Kong her English was superb and I believe that there was no communication problem.
Police interview of Ms Complainant on 4 August 2017 at 1.29pm[28]
[28] The Tribunal notes that the base of the transcript refers to the date “03/10/2017”, however, the Police investigation notes appear to show that this interview took place on 4 August 2017.
At the start of the interview, Ms Complainant was warned by the Police officers interviewing her that it was an offence to make a false statutory declaration or false complaint.
Ms Complainant described the events on 22 and 23 July 2017 as follows (through a Cantonese interpreter):
On twenty second of July nine pm, nine forty pm I was drinking with three friends where I live.
So just three friends, I met them less than a month ago.
Uh because I’m an exchange student and the three of them are from the same school so we are the only friends we can rely on.
So we gather together all the time and at the time so yeah we have a gathering that night.
Ten till past twelve o’clock and one of us was drunk, was drunk she lives next bedroom to my room, yeah next room to mine.
So we like we talk her into going back to her room uh we saw her go into her room uh so there were only me and two male friends.
So while we were going to leave and I was going to the toilet and then went back to my room to sleep and the three of us left that room at the same time.
When, after going to the toilet I went back to my room and noticed someone left their coat in my room.
I thought they would come back to get the coat and then left by themselves.
So I didn’t lock the door, I just closed the door and then I went to bed to sleep.
Uh about five minutes later I heard a girls voice in the corridor and I was sure that was the girl who we went her back to her room and she was saying. “Why are you still here”?
I didn’t see them but then I saw they were talking in a corridor with other people and at the same time someone ran into my room and I knew it was one of my friends.
He came in and closed the door quickly.
I didn’t want, I didn’t want girl to come in and started the party again so I just asked the boy not to make any noise I think the girl was (inaudible) down/
After a while it was quiet and one of the boys gave me a glass of wine, forced me to drink it.
Uh I had two sips and I think I didn’t want to drink it anymore and I told him that and at that time the girl was knocking on the door, they were too loud and girl was thinking we were still having a party to I said, “Not to make noise and be quiet”.
And after a while I went to, I went into sleep after a while I found someone was touching me, I was facing the wall at the time and the person was touching me from the back and I just said, “Don’t touch”.
So because I told him not touch me, I thought he would stop and because I had a lot of drinks so I was too tired to uh to say anything.
After a while I felt that his penis was going into my vagina.
It hurt so I woke up and I got him, not letting him go so we were fighting like pulling each other and he actually pulled me off the bed so off the bed I was holding onto him not letting him go and then he put his penis into my mouth so we were fighting with each other a little bit and then I fell off the bed.
…
And I fell very, I felt not well, feeling sick (inaudible) and I went to get the rubbish, I went to the rubbish bin and he ran away.
And then I rang my girlfriend next door, she came to sit with me and I told her that the boy had
… violated me…
Ms Complainant told the Police that she slept until lunch time (on 23 July 2017) and that she was “thinking whether that really had happened”? She told them that she “felt it hurt in my body” so that she was sure it happened. Ms Complainant called a friend in Hong Kong who advised her to ring the Police. Ms Complainant said that at the time she did not know anyone else “here” and if she reported it to the Police “they will not like stay with me anymore” and that she did not know what to do.
In this interview, Ms Complainant told the Police the following:
So at four o’clock in the afternoon I rang that boy and ask him if he remembered what happened.
Uh he told me he could only remember that they were playing card games, drinking and the last thing he could remember was uh I didn’t let him go and he didn’t think that was reliable or didn’t believe what happened and he denied he had done that.
During the conversation, during the phone call he said, suggested a few times we talk to face to face and he would come to my place.
Uh so I opened the door for him but after he come into my room we didn’t talk much until thirty minutes later the other girls was knocking on the door…
…Yeah thirty minutes later.
Yeah thirty minutes like the other girl knock on the door and the three of us sit together and I asked them, “What should I do now”?
And I said, “We maybe we should report it to the Police”.
Uh but they didn’t want any trouble and they didn’t want to make it a big issue but at the time I thought the girl wasn’t thinking for me, didn’t care how I felt and they were selfish.
After they left I rang accommodation service uh the person’s name is Alex.
Toward the end of the interview, Ms Complainant was asked why she came to the Police that day to which she responded that she “wanted to make it formally” and that “he just act blind, he think like nothing should happen and I see him laughing everyday”.
XYDJ’s version of events
The transcript of the Police interview of XYDJ on 10 August 2017 was provided to the Tribunal. XYDJ told the Police that on 22 July 2017 he had breakfast with Ms Complainant, Ms Female Friend and Mr Male Friend and then went to a market. He said they walked around a bit and ended up in the city centre. He said they went to the supermarket and purchased some things and bought some alcohol. He said the reason why they purchased the wine was because Ms Complainant liked to drink. When asked why he said that, XYDJ said that Ms Complainant had said so herself. He said Ms Complainant did not purchase wine, but instead she purchased [cider].[29] He said that they bought a bottle of red wine and three big bottles (one litre each) of the [cider]. He said they went back to have dinner and then “uh arrange for another time to drink wine”.
[29] The cider was referred to in the various interviews and statutory declarations as “fruit drink” or “something like beer”. For simplicity and to avoid confusion, the Tribunal has used the reference [cider]. The drink concerned was Fat Lambs, which is an alcoholic cider beverage.
XYDJ said that Ms Complainant had decided that the drinking would take place in her room. XYDJ said that he asked “them” to open the door for him at about 9.30pm, because he lived in a different house. He said that in the beginning only Ms Complainant and Ms Female Friend were present as Mr Male Friend had forgotten something so he had returned to his room. He said that when Mr Male Friend returned, Ms Complainant “lean towards me and said she wanted to show me a photo”. XYDJ he was sitting on Ms Complainant’s bed with her when he was looking at the photos and Ms Female Friend was sitting on a chair. XYDJ said he could not remember what Ms Complainant was wearing.
XYDJ said that when Mr Male Friend returned, the four of them started drinking and playing card games. He said they turned the lights off and left the coloured light on. He said that after many rounds of the card games, Ms Female Friend’s face started to turn red and “she’s drunk”. XYDJ said that the drinking game, Ring of Fire, had a rule that might lead to the players being required to drink wine as a penalty. XYDJ said that early on Ms Female Friend had “picked up the card” and became the “drinking girl”, which was why she was the earliest one who had red cheeks and was “looking drunk”. He said that Ms Female Friend went to the toilet and “didn’t look too good”, so he and Mr Male Friend took her back to her room because they did not want Ms Female Friend to drink anymore. XYDJ said he could not remember what time it was when Ms Female Friend left.
XYDJ said that he also drew the drinking card, and as a result he drank a lot.
XYDJ said that after Ms Female Friend left, they thought they should talk “in a smaller voice” and they changed the card game they were playing to poker. He said that to get another card, the player had to take a sip. He said there was one round where Ms Complainant had to take 12 sips. He said that he and Mr Male Friend also had a lot to drink. Mr Male Friend got to a point where he said “had enough drinking” and that he was going back to his room. XYDJ said he could not remember if Mr Male Friend had asked XYDJ to go with him when he left, and that he might have. XYDJ said he did not leave at that time for the following reason, “As far as I remember I wanted to see [Ms Complainant] drinking because she lost so I wanted to see that she finish her drink”.
XYDJ stated as follows:
After that I sort of like conk out, sort of like lose consciousness, can’t remember things. I think that [Mr Male Friend] had left first. I didn’t know how much [Ms Complainant] had (inaudible) but I was going to stay until she finished drinking and then I wanted to leave. Then after that I think I left but I couldn’t remember anything. So I can’t remember whether I left. Even though when I(sic) person is drunk he still should have a little, stay a little bit consciousness. I remember like two or three sections of the incident. Uh what she said, that whole process I did not remember. I only remember that she was pulling me saying that, “Don’t leave me”. But I really wanted to leave. When she was pulling me she asked me to, “Stay”. To keep her company. So the next image I remember is I successfully freed myself and left and then I was in bed without taking off my clothes. My room, on my room. And tell em that it’s the next day already I woke up.

