YNTH and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 89
•11 February 2025
YNTH and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 89 (11 February 2025)
Applicant/s: YNTH
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/7570
Tribunal:Senior Member K Raif
Place:Sydney
Date:11 February 2025
Decision:The Tribunal sets aside the decision of the delegate of the Respondent dated 17 September 2024 to refuse to grant the Applicant a FA Subclass 600 Visitor visa and remits the matter to the Respondent for reconsideration with a direction that the Visa Applicant passes the character test for the purposes of s 501(1) of that Act.
Statement made on 11 February 2025 at 1:57pm
CATCHWORDS
MIGRATION – REFUSAL TO GRANT VISITOR (CLASS FA) (SUBCLASS 600) VISA – APPLICANT CITIZEN OF NEPAL – Whether visa applicant passes the character test – whether there is a ‘risk’ the applicant ‘would engage in criminal conduct in Australia’ – applicant arrested and charged with online solicitation of a minor in foreign jurisdiction – no conviction – absence of criminal history over the past 14 years – risk of engaging in criminal conduct is not more than remote or fanciful, at its highest – applicant passes the character test – no need to consider discretionary considerations – decision under review is set aside and remitted
LEGISLATION
CASES
EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536
BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46
SECONDARY MATERIALS
Direction No. 110 Visa refusal and Cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA (‘Direction 110’)
STATEMENT OF REASONS
INTRODUCTION
This is an application for review of a decision of the delegate of the Minister for Immigration and Multicultural Affairs (the respondent) made on 17 September 2024 to refuse to grant a Class FA Subclass 600 Visitor visa to the visa applicant.[1] The application for review is made by the spouse of the visa applicant, who resides in Australia and is a permanent resident of Australia (the review applicant).[2]
[1] T-Documents (‘T’) T3-T5, p.18-23.
[2] T1, p.1-9.
The visa applicant was born in January 1990 and presently resides in Nepal.[3] In 2009, while residing in the USA, the visa applicant was arrested and charged with an offence.[4] An indictment was issued by a Grand Jury.[5] The visa applicant was released from custody upon the payment of a bond and later removed from the US for visa violations.[6] A bench arrest warrant was issued in relation to the visa applicant.[7]
[3] T22, p.104, Applicant’s Supporting Documents filed 19 November 2024, p.93.
[4] T6, p.29; T7, p.32-33; T15, p.48.
[5] T14, p.47.
[6] T11, p.42-44.
[7] T6, p.25-30.
In February 2024 the visa applicant made the application for the Visitor visa.[8] On 7 August 2024, the visa applicant was issued with the Notice of Intention to Consider Refusal (NOIR) and he provided his response.[9] In September 2024 a decision was made to refuse to grant the Visitor visa to the visa applicant. The delegate determined that the visa applicant did not pass the character test and exercised the discretion to refuse to grant the visa.[10] The review applicant seeks review of the delegate’s decision.
[8] T39, p.155-173.
[9] T18, p.95-98; T22, p.103-117.
[10] T3-T5, p.18-23.
The review applicant and the visa applicant appeared before the Tribunal on 10 and 11 February 2025. The Tribunal also received oral evidence from several witnesses, including the visa applicant’s father, uncle, his friends and Dr Pant.
The issues before the Tribunal are:
· whether the visa applicant passes the character test as required by section 501 of the Act and, if not
· whether the Tribunal should exercise its discretion to refuse to grant the visa applicant the visa.
LEGISLATIVE FRAMEWORK
The ‘character test’ is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(d) provides that a person does not pass the character test if:
in the event the person would be allowed to enter or to remain in Australia, there is a risk that the person would
(i) engage in criminal conduct in Australia…
Subparagraph 501(6)(d)(i) of the Act requires an assessment about whether there is a ‘risk’ that the applicant ‘would engage in criminal conduct in Australia’. That assessment involves a consideration of past conduct, usually previous criminal offending, as well as conduct after any such offending, which will often involve issues around remorse and rehabilitation for past offending. This is the nature of the ‘probabilistic assessment’ to which Perry J referred in EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536 at [182].
In BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94 the Court held paragraph 501(6)(d) has been cast by the legislature in wide terms, with low thresholds; that a person does not pass the character test if found to meet a threshold as low as ‘a risk’ of representing a ‘danger to the Australian community’; and that paragraph 501(6)(d) of the Act does not refer to any particular level of risk, be it high, low, remote or negligible, rather it is an evaluative exercise for the Minister to conduct as to whether any such risk exists, and if so, what the consequences might be: per Bromwich J (White J agreeing) at [324], [325], [337]-[338].
Paragraph 8.2.2(2)(c) relevantly provides that:
where consideration is being given to whether to refuse to grant a visa to the non-citizen — whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The Respondent refers to the reasoning in Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46 at [14] to state that the Tribunal is not limited to the consideration of conduct during the period of validity of the visa but is permitted to look at a longer period. The Tribunal acknowledged that the court determined that “there is nothing in the text or context of s. 501(6)(d) to suggest a repository is precluded or prohibited from considering a person’s conduct over a period of time longer than the visa period”. However, at [11]-[12], the Court also suggests that:
Operating as a precondition to the wide discretionary power to refuse or cancel a visa, I see little difficulty in construing the chapeau to subs (6)(d)… as directed primarily to what a person may do while present in Australia on the visa that is under consideration. It is clear in my opinion that this is the period of time to which the subsection is primarily directed.
The Respondent submits that the wording of the Direction, together with the reasoning in Singh, indicates that the primary consideration for the Tribunal is the risk of engaging in criminal conduct by reference to the duration of the visa and the period when the applicant is onshore, although it is open for the Tribunal to consider the period beyond the period of the visa. The Respondent also acknowledges that the Tribunal would not err by limiting its consideration to the duration of the visa.
Should the Applicant not satisfy the character test, the discretion to refuse the visa under subsection 501(1) of the Act is enlivened.
On 7 June 2024, Direction No. 110 Visa refusal and Cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA (‘Direction 110’) was signed, coming into effect on 21 June 2024. Direction 110 is binding on the Tribunal in performing its functions or exercising powers under section 501 of the Act. Direction 110 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Summary of evidence before the Tribunal
The character test is defined in subsection 501(6) of the Act. As noted above, paragraph 501(6)(d) relevantly states that a person does not pass the character test if there is a risk the person would engage in criminal conduct in Australia if allowed to enter or to remain in Australia.
Information before the Tribunal indicates that in October 2009 the visa applicant was arrested and charged with online solicitation with a minor. The applicant had paid a bond. The visa applicant was removed from the US to Nepal and failed to appear in court, resulting in a bench arrest warrant being issued.
The nature of the indictment is set out in the Respondent’s Statement of Facts Issues and Contentions and a number of documents that are before the Tribunal. The following summary is adopted from the Respondent’s SOFIC:
Count one
“On or about October 20, 2009…[the applicant being] a person who was 17 years of age or older, with the intent to arouse or gratify the sexual desire of the defendant intentionally communicate over the internet in a sexually explicit manner…by sending messages about having sexual intercourse with Gary Marquis, an individual whom the defendant believed to be younger than 14 years of age; andCount two
“On or about October 23, 2009…[the applicant being] a person who was 17 years of age or older, with the intent to arouse or gratify the sexual desire of said defendant, intentionally communicate over the internet in a sexually explicit manner…by sending messages about having sexual intercourse with Tony Yocha, an individual whom the defendant believed to be younger than 14 years of age.”The Respondent submits that it is open for the Tribunal to determine that the offending conduct did take place, even though there was no finding of guilt, and that there remains a risk that the visa applicant will offend in Australia. The Respondent submits that some of the discretionary considerations are neutral, others, such as the links to Australia and the best interests of children are in favour of the applicant while others, such as the protection of the community and the expectations of the community, weigh in favour of exercising the discretion.
