ZJYR and Minister for Home Affairs (Migration) - [2018] AATA 856

ZJYR and Minister for Home Affairs (Migration) [2018] AATA 856 (11 April 2018)
Division:GENERAL DIVISION
File Number(s): 2018/0319
Re:ZJYR
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Ms Anna Burke, Member
Date:11 April 2018
Place:Melbourne

The Tribunal affirms the decision of the respondent dated 15 January 2018 to refuse the applicant’s application for a Bridging E (Class WE) visa under s 501(1) of the Migration Act1958.
[sgd]........................................................................
Ms Anna Burke, Member
MIGRATION – visa refusal – applicant is a citizen of the Philippines – applicant applied for a Bridging Visa –– applicant does not pass character test in s 501(6) of the Migration Act 1958 – applicant not of good character on account of criminal conduct – whether discretion to refuse visa should be exercised – applicant presents unacceptable risk of re-offending –– decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Migration Act 1958
Cases
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Re Ayache and Minister for Immigration and Border Protection (Migration) [2018] AATA 310
Secondary Materials
Minister for Immigration and Border Protection (Cth), Ministerial Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a Visa under s 501 CA, 22 December 2014
REASONS FOR DECISION
Ms Anna Burke, Member
11 April 2018
INTRODUCTION

On 4 December 2017 a delegate of the Minister for Immigration and Border Protection (the Minister) issued a notice of intention to consider refusal to grant ZJYR a Bridging E (Class WE) under s 501(1) of the Migration Act 1958 (the Act). On 7 and 9 December 2017 ZJYR provided a response to the notice.
On 15 January 2018 a delegate of the Minister made a decision to refuse ZJYR’s application for a bridging visa under s 501(1) of the Act. Notice of this decision was provided to ZJYR on 17 January 2018. The delegate found that ZJYR did not pass the character test, as set out in s 501(6) of the Act. In particular, the delegate found that ZJYR failed to meet s 501(6)(d)(i) of the Act, as he represented a risk of harm to the Australian community which is unacceptable and could not be satisfied that the risk of reoffending was negligible. The delegate found that there were no sufficient countervailing considerations in ZJYR’s case to warrant the Australian community accepting any level of risk and decided to exercise the discretion to refuse the visa. In accordance with s 501(1) of the Act, the consequence of this decision was that ZJYR’s application for a Bridging E (Class WE) Visa was refused.
On 23 January 2018 the Administrative Appeals Tribunal (the Tribunal) received an application from ZJYR lodged under s 500(1)(b) of the Act seeking review of the decision to refuse to grant his visa. At…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ZJYR and Minister for Home Affairs (Migration)

Details

AGLC: ZJYR and Minister for Home Affairs (Migration) [2018] AATA 856
Case: [2018] AATA 856
Decision Date: 11 April 2018

CaseChat Overview and Summary

This matter concerned an application for review by ZJYR, a national of the Philippines, of the decision to refuse his Bridging E visa. ZJYR had entered Australia on a Temporary Work (Skilled) Visa and was later charged with sexual assault. Following this charge, the Minister issued a notice of intention to consider cancellation of ZJYR's visa under section 116 of the Act, on the basis that his presence in Australia posed a risk to the safety of the Australian community. Subsequently, a delegate of the Minister decided to cancel ZJYR's visa under s 116(1)(e)(i) of the Act. ZJYR then applied for a bridging visa, which was refused, leading to this application for review before the Administrative Appeals Tribunal.

The Tribunal was required to determine two central issues: firstly, whether ZJYR passed the character test as defined in section 501(6) of the Migration Act 1958 (Cth); and secondly, if he did not pass the character test, whether the Tribunal should exercise its discretion to not refuse the visa. In considering the character test, the Tribunal had regard to ZJYR's conviction for sexual assault, the sentence imposed, and the registration under the Sex Offenders Registration Act. The Tribunal also considered whether ZJYR posed a risk of engaging in criminal conduct, harassing, molesting, intimidating or stalking another person, or representing a danger to the Australian community or a segment thereof, particularly women.

The Tribunal reasoned that ZJYR's conviction for sexual assault, occurring within six months of his arrival in Australia, meant he did not pass the character test under section 501(6)(c)(i) of the Act. The Tribunal was satisfied that ZJYR's conduct indicated he failed the character test. Furthermore, the Tribunal considered the risk ZJYR might pose to the Australian community, particularly women, in light of the serious offence committed. The Tribunal noted that ZJYR had not demonstrated a commitment to Australia's laws and institutions, having committed a serious offence shortly after his arrival.