XYDJ said he could not remember if anyone knocked on Ms Complainant’s door. He said he remembered going to the toilet but could not remember at what time or who he went with. Upon questioning, XYDJ said he had no memory of whether:
(a)he came into Ms Complainant’s bedroom and laid down beside her on the bed;
(b)he put his hand on Ms Complainant’s breast or whether she had said “Don’t”;
(c)he put his finger into Ms Complainant’s vagina;
(d)he said words to Ms Complainant or she said words to XYDJ, “Can I make love to you?”
(e)Ms Complainant was in the bed sleeping;
(f)he pulled Ms Complainant’s underpants down;
(g)he put his penis in Ms Complainant’s vagina from behind;
(h)Ms Complainant asked him, “What are you doing?”
(i)he said words to Ms Complainant, “Don’t worry about it, forget about it?”
(j)he wiped his penis or any part of Ms Complainant’s body with a tissue;
(k)he took his pants down at all;
(l)he forced Ms Complainant’s head on his penis (XYDJ stated that he felt that was “definitely not possible”);
(m)he ejaculated in Ms Complainant’s room; or
(n)he was under the bed covers with Ms Complainant.
XYDJ stated that he felt the whole event did not happen. XYDJ said he remembered three things – firstly, Ms Complainant pulling his hand and asking him, “Not to leave, to keep her company”; secondly, XYDJ successfully escaping from Ms Complainant’s room and going back to his room; and thirdly, XYDJ going to sleep in his bed.
XYDJ said that there was some wine left but they had consumed all of the [cider]. XYDJ said in Hong Kong he drinks “maybe once in a few months”. XYDJ said as far he remembered, Ms Complainant was not drunk but she had drunk a lot and especially in the poker game as she had lost a lot. He said that up until the point that XYDJ could remember, he said Ms Complainant was “quite alert” and “maybe four” on the scale a scale of one (being sober) and ten (being drunk). XYDJ said said he lost his memory and that he thought he was a “ten”. He stated that he drank more than half of the bottle of red wine and “quite a fair bit” of the [cider] – “definitely more than [Mr Male Friend] but compared to [Ms Complainant], I don’t know”.
XYDJ stated that when Mr Male Friend left, XYDJ and Ms Complainant were sitting on her bed. He said he could not remember if she left the room at any time. XYDJ said he remembered Ms Complainant holding up the glass, putting it to her mouth and he thought she was drinking. He said he could not remember helping her to drink. XYDJ said he could not remember having a conversation with someone in the corridor and them asking him, “Why are you still here?”
XYDJ was asked whether he liked Ms Complainant to which he said, “no”. He said he had a girlfriend who was an exchange student in New Zealand. XYDJ said he not had sex with or been intimate with Ms Complainant before. XYDJ was asked whether he had experienced memory loss in the past and he said he had, “two to three times I’ve had”, including one time on his birthday when he was drinking.
XYDJ was asked why he had a good recollection up until the allegation and he responded, “Yes because I wasn’t drunk then”. The following exchange took place:
Q           And your memory up until that allegation is quite fine.
A  Yeah ok (inaudible)…
Q           Then all of a sudden you have no memory.
AJust before the penalty part when I wanted to see her drink all that, I roughly remember what happened but after that, no memory except (inaudible).
QDo you think that seems convenient to just not remember all of a sudden?
A  What do you mean by convenient?
…
QUp to the point until you’re, you know could get into trouble, you remember everything until the bit where you could get into trouble.
A           I also want to remember but I can’t.
At the end of the interview, XYDJ was asked why Ms Complainant would say that he had engaged in this conduct with her. XYDJ’s response was as follows:
AI don’t know, I don’t quite understand her. I only know that she likes to play and she seems to be not what she appears to be, she’s quite deep inside so what she appeared to be and what she’s thinking are not the same.
Q What do you mean by ‘play’?
AI don’t really know how to explain it but it’s just something like she’s a very eloquent person, she talks very well, she knows what to say at what time and do things at what time and she knows how to please people.
XYDJ also made the following about Ms Complainant:
…Then afterwards [Ms Complainant] was also very strange, I don’t understand the process of this investigation. Sometimes she will ask me, “Should I charge, should charge or not?” And then she would say something like, “I can charge you anytime”. I find it very strange if I’m a rapist you wouldn’t want to talk to a rapist or look at the rapist and happily doing things, shopping and cooking with him.
XYDJ said Ms Complainant had continued to do those things (shopping and cooking) with him since the alleged incident.
At the hearing, XYDJ (through his representative) indicated to the Tribunal that he had no plans to return to Tasmania after he left in December 2017 because “it was too expensive”.
Ms Female Friend’s statutory declaration
The Police took a statutory declaration from Ms Female Friend on 8 August 2017.[30]
[30] Refer Exhibit “R1”, pages 174-177.
Ms Female Friend stated that she travelled to Australia with XYDJ, although she did not know him prior. Ms Female Friend said she arrived on 6 July 2017; met Mr Male Friend a couple of days after arriving in Tasmania; and then met Ms Complainant the following day. Ms Female Friend said they all became friends. Ms Female Friend said that Ms Complainant, Mr Male Friend and her were living in the [university’s accommodation facility] and XYDJ was living in the nearby University apartments.
Ms Female Friend said in the first week she did not have lessons, as it was orientation week. She said that the four of them spent their leisure time together and went to the city centre, shopped and cooked together. The following week, Ms Female Friend said they did not spend as much time together as they had classes, however, they spent time “chatting and cooking together” in XYDJ’s apartment. She said there were a couple of students who did not like them cooking in XYDJ’s block, so the following week they went to “our area” to cook the food and that sometimes they would go to Ms Complainant’s room to chat. Ms Female Friend said the room was not big, so Ms Complainant, XYDJ and herself, would usually sit on Ms Complainant’s bed and Mr Male Friend, on the chair.
Ms Female Friend said that “from our chatting I know that [Ms Complainant] likes drinking beer”. Ms Female Friend said that on 15 July 2017, she consumed alcohol for the first time. She said Mr Male Friend and XYDJ were drinking wine and Ms Complainant was drinking beer and that “nobody got drunk”.
Ms Female Friend stated that they went to a market on the morning of 22 July 2017. She said they went to the city centre to do some shopping and to a liquor store to buy the alcohol “because [Ms Complainant] wanted to drink some alcohol so she suggested we drink at night”. Ms Female Friend said the red wine had about 10 or 11% alcohol in it and the [cider] had about 8% alcohol in it. She stated they played card games that night which involved drinking alcohol if certain cards were drawn.
Ms Female Friend stated that XYDJ, Mr Male Friend and herself sat on Ms Complainant’s bed that night, while Ms Complainant sat on the chair. She said she was not drunk but her “bodily function is not in the normal way”. She said she felt tired but her mind was clear and she could “hear what they are saying”. Ms Female Friend said “they” suggested that she go back to her room and Mr Male Friend and XYDJ took her there, being “one room apart” from Ms Complainant’s. She said they left Ms Female Friend in her room and turned off the lights but a few minutes later she went to the toilet.
At the toilet, Ms Female Friend said she met with XYDJ and Mr Male Friend (the toilets are communal), and she told them she wanted to stay with them and chat. They went back to Ms Complainant’s room at which time, Ms Complainant was on her bed. Ms Female Friend told Ms Complainant that she wanted to stay with them but Ms Complainant said the party was at an end. Mr Male Friend and XYDJ took Ms Female Friend back to her room. Ms Female Friend said she lay down as she had a headache and XYDJ and Mr Male Friend left her room. She said “maybe I sleep I think”.
At around 3am, Ms Female Friend said she heard some voices in the corridor so she got up to go to the toilet and at that time she saw XYDJ go back into Ms Complainant’s room. She said she did not see Mr Male Friend. Ms Female Friend said she went to the toilet and then went to Ms Complainant’s room. She said the door was shut and she could hear Ms Complainant speaking in Chinese and she was saying, in a soft tone, that she did not want someone to leave her room. Ms Female Friend said she knocked on Ms Complainant’s door because she could not sleep; was bored and wanted to chat with them but no one answered the door. Ms Female Friend said she went back to her room.
At around 3.50am, Ms Female Friend said she went out of her room and could still hear some voices coming from Ms Complainant’s room, so she knocked on the door. She said no one answered so she called Ms Complainant’s phone at 3.54am and XYDJ’s phone 3.55am. Ms Complainant and XYDJ did not answer those calls. Ms Female Friend said she did not hear either of the phones ringing (from outside of Ms Complainant’s door) so she returned to her room.