The Respondent submits that although the visa applicant had not been convicted, an indictment was issued, which required at least 9 or 12 jurors to be satisfied on the evidence before them that certain standard was met. The Respondent submits that although indictment is not a finding of guilt, it shows that the Grand Jury was satisfied on the presented evidence and information that there was a basis to bring the charge against the applicant. The Respondent notes that the visa applicant had admitted to communicating with the person online, he admitted that there were messages of a sexual nature and that he could not determine the age of the person he was communicating with. The fact that the visa applicant did not actively search for that person does not detract from the seriousness of the conduct. The Respondent submits that the Tribunal should be satisfied that the events that the applicant was charged and indicted for did take place. The Respondent submits that if that finding is made, then it is open for the Tribunal to determine that there is a risk that the visa applicant will engage in criminal conduct in Australia and such risk is not remote or fanciful.
The review applicant submits that the visa applicant had simply wanted to meet someone, and age was not a factor. The review applicant states that she had reviewed her husband’s media accounts and has not observed any inappropriate communications, nor any inappropriate behaviour towards children.
The review applicant submits that the visa applicant has been residing in Nepal, India and had visited other countries with no criminal history in any country. The review applicant submits that it is not reasonable to infer from the arrest warrant that the visa applicant would present a risk to the Australian community. The review applicant states that if the visa applicant’s crime was ‘heinous’, he would have been prevented from leaving the US and would have been placed on an Interpol arrest warrant. It is stated that the visa applicant wished to ‘fight for his innocence’ but was removed from the US against his wishes due to the deportation order. The review applicant notes the visa applicant’s absence of criminal history over the past 14 years, indicates that he does not pose a risk to Australia. The review applicant submits that Nepal has laws in relation to the protection of minors and the visa applicant has not been convicted of any crimes. (There are before the Tribunal the visa applicant’s criminal reports from Nepal). The review applicant submits that the arrest warrant is of little or no significance as it was issued due to the visa applicant’s failure to appear for the court hearing and there was no evidence that the visa applicant engaged in sexual intercourse with a minor. The review applicant states that the visa applicant had no control over remaining in the US or being removed. The review applicant also addressed the discretionary considerations.
In oral evidence, the review applicant submitted that her husband passes the character test. The review applicant states that the case in the US took place over 10 years ago and her husband had not been convicted of any offence. His imprisonment was due to the non-attendance at university and the arrest warrant that was issued in 2010 was because her husband could not attend the criminal hearing and they were unaware of that warrant until recently. The review applicant states that they wanted to fight the case but did not get a chance because her husband was deported and there was no point issuing the arrest warrant after the deportation. The review applicant refers to the hardship she experienced as a single mother with two young children. The review applicant states that 14 years have passed and there have been no other convictions or issues. The review applicant states that she would never have married the visa applicant if the allegations were true. The review applicant told the Tribunal that in late 2023 the visa applicant had made an application for the Subclass 309 visa which was taken to be refused when the present decision was made.[11]
[11] T31, p.134.
The review applicant spoke to the Tribunal about her husband feeling remorse due to being unable to support his family and support her when she was giving birth. The visa applicant also spoke about the hardship of being separated from his family and states that it is unfair to be punished for a single mistake he made a long time ago. The visa applicant states that he wants an opportunity to travel back and forth and spend time with his family.
The visa applicant spoke about the circumstances surrounding the charges, stating that he believed he was communicating with a person of his age. The visa applicant spoke about his dealings with the criminal system, spending three months in county jail and being deported due to the visa issues. The visa applicant admits there was ‘an issue’ at the time but states it was a long time ago.
The review applicant provided in her submission to the delegate a number of documents. These include evidence of her children’s birth certificates, tax record, other personal documents, character references and statements of support, as well as a reference from the visa applicant’s employer. Additional character references have been provided to the Tribunal, as well as statements from the visa applicant and his father outlining the circumstances that occurred in 2009. Some of the witnesses gave oral evidence to the Tribunal attesting to the visa applicant’s good character. Mr K has expressed the view that there is no risk of the applicant engaging in criminal conduct. Mr BA told the Tribunal that if given the chance to defend the charges, he believes the visa applicant would have been cleared of the charges. Mr BA stated that since the incident, the visa applicant has changed a lot, has matured and is more responsible.