Consequently, the Tribunal affirmed the delegate of the Minister's decision to refuse ZJYR's application for a Bridging E visa under section 501(1) of the Migration Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On 23 January 2018 the Administrative Appeals Tribunal (the Tribunal) received an application from ZJYR lodged under s 500(1)(b) of the Act seeking review of the decision to refuse to grant his visa. At the time, ZJYR was being held at Yongah Hill Immigration Detention Centre. He was later convicted and transferred to Middleton Prison in Castlemaine, Victoria and appeared in person at the Tribunal. At the hearing of his application on 3 April 2018 ZJYR was represented by Mr Charlie Bulos of IM & EM Lawyers and Consultants Pty Ltd. Ms Melinda Jackson, solicitor advocate from Australian Government Solicitor, appeared for the Minister. The Minister lodged a set of paginated G-Documents and the applicant provided a number of written statements, but as these were lodged outside of the statutory timeframe they could not be considered by the Tribunal. BACKGROUND ZJYR is a 31 year old Philippian national who came to Australia on 24 February 2017 as the holder of a UC subclass 457 Temporary Work (Skilled) Visa. ZJYR was granted a four year temporary skilled visa to work as a qualified motor mechanic/service technician at a large Volkswagen dealership in Melbourne. Prior to working in Australia, ZJYR had worked as a mechanic for nine years in Brunei. ZJYR supports his de facto wife, two children and parents who continue to reside in the Philippines. On 6 September 2017 ZJYR was charged with sexual assault and granted bail with conditions including that he must attend the Moorabbin Magistrates Court on 13 December 2017. On 4 October 2017 a delegate of the Minister issued a notice of intention to consider cancellation of ZJYR’s Visa under section 116 of the Act, on the basis that his presence in Australia may be a risk to the safety of a segment of the Australian community. On 6 October 2017 ZJYR provided a response to the intention to cancel his visa. On 1 November 2017 a delegate of the Minister made a decision to cancel ZJYR’s Visa under s 116(1)(e)(i) on the grounds he had been charged with alleged sexual assault of a female victim and whilst his guilt or innocence was yet to be determined the delegate found the fact the Victorian Police had found reason to charge ZJYR with the offence indicated his presence in Australia may pose a risk to the safety of the Australian community, particularly to a segment of the Australian community, that being women. ZJYR subsequently made an application for review of the decision to cancel his visa to the Migration and Refugee Division of this Tribunal, of which the decision is still pending. On 2 November 2017 ZJYR was placed into immigration detention and applied for a bridging visa E – subclass 050 with the declared intention of departing Australia on 9 November 2017.ISSUES There are two central issues before the Tribunal in this application for review:(a)does ZJYR pass the character test in s 501(6) of the Act?; and(b)if ZJYR does not pass the character test, should the Tribunal exercise its discretion to not refuse the visa?LEGISLATIVE FRAMEWORK