At 4.14am, Ms Complainant called Ms Female Friend. Ms Complainant was crying and told Ms Female Friend that XYDJ had raped her. Ms Female Friend told Ms Complainant she would come to her room which she did immediately. Ms Female Friend said Ms Complainant was sitting on the floor crying, wearing the same dress that she slept in. She said that Ms Complainant kept saying that XYDJ had raped her. Ms Female Friend said that she told Ms Complainant that she had knocked on the door twice and called her. She asked Ms Complainant, “why didn’t you answer me, as maybe I could have stopped that from happening”. Ms Female Friend said Ms Complainant did not answer her question. She said that Ms Complainant vomited into her rubbish bin several times. Ms Complainant said she was tired so she went back to her bed to lie down. Ms Female Friend said she helped Ms Complainant and stayed with her for about 50 minutes. Ms Female Friend offered to stay with Ms Complainant but Ms Complainant told her to go back to sleep in her own room.
On 23 July 2017, Ms Female Friend had lunch with XYDJ and Mr Male Friend in the normal way, chatting and laughing. She said she wanted to tell Mr Male Friend, but did not at that time because XYDJ was present.
Later at 3pm, Ms Female Friend sent a message to Mr Male Friend to ask him where he was. He said he was at the gym. Ms Female Friend went there and XYDJ was with Mr Male Friend. At this time, Ms Female Friend asked XYDJ what he did with Ms Complainant “last night”. Ms Female Friend told Mr Male Friend that Ms Complainant had told her that XYDJ had raped her. XYDJ said the he did not do that. He said he had forgotten what he had done last night but one thing he could remember was that he “really, really” wanted to leave Ms Complainant’s room but Ms Complainant “rejected that by pulling his arm”. Ms Female Friend said that XYDJ was not good at memorising things. She said that XYDJ told her that finally he found a chance to get out of her room, so he left.
Mr Male Friend told Ms Female Friend that after Ms Complainant had told Ms Female Friend that the party was at an end, he and XYDJ wanted to get their clothes they had left in Ms Complainant’s room. He said that when they went back, Ms Complainant “said for them to drink with her”. Mr Male Friend told her that Ms Complainant and XYDJ drank more and Mr Male Friend only drank a little bit. He said that Ms Complainant “laid down” on XYDJ several times. Mr Male Friend told Ms Female Friend that he and XYDJ told Ms Complainant that they wanted to leave the room “but something happened and [Mr Male Friend] could leave but [XYDJ] couldn’t”.
While they were in the gym, XYDJ told Ms Female Friend and Mr Male Friend that Ms Complainant had told XYDJ to come to her room.
At about 5.45pm, XYDJ sent a text to Ms Female Friend to ask her go to Ms Complainant’s room without Mr Male Friend, which she did. She said that Ms Complainant was laying down on her bed texting and XYDJ and Ms Female Friend “just sat there quietly without saying any words”. Ms Female Friend said that sometimes Ms Complainant had asked them how to solve the problem “but we didn’t know how to answer that”.
Ms Female Friend said she asked XYDJ why he did not answer her telephone call that night. XYDJ told her he did not hear the phone.
On 16 August 2017, Ms Female Friend sent an email to the investigating Police officer as follows:
…I am writing an email to address the very serious worries that I have now. I hope you could resolve my worries and I think I should inform you about that.
When I finished the statement, we have no more contacts with [Ms Complainant], because I feel embarrassing when staying with her and I do not know what to say with her. These days, as I live next to her, I have met her some times in the common area. When I saw her, she didn’t chat with me and with a black face. Also, she turned off the door with a load voice when getting into her room while I was there.
Also, on 15 AUG around 0020, I went to the common area to pour water into my water bottle. I heared that she was talking with someone on phone in a loud voice. She has mentioned several things that worries me a lot.
First, she said that there is no proof showing that [XYDJ], [Mr Male Friend] and me talked about this case with others in the common kitchen. Actually, a week before, she told me and [Mr Male Friend] that one of her group project mates, who also cooks in the kitchen, asked her about the case. At that time, she said she was told by her groupmate that the person who ‘spread’ this out is [Mr Male Friend]. So, she wanted to confirm with that. She asked us in a question way. As we have not much direct contacts with others in the kitchen before, we do not even chat with them. So, there is no reason for use to tell others about this case and also we have been struggled about this already since it happened. There is no possible reasons for us to tell others and that is of course not a happy matter that we will share with others. After hearing what [Ms Complainant] said on 15 AUG, I have worries that whether she was telling lie to us. I don’t know her reasons for doing that. I was shocked when I heard that.
Second, she said if [XYDJ], [Mr Male Friend] and I got some penalties, she will be happier with that. I was totally shocked when I heard that. I was thinking that how come she can say something like that. I feel like she is playing us, in an unbelievable way. We don’t the reasons behind and what she is thinking in her mind. I am super worried about that. I don’t know what she will do with me. It’s not a game and it is not funny to that or say that. All of us are worried about the case. But my feeling towards her is that she may try to find some penalties for us. I feel sad and confused about what she is doing.
Thank you for your attention.
Mr Male Friend’s statutory declaration
The Police took a statutory declaration from Mr Male Friend on 9 August 2017.[31]
[31] Refer Exhibit “R1”, pages 178-181.
Mr Male Friend stated that he arrived in Tasmania on 8 July 2017. He said he became friends with Ms Complainant, XYDJ and Ms Female Friend. He said he met Ms Complainant first. He said that Ms Complainant, Ms Female Friend and he had “the interview” in Hong Kong first. He said that Ms Complainant contacted him on Facebook and they chatted after that. He said that Ms Female Friend “created the group” sending them an email, “getting our whatsapp” and phone numbers before arriving in Tasmania.
Mr Male Friend said they had dinner together at 7.27pm on 22 July 2017 and finished at about 8.30pm. He said they finished early because they planned to have a drink together. Mr Male Friend said:
Before we bought the alcohol we had all had consent that we would have a drink that day after dinner. We don’t buy alcohol randomly we buy it on purpose. This was only the second time we had drunk alcohol together. The first time we buy alcohol the decision was made by [XYDJ] and [Ms Complainant].
Mr Male Friend said they started to drink at around 10pm and play cards games. He said that there was “drinking a lot of alcohol in the card game”. Mr Male Friend said that XYDJ, Ms Female Friend and he, were sitting on Ms Complainant’s bed and Ms Complainant was sitting on a chair wearing a grey dress.
Mr Male Friend said that at 11.58pm, Ms Female Friend was “physically uncontrollable and affected by alcohol” and they sent her back to her room. He said XYDJ and him took her back to her room but Ms Female Friend said she wanted to “stay and listen but all of us said that she was better to sleep first”.
Mr Male Friend said he only drank the red wine and the others drank the cider. He said they finished the lemon cider before Ms Female Friend went to bed. He said XYDJ, Ms Complainant and Ms Female Friend had a little bit of red wine before drinking the cider. Mr Male Friend said that after Ms Female Friend went to bed, he continued chatting with XYDJ and Ms Complainant in her room. Mr Male Friend said that he was sitting on the chair; Ms Complainant was sitting “in her bed under her soft quilt” and XYDJ was sitting on her bed but not under the quilt cover.
Mr Male Friend said they continued to drink and play the card game. Mr Male Friend said he stopped for a while because he did not want to drink and wanted to chat to his Japanese friend between 11.57pm and 12.34am. XYDJ and Ms Complainant told Mr Male Friend not to play with his mobile phone.
Mr Male Friend said he played Black Jack with XYDJ and Ms Complainant from 12.34am. He said they played for a while and then stopped and chatted about his “status” with his Japanese friend. Mr Male Friend said he had stopped drinking because he realised he would not be able to handle himself if he kept drinking. He said that XYDJ and Ms Complainant did not drink while they were chatting. After they were chatting, Mr Male Friend said they started playing a card game again for about an hour but “I think we all recognised that I(sic) situation was not good so drink slowly and play slowly”.
Mr Male Friend said someone knocked on the door before 1am. He said they thought it was Ms Female Friend so they pretended they were not there, so Ms Female Friend could sleep.
Mr Male Friend said that Ms Complainant lay against XYDJ at least three times. Mr Male Friend said the first time XYDJ “did some refusal” and the second time, he did not resist and Ms Complainant lay against him. Mr Male Friend said the third time Ms Complainant lost the game and lent against XYDJ’s arm near his shoulder. He said he remembered XYDJ watching Ms Complainant and helping her to drink by holding the cup. Mr Male Friend said Ms Complainant would lean against XYDJ for about five minutes each time.
Mr Male Friend said they had turns as “banker” until about 2.40am and then Mr Male Friend decided to leave. He said XYDJ and Ms Complainant did not try to stop him. Mr Male Friend said he asked XYDJ if he wanted to leave with him and XYDJ said, “After [Ms Complainant] finishes her penalty I will leave”. Mr Male Friend said he left. He said Ms Complainant went to the bathroom and XYDJ stayed in Ms Complainant’s room, standing in the doorway. Mr Male Friend said he went to his room and prepared for bed. He said he chatted to his Japanese friend until 3.05am and then went to sleep.