The review applicant presented a number of documents relating to the proceedings in the US. The visa applicant’s father, Mr KG explained in oral evidence the circumstances surrounding the charges and removal from the US, questioning why his son was deported and not given the opportunity to defend the charges. Mr KG stated that his son made a ‘rash’ decision and as a teenager, he was not thinking of the consequences, but he has since changed. Mr KG spoke about his son’s present circumstances, working for the family business and past study.
The review applicant presented a psychological report by Dr Pant, dated 14 August 2024, stating that the visa applicant has been receiving psychological intervention for adjustment issue.[12] In oral evidence the visa applicant stated that he sees Dr Pant from time to time and their discussions are focussed on the separation from the family, but they also discussed the events in the US. With respect to his rehabilitation, the visa applicant states that the incident occurred over 15 years ago. Since that time, he has completed his education, travelled and started a family and the visa applicant states he has ‘changed for the better’. The visa applicant states that he has his own children and appreciates that an adult messaging a child is wrong.
[12] T29, p.131.
In oral evidence, Dr Pant told the Tribunal that he recalled meeting the visa applicant 5-6 times or more in the last couple of years to discuss the visa applicant’s concerns about being separated from his family. This was the primary focus of their discussions. Separation from the family caused anxiety and sadness for the visa applicant and he received Cognitive Behaviour Therapy (CBT) to manage the anxiety. Dr Pant stated that he had ‘no issues’ in relation to the visa applicant engaging with minors, having interrogated that topic multiple times with the visa applicant during sessions. Dr Pant states that he had conducted detailed questioning, communications and discussions in multiple sessions and determined the visa applicant showed no interest in minors. Dr Pant states that the visa applicant has no guilt in his mind as he believes he has not done anything wrong. Dr Pant described the CBT intervention and the nature of treatment provided.
Consideration of evidence
The Respondent submits that the applicant’s description of what had occurred should not be accepted and that, on the balance of probabilities, the Tribunal should accept that offences of which the applicant was charged, did occur.
The Tribunal does not accept the Respondent’s submission that it is necessary (nor, desirable) for the Tribunal to positively determine whether the applicant did engage in the offending conduct. It is not the role of this Tribunal to determine criminal liability for an offence. The Tribunal is not privy to all the information that would be relevant to an assessment whether an offence has been committed. The Tribunal has no access to the information that would be available to a court making such a determination. It is not for the Tribunal to usurp the powers of a criminal investigation and a determination by a criminal court.
The Respondent submits that although the visa applicant was not convicted of an offence and had not engaged in any other criminal conduct since 2009, if it is accepted that the visa applicant did engage in conduct for which he was charged in 2009, then the Tribunal should accept the applicant is at risk of engaging in similar conduct in Australia. The basis for such a proposition is unclear. Even if the visa applicant did engage in the offending conduct in 2009 (and the Tribunal is not prepared to make that assumption) that does not offer (in the Tribunal’s view) a reasonable basis for a conclusion that the visa applicant is at risk of engaging in similar conduct in Australia. It is equally logical to find that, given the seemingly undisputed fact that the applicant had not engaged in any offending conduct since 2009, and that there had been significant changes in his life, including marriage and the births of two children, there is little or no risk of reoffending. The absence of any offending and lack of engagement in any criminal or anti-social conduct since 2009 (even if the Tribunal were to find that the applicant did engage in the conduct in question) and the singular nature of the 2009 incident offer a strong basis for a finding that the visa applicant will not engage in criminal conduct in Australia.
This is consistent with the evidence of Dr Pant who had formed the view, following detailed examination, that the visa applicant has no interest in minors. There is no suggesting that the visa applicant might engage in any other form of criminal conduct in Australia.