Evidence

Evidence Before The Court

In ZJYR’s response to the notice of intention to consider refusal of his bridging Visa E under s 501 of the Act and in his application for review of the decision refusing his bridging Visa to the AAT, he reiterates that he has no substantial criminal record and that he had no history of criminal activity of any kind prior to entering Australia. Further, ZJYR submitted that he had no intention of committing a crime, indeed he had no knowledge of the crime due to his intoxication on the evening. He stated that when he was appraised of what he had done he was remorseful and that he is of no risk of reoffending because of the undue hardship on his family in the Philippines.ORAL EVIDENCE At the hearing the representative for the Minister took ZJYR through a long series of questions in respect of the sexual assault incident:Do you remember thinking I should go to be or anything like that? NoDo you remember going along the corridor coming out of the lounge room and opening the door to the victim’s bedroom? NoDo you remember seeing anyone lying on the bed? NoDo you remember if she was face down or on her back? NoDo you remember taking her doona covers or off? NoDo you remember seeing that she was naked from the waist down? NoDo you remember touching her thigh or touching vagina? NoHow long did you touch her for? I don’t remember what I didDo you remember if she stayed asleep? NoWhy did you do it? I was drunk and can’t rememberYou had to stay quiet so she didn’t wake up? I can’t even remember what I have doneDo you remember getting up and leaving the room folding the blanket? NoDo you remember closing the door behind you? NoDo you remember going back into the lounge room? What I remember was I was woken up and told to go homeDo you remember being woken up? Yes I was lying on the sofaYour evidence was you remember waking up? Yes I was lying on the sofaThat was only a couple of minutes after you were in her bedroom that you are being woken up? I don’t knowI put it to you it was only a couple of minutes after you were woken up? I don’t knowWhat did (your work colleague) say? To go homeWhat did you say? Yes I will go homeDid he say anything else? He was asking me what I’ve done and I don’t rememberAnd you started apologising? Don’t really know, he was saying what I’ve done, mother seemed very angryWas she crying? She was standing in the dark couldn’t see herWas she screaming at you? Not reallyWhat was she saying? I can’t really say She was saying to (my work colleague) what I had doneYou didn’t know what you had done? That’s right I don’t rememberSo why were you apologising? Because I knew I was drunk and I don’t know what I’ve done. The representative of the Minister then asked ZJYR about his subsequent charge and guilty plea to sexual assault:Your evidence is you don’t remember sexually assaulting the victim? I couldn’t remember, I could feel something was wrong but wasn’t sure what it was.You are so drunk you needed help getting to the station but you were able to get into the victim’s room, open and close the door quietly? I can’t rememberWhen you found out what you were charged with were you surprised? YesDid it make you remember what you had done? I honestly couldn’t remember what had happenedBut you pleaded guilty to the offence? I knew I couldn’t fight the case as I couldn’t I afford a lawyer and I wasn’t sure what is going to happen after 12 monthsYou mean if you got a sentence of more than 12 months? YesHow did you know if you had a sense of more than 12 months your Visa would be cancelled? According to my employer Visa could be cancelled and I searched the Internet.When did you search the Internet? I approached a priest to After you were charged? YesSo you pleaded guilty to avoid a longer sentence? No I couldn’t afford a lawyer; I even approached the Philippines embassy for helpYou were convicted of sexual assault? Yes CONSIDERATION

Decision

Reasons for decision

ZJYR has not demonstrated a commitment to Australia, its values, laws and institutions, having committed a serious offence within six months of his arrival in this country on a short stay work visa. The Australian community would not look favourably on ZJYR’s behavior given the breach of trust he has exhibited when his original working visa provided him the opportunity to obtain meaningful work in Australia, which has provided significant financial benefit to his extended family in the Philippines.DECISION For the reasons I have given, I affirm the decision of the delegate of the Minister dated 15 January 2018 to refuse ZJYR’s application for a Bridging E (Class WE) under s 501(1) of the Migration Act.

Ratio Decidendi

Legal Principle Established

The representative of the Minister then asked ZJYR about his subsequent charge and guilty plea to sexual assault:Your evidence is you don’t remember sexually assaulting the victim? I couldn’t remember, I could feel something was wrong but wasn’t sure what it was.You are so drunk you needed help getting to the station but you were able to get into the victim’s room, open and close the door quietly? I can’t rememberWhen you found out what you were charged with were you surprised? YesDid it make you remember what you had done? I honestly couldn’t remember what had happenedBut you pleaded guilty to the offence? I knew I couldn’t fight the case as I couldn’t I afford a lawyer and I wasn’t sure what is going to happen after 12 monthsYou mean if you got a sentence of more than 12 months? YesHow did you know if you had a sense of more than 12 months your Visa would be cancelled? According to my employer Visa could be cancelled and I searched the Internet.When did you search the Internet? I approached a priest to After you were charged? YesSo you pleaded guilty to avoid a longer sentence? No I couldn’t afford a lawyer; I even approached the Philippines embassy for helpYou were convicted of sexual assault? Yes CONSIDERATION Given the applicant’s conviction for sexual assault just six months after his arrival in Australia and the sentence imposed by the Magistrate, particularly the discretionary decision to register him under the Sex Offenders Registration Act for a period of eight years, the Tribunal cannot be satisfied that the applicant is a person of good character, under s 501(6)(c). On the basis of the entirety of the evidence, the Tribunal is satisfied that the applicant fails the character test pursuant to s 501(6)(c)(i). As it has found that ZJYR does not pass the character test, the Tribunal must next consider s 501(6)(d) of the Act and must have regard to whether in the event that ZJYR were allowed to remain in Australia, there is a risk that he would either (i) engage in criminal conduct in Australia or (ii) harass, molest, intimidate or stalk another person in Australia, or (v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, or in any other way, that community or segment, (particularly women). The Minister issued Direction 65 under s 499 of the Act which sets out the considerations to be applied by the decision maker when exercising powers under s 501CA of the Act. The General Principle of Direction 65 states that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision makers must take into account the primary and other considerations relevant to the individual case. Generally, primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerationsTHE DISCRETION