Mr Male Friend said that at about 3pm on 24 July 2017, Ms Female Friend found him and XYDJ in the gym to ask them what happened and that Ms Complainant had told her that she was raped by XYDJ. Mr Male Friend said XYDJ “seemed to know nothing” at that moment. He said that Ms Female Friend told them that Ms Complainant had called her at about 4am and she stayed in Ms Complainant’s room for more than an hour and that Ms Complainant was “very emotional” and “very unhappy” and could not sleep. Mr Male Friend stated:
I was trying to ask him several times, what did you do last night, is this real and he said he cannot remember anything clearly after the time that I left and he said he just remembered three things. The first thing is he wants to leave but [Ms Complainant] stopped him. The second thing is [Ms Complainant] said “I love you” to [XYDJ] “don’t leave” and the third thing he said to me was he was in his room suddenly and he didn’t know how he can come back to his room. These are the things that [XYDJ] told me. I kept asking [XYDJ] is this really that you cannot remember anything about that night and I repeated the questions and asked another way and he told me I really cannot, please believe me. [XYDJ] also said that he cannot be sure if he did it or not, therefore he was very worried and asked what he should need to do. He asked me this because he knows I am studying in Criminology. I suggested that he should talk to [Ms Complainant] face to face.
Mr Male Friend said that at about 4.30pm, Ms Complainant called XYDJ, while he and Ms Female Friend were present in the company of XYDJ. He said XYDJ and Ms Complainant chatted for about 30 minutes and that XYDJ said he was called to go to chat with Ms Complainant in her room.
Mr Male Friend said that on 25 July 2017, Ms Female Friend told him that Ms Complainant had asked Mr Male Friend to go to a meeting in Ms Complainant’s room. Ms Female Friend and XYDJ also attended. Mr Male Friend said this meeting went for 21 minutes and that he had a record of that meeting. He said that at this meeting, Ms Complainant asked XYDJ if he knew what happened. He said that Ms Complainant asked him what she should do and she told him the Police had been there the previous night. He said that Ms Complainant said she did not want to “make it become serious” but “she had no choice”. Mr Male Friend said XYDJ did not say anything during this meeting. He said that Ms Complainant was crying for some of the meeting and after the meeting, she was “smiling, cooking with us, standing near [XYDJ] and pretending like nothing had happened”.
Mr Male Friend said he had dinner with Ms Complainant and Ms Female Friend in the week prior to 9 August 2017, and they had a “chat about the issue”. He said that