The Respondent notes that the applicant repeatedly denied culpability and has taken no accountability for his conduct and there is no evidence that he had engaged in any formal rehabilitation. The Tribunal accepts that is the case (noting Dr Pant’s evidence that the counselling was primarily due the visa applicant’s depression as a result of family separation), but is of the view that these concerns would be more apposite in circumstances where the visa applicant had been convicted of an offence. In the absence of a conviction, and when the applicant has not had the opportunity to enter a plea, it cannot be considered to be adverse to the visa applicant that he denies culpability. Neither would it be reasonable, in the Tribunal’s view, to expect the visa applicant to engage in formal rehabilitation programs in circumstances where the offending conduct – and thus the need for rehabilitation - had not been established.
In her submission to the Tribunal the review applicant claims that formal rehabilitation programs for such offences are not available in Nepal, but she states that the visa applicant has received informal counselling in India. The review applicant notes that a therapist has confirmed that the visa applicant has no underlying conditions, and a further assessment can be arranged. The Tribunal has given due weight to Dr Pant’s evidence.
The Tribunal has considered the visa applicant’s circumstances. It is not in dispute that the visa applicant has never been convicted of any offences. The delegate determined that he may commit an offence in Australia on the basis that he had been charged with an offence in the US in 2009 but that offence has not been proven. While it is still open to the Tribunal to have regard to the charges in the absence of a conviction, the Tribunal must do so with caution, particularly as the visa applicant has not had the opportunity to defend the charges in a court of law.
In this case, there is no pattern of behaviour that would suggest the visa applicant has criminogenic tendencies, there is no evidence that the visa applicant had shown a disregard for the law or general unwillingness or inability to abide by the law. There is no evidence that he had otherwise engaged in any criminal, violent or anti-social conduct. There is no suggestion of repeated problematic behaviour. Other than the 2009 incident, which has not been proven in a court of law, there is absolutely nothing in the visa applicant’s conduct that would suggest that he is likely to engage in criminal conduct in Australia.
The Tribunal also gives some weight to the fact that the applicant is seeking a Visitor visa for three months. It is not a significant period. While it is open to the Tribunal to consider the risk of offending beyond the period of visa validity, the primary consideration is the assessment of risk during the visa period and in this case, it is a fairly short period. In Singh the court noted that there is a possibility of seeking other visas or remaining in Australia beyond the period of visa validity, but such risks can be minimised by the imposition of the ‘no further stay’ condition on the Visitor visa. In the Tribunal’s view, the risk of the applicant committing an offence in the short period of his intended stay in Australia is remote, at best.
The evidence before the Tribunal is that the visa applicant had also made an application for a Spouse visa in Subclass 309.[13] That application was taken to be refused once the application for the Visitor visa was refused. However, should the visa applicant’s eligibility for a permanent visa be assessed in the future, a further assessment of his character, in light of the longer period of proposed stay, can be considered in the context of that application. The Respondent acknowledges that the Tribunal’s findings in the present matter will not be binding in relation to any character assessment to be undertaken in the context of the Partner visa application.
[13] T31, p.134.
The Tribunal has formed the view that the risk of engaging in criminal conduct in Australia is not more than remote or fanciful, at its highest. In the Tribunal’s view, there is no probative and persuasive evidence to find that any higher level of risk exists.
The Tribunal does not consider that, in the event the visa applicant would be allowed to enter or to remain in Australia, there is a risk that the visa applicant would engage in criminal conduct in Australia. The Tribunal finds that the visa applicant passes the character test
There is evidence before the Tribunal concerning the discretionary considerations, including an amount of evidence relating to the protection and expectation of the community, as well as the best interests of the two children. Given the Tribunal’s finding that the visa applicant passes the character test, the Tribunal has determined that there is no need to consider the discretionary considerations.
DECISION
The Tribunal sets aside the decision of the delegate of the Respondent dated 17 September 2024 to refuse to grant the Applicant a FA Subclass 600 Visitor visa and remits the matter to the Respondent for reconsideration with a direction that the Visa Applicant passes the character test for the purposes of s 501(1) of that Act.
Date(s) of hearing: 10 and 11 February 2025 Applicant: Self-Represented (Via Audio-Visual link) Solicitors for the Respondent: A Wilford, Sparke Helmore (Via Audio-Visual link)
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