Ms Complainant asked Mr Male Friend what she could do and that Mr Male Friend gave her some suggestions. Mr Male Friend said he asked Ms Complainant about what happened. Ms Complainant said that after Mr Male Friend had left and after she had finished the penalty; she was lying down on her bed and wanted to sleep; that XYDJ was sitting on her bed and that “she just suddenly had a feeling of pain”. Ms Complainant would not say where the pain was. Ms Complainant said that XYDJ got a tissue to clean something after she got the pain. Ms Complainant said she did not know what he was cleaning. Mr Male Friend asked Ms Complainant if XYDJ wanted to leave and Ms Complainant said, “yes but it is because I want to resolve that issue he did towards me, therefore I cannot just let him leave”. Ms Complainant told him that she had a strong feeling of vomit and went to the bathroom and when she came back he was gone and Ms Complainant called Ms Female Friend.
Mr RSO’s statutory declaration
The Police took a statutory declaration from Mr RSO from the University on 24 July 2017.[32]
[32] Refer Exhibit “R1”, pages 182-184.
Mr RSO stated that at 6.26pm on 23 July 2017, he received a telephone call from Ms Complainant who told him that something had happened involving her friends. He said he could tell by the tone of her voice that something was wrong; she sounded upset and seemed to be trying to hold herself together. Mr RSO offered to come and see her which she accepted.
Mr RSO said when he arrived at Ms Complainant’s room, Ms Complainant ushered her in quickly as if she did not want anyone to see him talking to her. Ms Complainant said she had been drinking alcohol with her friends in her room the night before and they left the room at about 3am that day. Ms Complainant told Mr RSO that one of her male friends came back to her room “after everyone was gone” and “tried to have sex with her against her will”. Mr RSO stated:
When I asked [Ms Complainant] if anything physical had happened between herself and the male she told me that there was partial penetration involved where the male entered her with his penis.
Mr RSO said Ms Complainant was quite open with the details of the incident but was quite evasive about the name of the male and did not want to call the Police, as she did not want to get the male in trouble. Ms Complainant told Mr RSO that she was concerned about telling her friends as she was not sure they would believe her as the male was a part of the “friend group”. Mr RSO offered Ms Complainant counselling and invited her to contact him and then left Ms Complainant’s room and made an incident report.
Mr RSO stated that Ms Complainant called him again at 10:43pm that same evening and said she wanted to make a report to the Police. Mr RSO offered to assist Ms Complainant to do so and she accepted that offer. Mr RSO returned to Ms Complainant’s room. Mr RSO said that Ms Complainant asked him to telephone Police on her behalf. The Police attended at the University. Mr RSO said that while they were waiting for the Police to arrive, he asked Ms Complainant to write down what she remembered in dot points in order to assist her memory of the incident.
Mr RSO said he assisted Ms Complainant with this note and to help her with the concepts that she was struggling to express. Mr RSO said that Ms Complainant had told him that she had said “no” to the male before he physically penetrated her and she told him that the male was trying quite hard to get her to drink more alcohol. Mr RSO returned to his office to his office to finish his incident report after Ms Complainant indicated it was okay for him to do so. Mr RSO’s incident report was not before the Tribunal as evidence in this application.
Mr RSO said the Police arrived at the University at about 11:31pm and he took them to Ms Complainant’s room. Mr RSO remained, at Ms Complainant’s request, while the Police spoke to her. Mr RSO said that the entire time he spent with Ms Complainant he “could see that she was upset and indecisive regarding the problem she was facing”.
Transcribed recordings of telephone discussions and meetings after the alleged incident
The Tribunal has considered the transcribed and translated (from Cantonese to English) recordings of various telephone discussions and meetings that took place between Ms Complainant, XYDJ, Mr Male Friend and Ms Female Friend (in combination and altogether). There is no reference on the documents (or in the affidavit by the translator), to the dates upon which those conversations took place; however, it is apparent from the matters discussed that they took place shortly after the alleged incident. It is also not clear whether the transcripts before the Tribunal are records of the entire conversations or parts of them. XYDJ’s representative did not object to this evidence, being recordings made without notification to XYDJ; in fact, XYDJ’s representative sought to rely upon that evidence at the hearing.
The Tribunal has not set out in these Reasons for Decision all of the transcribed conversations, except for one that appeared to have taken place between Ms Complainant and XYDJ on 23 July 2017.[33] The transcript of this conversation is set out in Annexure A. The Tribunal considers this conversation was of particular note. In the context of a conversation that XYDJ understood at the time to be private between himself and Ms Complainant, XYDJ expressed genuine surprise at the enquiry made by Ms Complainant and the allegations to follow. In this transcript, XYDJ’s description of his memory was consistent with the subsequent accounts he gave to the Police on 10 August 2017. Specifically, XYDJ said he remembered wanting to leave Ms Complainant’s room and that Ms Complainant dragged him; he eventually freed himself; Ms Complainant had told him “Don’t go. Keep me company. Keep me company. Now here, just you and me” and he remembered Ms Complainant grabbing XYDJ’s hand firmly.
[33] Refer Exhibit “R1”, pages 292-297.
The Tribunal was puzzled by the approach of Ms Complainant in making those calls. Ms Complainant seemed to be seeking an apology from XYDJ. XYDJ said that he could not remember doing what she had alleged, but nevertheless XYDJ was prepared to offer an apology to her. When he did so, Ms Complainant did not accept it. Otherwise, Ms Complainant was repeatedly asking XYDJ what he thought she should do and made it clear through her comments that one option was for her to pursue it with the Police. At another point she told XYDJ, “You don’t need to beg me. If I had wanted to report to the police, I would have done it in the first place. Why did I call you instead?” Ms Complainant either cried at times during that conversation and other times, expressed a desire to want to continue to eat and socialise with XYDJ, Ms Female Friend and Mr Male Friend.
At one point during the in-person meeting between all four of them, Ms Complainant stated:
F1: (Cry) In the beginning, I mean before I saw the COUNSELOR, everyone that I talked to asked me not to stay with you guys any more. But this is not what I want. Why did they (cry) just force me to do things that I don’t want to do? (cry)
M1: Um.
F1: (Cry) Then when I was waiting in the OFFICE of the BUSINESS Faculty (cry), the staff there asked me if you and I attended the same class and if they could help transfer me to another class. I (cry) considered it for a long time. Actually, I don’t want that. We can still attend the same class.
M2: Um.
F1: (Cry) I didn’t come down to eat yesterday. (Not clear) gave things to me up here. I saw you ate unhappily on that side. (cry) I want to stay with you guys. (cry) Can I?
M1: Yes.
F2: Um.
…
F1 Um. (cry) They took away the bottle of wine that we didn’t finish. It is okay. They will return it to me.
M1: Um.
F1: (Laughter) What do you mean?
Police investigation
Based on the Police investigation notes in the Offence Report:[34]
[34] Refer Exhibit “R1”, pages 128-156.
(a)on 10 August 2017, Ms Complainant told Police she was with XYDJ on 9 August 2017 when Police called him to arrange for him to be interviewed;
(b)XYDJ emailed Police on 11 August 2017 and advised that Ms Complainant had told him that she had received a call from Police and that “she can withdraw the case”.[35]   XYDJ provided Police with a screenshot of a conversation he had with Ms Complainant as follows:
[35] Ibid at page 146.
Ms Complainant (20:34):       Where ru
XYDJ (21:15):               ?
Ms Complainant (21.29)         Had din alrdy?
XYDJ (21:25)                yes
Ms Complainant (21:29)        How ru tdy
XYDJ (21:29)                fine
Ms Complainant (21:40)        Just received the call from them
Ms Complainant (21:40)        Shd it be continued?
XYDJ (21:46)                what do u mean
Ms Complainant (21:48)        Wht do u want me to do actually
XYDJ (21:51)                What can u do?
Ms Complainant (21:53)        I can withdraw from tht if it’s worth to do it
(c)on 11 August 2017, the investigating Police officer responded to XYDJ advising him that she had spoken to Ms Complainant the previous day but did not discuss with her “withdrawing the complaint”;
(d)on 24 August 2017, the investigating Police officer asked XYDJ whether he had had any further contact with XYDJ. XYDJ replied by email on 26 August 2017 stating that:
After that, she had contacted me once on snapchat and ask if she should continue. I thought she means continue the investigation and I answer no, but she replied that that’s great and she would never stop investigating. I thought she misunderstood me. Then, we have no contact anymore.
(e)on 1 September 2017, the investigating Police officer contacted Ms Complainant and was informed by her that she was going to New Zealand on a tour that day. Ms Complainant said that XYDJ was on the same flights and would be in the same city, but they were not part of the same tour. Ms Complainant said she had some concerns for her safety away from Tasmania regarding XYDJ. The investigating Police officer asked her if she has had any trouble or indications of threats to her safety from XYDJ, and Ms Complainant stated “no”. The investigating Police officer recorded that XYDJ had been advised not to be in contact with Ms Complainant and it appeared that this was happening. Ms Complainant said she had not been in contact with XYDJ, Ms Female Friend or Mr Male Friend of late;
(f)on 12 September 2017, a representative of the counsellor from the Sexual Assault Support Service (SASS) emailed Police to advise that she had spoken to Ms Complainant that day and Ms Complainant was very upset on the phone; was finding it hard to wait; and wanted the SASS to check with Police about the investigation;[36]
[36] Ibid at pages 141 and 142.
(g)on 13 September 2017, the Police contacted Ms Complainant who said she wanted to know when the “result” from the DPP would be available. The note records that Ms Complainant became very upset and wanted to know “exactly what date she will have her result by”. The record states that Ms Complainant requested a copy of her statement because she said that if the DPP did not go forward with her matter, she had been conversing with her university in Hong Kong which may do something for her, if the DPP did not;
(h)on 14 September 2017, at the request of the Police, XYDJ voluntarily attended the Police station and allowed for a DNA sample to be taken. On this day, the Offence Report indicates that the tissues collected from the scene had gone mouldy (from vomit/food/etc) and were unable to be tested;
(i)on 4 October 2017, the investigating Police officer contacted Ms Complainant and was advised that the report was finalised and was being forwarded to the DPP. Ms Complainant stated that she was leaving Australia for Hong Kong on 29 November 2017. The note records as follows:
States that her semester concludes 30/10 and that she may travel interstate pre leaving. When asked whether she would return for any potential court case, [Ms Complainant] stated initially that she would however(sic) this would be dependent upon her circumstances at the time.
[Ms Complainant] then became emotional and wanted to know the outcome of her medical examination. Advised that it would be best to sit down and discuss when determination received back from DPP, however she became more emotional wanting to know. Advised I would seek advice and call her back.
(j)about 20 minutes later, the investigating Police officer called Ms Complainant to explain she had been in contact with the DPP and the file was under review and she would be contacted once reviewed. The records states that, “[Ms Complainant] seemed more upbeat and receptive to the information”;
(k)on 12 October 2017, Ms Complainant emailed the Police to ask whether the results of the medical examination would be released; whether she could know the result; whether the tests proved anything and what she could do at that moment;
(l)subsequently, on 18 October 2017, SASS (on behalf of Ms Complainant) followed up with the Police. The Police advised SASS that Ms Complainant had been advised that when the file was back from review, the investigating officer would sit down with Ms Complainant to explain (with an interpreter) “their determination” which would include the results of the medical examination;
(m)on 19 October 2017, Ms Complainant emailed Police to advise she would be leaving Australia on 2 November 2017 and to ask what the next step would be if she was not “in town”;
(n)on 6 November 2017, the SASS representative emailed Police to advise that she had spoken to Ms Complainant who appeared upset and was confused by “why she cannot know the results of the [medical examination] separate to the whole report” and that she had changed her flight and would be leaving Australia on 5 November 2017;[37]
(o)a further telephone enquiry was made to the DPP by Ms Complainant on 3 November 2017 wanting to know the outcome of the determination.[38] The investigating Police officer contacted Ms Complainant on 6 November 2017 to advise that she was due to attend the DPP the next day and if a determination had been made, she would arrange to meet with Ms Complainant. Ms Complainant informed Police that she was travelling to Melbourne for two weeks on 9 November 2017 and then would return to Hobart before departing for Hong Kong on 26 November 2017;
(p)on 8 November 2017 Ms Complainant met with Police to discuss the file and was advised of the results from the DNA tests. Ms Complainant said she wanted the matter to progress and would return to Tasmania for any court proceedings;
(q)on 10 November 2017, Police arranged to arrest XYDJ at the University. They arrested him and XYDJ gave the Police his passport.   At the Police station, he was “charged, processed, bailed 11/12/2017 with conditions”;
(r)on 13 November 2017, the investigating Police officer contacted Ms Complainant to let her know that Mr Less had been arrested, charged and bailed with conditions which were explained to her. The record states:
[Ms Complainant] states that in Hong Kong he would in jail. Advised that [XYDJ] had not troubled her since incident in July and Police had no reason to detain him. Discussion re innocent until proven guilty and the trial process. [Ms Complainant] wanted to know what would happen if he tried to leave Tasmania and was advised that he would be arrested for breaching his bail. Advised [Ms Complainant] also that she was in another state, no longer studying at the university and then intending to leave Tasmania, therefore [XYDJ] not a threat to her. [Ms Complainant] wanted to know if Immigration knew. Was advised that [XYDJ] would be arrested if he tried to leave Tasmania. [Ms Complainant] stated that she would forward all her contact details for Hong Kong prior to her leaving.
[Ms Complainant] wanted [XYDJ] in jail.
CONSIDERATION
[37] Ibid at page 138.
[38] Ibid at page 138.
Minister’s contentions
The Minister’s representative contends that XYDJ did not pass the character test under s 501(6) of the Act because subsection (d)(i) applied to him, namely, that there is a risk that he will engage in criminal conduct if allowed to remain in the Australia.[39]
[39] Refer Minister’s Statement of Facts, Issues and Contentions lodged with the Tribunal dated 17 July 2018.
The Minister’s representative contends that the threshold of risk required for subsection (d)(i) to apply was very low. The Minister’s representative contends that it did not require there to be a significant risk because this provision had been amended to remove the reference to “significant” from before the word “risk” by Item 11 of Schedule 1 of the Migration Amendment (Character and General Visa Cancellation) Act 2014 (2014 Amending Act). Instead, the Minister contended that it required the Tribunal to be satisfied that there was a “more than a minimal or trivial risk”, based on the Explanatory Memorandum to the 2014 Amending Act. The Tribunal accepts this contention as clearly supported by paragraph 46 of the Explanatory Memorandum which states:
The purpose of this amendment is to clarify the threshold of risk that a decision maker can accept before making a finding that a person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to significant risk.

Further, there were no physical signs of sexual assault identified upon examination by the Doctor. This supports a finding that Ms Complainant did not put up any physical struggle in response to what she alleged XYDJ was doing to her. Ms Complainant did not, in her account, indicate that she had called out for help or tried to resist XYDJ physically while he was penetrating her. Thirty seconds is a significant period of time for that action to have taken place without a corresponding physical reaction from Ms Complainant if it was not welcomed by her.
Accordingly to the allegations by Ms Complainant, the penetration was preceded by sexual advances, i.e. the touching of her breasts and by XYDJ placing his finger in her vagina, according to the allegations of Ms Complainant. Her subsequent statement that the penetration caught her by surprise is irreconcilable with her allegations of those earlier sexual advances. There was no suggestion by Ms Complainant that she was drunk to the point of unconsciousness or partial unconsciousness at any stage which might have explained her absence of any reaction if that had been the case. Instead, Ms Complainant stated in her interview with Police on 4 August 2017 that she did not say anything because I had “a lot to drink” and “was too tired”. There was no other evidence explaining why Ms Complainant did not call out or more strenuously resist XYDJ’s advances at the time he was touching her breast; placing his finger in her vagina for five seconds or when he commenced penetrating her vagina with his penis, and no explanation as to why she did not turn around to face Ms Complainant at that time, or indeed to get up out of the bed if she did not wish for those advances by XYDJ to proceed any further.
The Tribunal finds that Ms Complainant resisted XYDJ’s earlier attempts before the alleged incident to try to leave her room.
The Tribunal finds that the touching of Ms Complainant’s breast and any subsequent sexual contact by XYDJ up to the point of him attempting to penetrate her vagina with his penis, including inserting his finger in her vagina, was consensual. The Tribunal considers that Ms Complainant allowed those sexual advances to continue. The Tribunal finds that at some point prior to vaginal penetration, Ms Complainant decided that she did not want their interaction to proceed any further and she asked XYDJ what he was doing. XYDJ understood Ms Complainant’s question as an indication that she wanted him to stop and he did so. The Tribunal is satisfied that XYDJ attempted to leave Ms Complainant’s room but she sought to physically restrain him and did not permit him to do so. The Tribunal finds that Ms Complainant did this because she did not want to be left alone and that she wanted XYDJ to remain in her company in her room. The Tribunal does not accept Ms Complainant’s explanation that she physically tried to stop XYDJ from leaving after the alleged incident because she wanted him to be held responsible for his actions.
The Tribunal finds that XYDJ was only able to leave her room when Ms Complainant was diverted by her need to vomit into the rubbish bin, at which time he left.
Credibility of Ms Complainant’s allegations
The Tribunal considers that the credibility of Ms Complainant’s allegations was diminished on account of the variances in her accounts at different times about what happened on 23 July 2017.
One such variance was that in Ms Complainant’s initial reports on 23 and 24 July 2017 (to Mr RSO, the examining doctor and the Police); Ms Complainant did not mention that XYDJ forced her to have oral sex with him. However, Ms Complainant made this specific allegation 14 days later when interviewed by Police on 4 August 2017. It was a critical matter that the Tribunal considers would have been reported by her initially, had it happened. This allegation was also inconsistent with her statement to the Police that she did not know whether XYDJ had an erection during the incident. The Tribunal anticipates that Ms Complainant would have known this if XYDJ had forced her to have oral sex with him as alleged. The Tribunal does not accept that there was any attempt by XYDJ to force Ms Complainant to have oral sex with him. The Tribunal is satisfied that Ms Complainant subsequently fabricated this allegation in an attempt to bolster her claims against XYDJ.
It appeared from the documents that Ms Complainant had at one point reported that XYDJ had masturbated while he was lying next to her. In other accounts, Ms Complainant did not mention this. It appeared that Ms Complainant did not mention in her initial reports that XYDJ had placed his fingers in her vagina, however, when she was interviewed by Police 14 days later, she made this specific allegation.
There were other inconsistencies in Ms Complainant’s allegations, including her description of whether and when she told XYDJ to stop what he was doing, which can be seen by contrasting the different accounts referred to in paragraphs [155] to [159] below.
In Ms Complainant’s handwritten note written by her on 23 July 2017, she said she had fallen asleep; realised someone was touching her body and told him then to stop and held XYDJ’s hand to stop him from doing it. She said she suddenly felt a penis in her vagina and that she could not stop him “without awareness”.
In the handwritten notes made by the Doctor on 24 July 2017, the doctor reports that Ms Complainant told him that XYDJ started touching her but she declined and lay down to go to sleep; she felt him lie down next to her and then felt his penis in her vagina; she asked him to stop and he did; and the penetration lasted for 30 seconds. In the Doctor’s typed statement dated 24 July 2017, he said that Ms Complainant had told him that when she objected, XYDJ withdrew.
In the Police investigation notes dated 25 July 2017, based on a discussion with Ms Complainant, the Police report that XYDJ lay beside Ms Complainant and started to touch her body. It was reported that XYDJ penetrated Ms Complainant’s vagina from behind with his penis and that she immediately told XYDJ to stop. XYDJ continued penetrating her vagina for approximately 30 seconds and then stopped.
In the Police interview on 4 August 2017, Ms Complainant stated that after the girl had knocked on her door, she had told XYDJ not to make a noise and be quiet and then after a while, she went to sleep. Ms Complainant said that after a while she found someone was touching her and she was facing the wall at that time and she said to him “Don’t touch”. Ms Complainant said that because she had told him not to touch her, she thought he would stop and because she had lots of drinks, she was tired. Ms Complainant said that after a while she felt his penis going into her vagina. Ms Complainant did not tell the Police that she told XYDJ to stop at that point or at any time while he penetrated her vagina with his penis.
Later on in the Police interview, Ms Complainant told Police that after XYDJ placed his finger in her vagina he had asked her if he could “make love to her” to which she said she responded “no, I am not”. Ms Complainant was asked by Police why Ms Complainant did not ask XYDJ to leave and her response was that Ms Female Friend was outside the room. This is an implausible explanation. The Tribunal considers that Ms Complainant did not ask XYDJ to leave because she was a consenting party to what was taking place between her and XYDJ at that time. The Police asked Ms Complainant whether she said anything to him at the time he had placed his penis in her vagina, to which she said “No” and then she said when she “found out”, she asked him what he was doing and XYDJ told her, “Don’t worry about it”. Ms Complainant said she asked him not to leave and he “cleaned her up and put my undies on”.
In a conversation after the alleged incident between Ms Complainant, XYDJ, Ms Female Friend and Mr Male Friend, Ms Complainant confirmed that she had been to the hospital the previous night and that, “it took more than six hours”. The times recorded on the expert report states the doctor saw Ms Complainant from 2.30am until 4am (being one and half hours). The Tribunal considers that this demonstrated a propensity by Ms Complainant to embellish her account of matters. While this is not of great significance, it does wear away at the credibility of Ms Complainant, particularly in the absence of being able to question Ms Complainant about those and other discrepancies.
The Tribunal also notes that on 4 October 2017, Ms Complainant appeared to have become ambivalent about whether she would return to Australia for the criminal court proceeding – see paragraph [109(i)]. A month later on 8 November 2017, Ms Complainant told Police that she would return to Tasmania for any court proceedings – see paragraph [109(p)].
Overall, the Tribunal is not satisfied that the allegations made by Ms Complainant are credible and could be relied upon as a truthful account of what happened between her and XYDJ on 23 July 2017.
Not more than a minimal or trivial risk that XYDJ will engage in criminal conduct
Accordingly, based on the findings the Tribunal has made, put at its highest, XYDJ engaged in conduct with Ms Complainant on 23 July 2017 which can be described as consensual heavy petting with Ms Complainant for a period of time following a six-hour session of consensual heavy drinking. At a point in time when Ms Complainant realised that things had progressed beyond a point that she was comfortable with, she indicated to XYDJ that she wanted him to stop by asking him what he was doing. XYDJ understood Ms Complainant to be expressing that she did not want to progress things any further. He respected her wishes and did not proceed any further. XYDJ wiped his penis and her vagina to remove the fluid present, pulled up Ms Complainant’s underpants and tried to leave her room. Ms Complainant physically resisted his departure and they wrestled, in a non-violent way, for a short period of time until XYDJ had the chance to leave while

Ms Complainant was distracted by her need to vomit into a bin.
The Tribunal considers that Ms Complainant was having difficulty coming to terms with how far things had progressed that evening, both in terms of the excessive drinking, vomiting and the sexual interactions with XYDJ, and she was upset that at the end of the night, XYDJ left her alone. In the Offence Report, there was a statement by the investigating Police offer as follows, recorded on 4 August 2017:[46]
[Counsellor] from SASS called 0940 hours.
States that she met with [Ms Complainant] yesterday for 3 hours. Originally [Ms Complainant] wanted an interpreter then opted not to have one. [Ms Complainant] described [Ms Complainant] as highly distressed and felt that this incident had triggered other issues she had going on (strict family of which she is the only female. Females not highly valued in their culture.
[Counsellor] stated that [Ms Complainant] was really struggling as she didn’t want to be at uni and has pressure from her family).
[Counsellor] stated that [Ms Complainant] has told her she wants to make a formal statement about what happened to her as she now wants to pursue it. [Counsellor] felt that [Ms Complainant] needs the suspect to say he has done the wrong thing. [Counsellor] stated that [Ms Complainant] kept changing her mind about what she wanted to do but that when she left she was wanting to report it…
[46] Refer Exhibit “R1”, pages 147 and 148.
The Tribunal noted that she had disclosed to the medical examiner on 24 July 2017 that she was seeing a psychologist, said by Ms Complainant to be for “depression”. The Minister’s representative indicated that no enquiry had been made with Ms Complainant to obtain confirmation about Ms Complainant’s psychological condition.
The Tribunal considers that Ms Complainant’s credibility is diminished, albeit to a much lesser extent, by her subsequent approaches to XYDJ, Mr Male Friend and Ms Female Friend following the alleged incidents. The Tribunal gained an impression from the transcribed recordings of some of those interactions that Ms Complainant appeared to be taunting XYDJ about whether or not she was going to pursue the matters against him with the Police, as eventually she did. Ms Complainant sought an apology from XYDJ and once given, did not accept it. Ms Complainant repeatedly asked XYDJ and the others what she should do about it, when it must have been clear to her already what XYDJ’s answer was going to be. When XYDJ and Ms Female Friend suggested that she not pursue matters with the Police, this appeared to inflame Ms Complainant. Those interactions were difficult to make sense of.
CONCLUSION
The Tribunal acknowledges that an inference can be drawn from the charges laid against XYDJ and the criminal proceedings issued against him, that the Police and the DPP consider there is a case for XYDJ to answer with respect to his conduct toward Ms Complainant on 23 July 2017. The Tribunal also acknowledges the two offences for which XYDJ had been charged are serious and sexual in nature and for that reason, in principle, the Tribunal should place significant weight on those charges in terms of assessing whether there is a more than a minimal or trivial risk that XYDJ will engage in criminal conduct if permitted to remain in Australia.
However, the Tribunal was unable to reach a sufficient state of satisfaction that the allegations made by Ms Complainant were credible for the reasons described above. Instead, the Tribunal is satisfied that on the basis of its finding as to what had happened between XYDJ and Ms Complainant on 23 July 2017, as summarised in paragraph [163], that this conduct by XYDJ does not give rise to more than a minimal or trivial risk that XYDJ will engage in criminal conduct if allowed to remain in Australia. The Tribunal also acknowledges some positive risk factors, such as XYDJ having been granted bail for a period of time and the absence of any suggestion that he had breached the bail conditions; the University allowing XYDJ to continue to study by extending his period of enrolment after the alleged incident; and Ms Complainant for a period of time being content to study alongside XYDJ in the same class as him and to continue to communicate with him, which suggest that at the times she did so, XYDJ did not pose a threat to her.
The Tribunal is mindful that the substantive student visa upon which the application for the bridging visa was made has been cancelled and it appears that the application for review of that cancellation decision before the Migration and Refugee Division has since been withdrawn. This raises some questions about whether the basis for the bridging visa no longer exists if the matter is remitted for reconsideration. If XYDJ’s application for a bridging visa is remitted and refused, because he is no longer awaiting review by this Tribunal of a substantive visa, the DPP may need to revisit the need for it to apply for a Criminal Justice Visa for XYDJ so that he can remain in Australia pending his criminal proceeding.
At the hearing, the Tribunal asked XYDJ’s representative what XYDJ’s future intentions were with respect to remaining in Australia. After a lengthy discussion about this issue, XYDJ’s representative confirmed to the Tribunal that XYDJ’s objective of making the present application for review was, essentially, to clear his name with respect to there being a finding on the Department’s records that he did not pass the character test in the face of the present allegations made by Ms Complainant. XYDJ’s representative indicated that this was important because XYDJ may want to re-enter Australia at some point in the future.
When questioned what XYDJ’s intentions were following the conclusion of the criminal proceeding, in the event that he was acquitted, XYDJ’s representative advised that XYDJ intended to return immediately to Hong Kong. At the hearing, XYDJ confirmed, through his representative, that he had no intention of returning to Australia at a later time as “it was too expensive”.[47]
[47] While XYDJ did not give evidence at the hearing, he was present by telephone from a Prison in Tasmania, and he was aided by a Cantonese interpreter.
Upon further consideration, the Tribunal is reluctant to place any weight on the projections made about how much time XYDJ is likely to spend in Australia in the future in assessing whether there is a risk. The Tribunal has not done so because a person’s plans for the future can and do change and while XYDJ has indicated no present intention to spend time in Australia, other than as compelled to do so to stand trial in the criminal proceeding, there is no way of knowing whether XYDJ may change his mind about this in the future. Although the Tribunal gained an impression that XYDJ is unlikely to spend in Australia once the criminal proceeding has run its course, this consideration was not a turning point one way or the other in reaching a view about whether the Tribunal is satisfied there is a risk that he will engage in criminal conduct if permitted to remain in Australia.
The Tribunal has taken into account the character references provided by XYDJ’s mother, longstanding girlfriend, friend and Dr Dean. The Tribunal has not placed a great deal of weight on that evidence given the close nature of those relationships and also because it did not appear that Dr Dean had any knowledge of XYDJ’s charges. However, the Tribunal simply notes that those character references are inconsistent with the proposition that there is a risk that XYDJ will engage in criminal conduct.
Primarily, based on the Tribunal’s findings about what has happened in the past and in the absence of prior criminal convictions, the Tribunal concludes that there is not more than a minimal or trivial risk that XYDJ will engage in criminal conduct if he remains in Australia. It was not put to the Tribunal nor does the Tribunal consider that any of the other criteria as prescribed in s 501(6) of the Act apply to XYDJ that would otherwise lead to a conclusion that he did not pass the character test under that provision. Accordingly, the Tribunal concludes that XYDJ passes the character test under s 501(6) of the Act. For this reason, the discretion to refuse XYDJ’s application for a bridging visa under s 501(1) of the Act is not enlivened and the Tribunal is not required to consider the matters set out in Direction no. 65.
The Tribunal sets aside the decision made by a delegate of the Minister for Home Affairs on 13 June 2018 under s 501(1) of the Act to refuse to grant XYDJ a Bridging E (Class WE) visa on character grounds, and in substitution decides that this matter be remitted for reconsideration with a direction by this Tribunal that XYDJ passes the character test under s 501(6) under the Act.

I certify that the preceding one hundred and seventy five (175) paragraphs are a true copy of the reasons for the decision herein of Member K Parker.

....[sgd]..................................................................
Associate
Dated: 6 September 2018

Date(s) of hearing:

27 August 2018

Advocate for the Applicant: Mr Chang Liu

Solicitors for the Applicant: Cathay Lawyers

Advocate for the Respondent: Ashlee Briffa

Solicitors for the Respondent: Australian Government Solicitor

ANNEXURE A

“Audio Clip rec_592s, Translated from Cantonese to English
[Translator’s note: “M1” stands for Male 1 and “F1” female 1]
F1: Are you still in (not clear)?
M1: Hello. What?
F1: What are you doing?
M1: Me, just finished a workout in the gym.
F1: Are you alone?
M1: Yes, alone. What’s the matter? Hello?
F1: Do you remember what happened last night?
M1: I don’t remember. What’s the matter? What happened?
F1: What do you think in terms of how I should deal with it?
M1: No. You tell me what happened, then I can tell you how to deal with it.

F1: Your really don’t remember?
M1: I remember that I really wanted to go, then you just dragged me, and I said…
F1: What about things before that?
M1: Ah, let me leave, I really want to leave.
F1: What about things before that?
M1: Before that? Before that we drank alcohol. I still remember that you drank 12 mouthfuls of it.
F1: [Sigh]
M1: Well, what’s the matter? Hello.
F1: [Sigh] What happened before I let you go? Don’t you remember?
M1: You did let me go eventually? I don’t know. I remember that I freed myself and left.
F1: Why didn’t I let you go?
M1: How would I know? You just dragged me and said something like, “Don’t go. Keep me company. Keep me company.” Now here just you and me. This means…
F1: It was not like that.
M1: So it was like what? Where are you?
F1: In my room.
M1: In your room? Should I come over to see you? What’s wrong with you? Are you okay?
F1: I don’t know what I should do.
M1: What’s the matter? Tell me first.
F1: Where are you?
M1: I am, like I said before, just finished a workout in the gym. I am standing still now. [not clear] go down to my apartment. What are you up to?
F1: [Sigh]. Do you remember that you forced me to do it with you last night?
M1: What! Really? Don’t play jokes on me, master.
F1: I am not joking.
M1: What? Really? It was me who forced you? Are you sure you were not the one who forced me?
F1: How could I force you?
M1: I don’t know. I don’t know if you are joking or not now. [laughter]
F1: I didn’t hear you. Say that again.
M1: I don’t know if you are joking or not now. I still remember that at that time, well, very drunk, [not clear] drank a lot, crazy, not joking, then I wanted to leave. The think I can remember is that I returned to my room and slept without taking my clothes off.
F1: [deep breath] I didn’t let you go last night. But do you know what you did so I didn’t let you go?
M1: Are you serious? Where are you now? In your room? Can I come in?
F1: I have told you that I haven’t gotten up.
M1: You haven’t gotten up. Now is [not clear] four o’clock, master. Get TEN, no, [Mr Male Friend] and [Ms Female Friend] to come over as well, okay?
F1: No.
M1: No? What’s the matter?
F1: [Sigh] Do you remember what you said?
M1: What did I say?
F1: “You would rather be raped than let me go.”
M1: What did I say?
F1: “You would rather be raped than let me go.”
M1: What is that? Did I say that?
F1: Yes.
M1: I don’t remember this. I remember that I wanted to go, I said something like “Hello, let me go. Hello, [name], [name], just let me go!”, and then you just grabbed my hand firmly. Is this correct? Is my memory wrong?
F1: That is what happened after that.
M1: What about things happened before that? [sign]. Can you let me come in then we talk about it? Okay?
F1: Are you able to come in?
M1: It is not so good to talk about something like this in the street.
F1: Are you able to come in?
M: No, I am not. I am waiting for you to open the door. Seriously.
F1: I haven’t gotten up. How can I open the door?
M1: But it already four o’clock now. Please get up. Okay?
F1: I don’t want to get up. I don’t want to leave this room.
M1: [Sigh], um, what about getting [Ms Female Friend] to come down to open the door?
F1: She is not here.
M1: Where is she?
F1: She is out.
M1: So, what do you want now? Please tell me.
F1: I don’t know. I don’t know how to deal with it.
M1: (Sigh) Is it possible that your memory is wrong?
F1: My memory is not wrong.
M1: Because I really don’t remember.
F1: My memory is not wrong.
M1: How much did you drink? You drank with K, the King bowl. You said…
F1: I wish my memory were wrong.
M1: I only remember that I drank a lot but don’t really remember what happened next. Do you remember that I really wanted to leave?
F1: Um.
M1: One, I mean only on thought in my mind at that time.
[Sign]
F1: I wish my memory were wrong. But it is not wrong.
M1: [Sign] That makes sense. You can hold your liquor. I don’t think you were drunk. Then, tell me from the beginning to the end, starting from things happened after you drank the 12 mouthfuls. Tell me. I don’t know what I did. You tell me.
F1: Do you know [Ms Female Friend] was here last night?
M1: I don’t know. Um, she was in her room, wasn’t she? [Mr Male Friend] and I helped her into her room, then we came in, and after that…
F1: Then in the end you…
M1: After that…
F1: After that we played the last game, which I lost, and you asked [not clear].
M1: What did we play in the end? Blackjack, right?
F1: No.
M1: Texas Hold’em, right?
F1: Um.
M1: I see. Why did you drink the 12 mouthfuls?
F1: I in the end…
M1: Um, was I the dealer or were you? After that, not sure, two more mouthfuls were added, another two more, so you drank the 12 mouthfuls. Okay. No need to focus on this. So, after you drank the 12 mouthfuls…
F1: It wasn’t the end.
M1: What happened next?
F1: We were at the last game. Then [Mr Male Friend] said he would go when we finished the game.
M1: I see. What next?
F1: Then I lost the last game so I needed to drink eight mouthfuls. I said I would drink after I used the toilet. After that, the three of us went out of the room together, then [Mr Male Friend]…
M1: The three of us went out of the room together?
F1: Yes.
M1: The three of us went out of the room together? But you were the one who needed to go to the toilet.
F1: I asked you if you needed to go to the toilet. You said yes.
M1: Really?
F1: Then [Mr Male Friend] left when I went to the toilet. After I used the toiler, I went into my room, I, and I went to sleep.
M1: I don’t remember this.
F1: Then, after that, you came in and locked the door.
M1: At the time, [Ms Female Friend] bumped into me in the corridor. [Mr Male Friend] had left and then she started asking us why we were still here?
F1: Yes.
M1: What next? What next?
F1: But I wasn’t…
M1: Oh! Did [Mr Male Friend] and I help [Ms Female Friend] into her room at that time?
F1: No.
M1: What?
F1: it was after three o’clock at that moment.
M1: After three o’clock. What time was it exactly? I didn’t look at my watch. I really don’t know.
F1: It was after three o’clock.
M1: Oh
End of Document
As the phone conversation is transcribed and translated, some parts are inaudible due to audio quality, dialect or mumbling (highlighted in grey) and all names are rendered based on pronunciations given by the speakers to the best of my skill and ability and words uttered in English are written in capital letters in the translation.”[48]
[48] Reproduced from Exhibit “R1”, pages 292-297. The Tribunal notes that conversation seems to come to an abrupt end suggestive that the whole of the conversation between Ms Complainant and XYDJ may not have been recorded and/or transcribed.

[2018] AATA 3790

6 September 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Expert Evidence

Charge

Jurisdiction

Date(s) of hearing:	27 August 2018
Advocate for the Applicant:	Mr Chang Liu
Solicitors for the Applicant:	Cathay Lawyers
Advocate for the Respondent:	Ashlee Briffa
Solicitors for the Respondent:	Australian Government Solicitor