ZJYR and Minister for Home Affairs (Migration)

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 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
Section 501(1) of the Act gives the Minister the power to refuse to grant a visa if a visa applicant is unable to satisfy the Minister that he or she passes the character test. The term character test is defined in section 501(6) of the Act. Relevantly for this matter, s 501(6) provides that:
(6)For the purposes of this section, a person does not pass the character test if:
…
(c) having regard to either or both of the following:
(i)the person’s past and present criminal conduct;
(ii)the person’s past and present general conduct;
the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i)engage in criminal conduct in Australia; or
(ii)harass, molest, intimidate or stalk another person in Australia
If a person is found not to pass the character test, the discretion to refuse the visa must be considered. Under s 499(1) of the Act, the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. A person or body having those functions or powers, including the Tribunal, must comply with any relevant direction (s 499(2A) of the Act; see also Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J). Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction) is a direction made under s 499 of the Act and provides a guide for decision-makers performing functions or exercising powers under s 501 of the Act (paragraph 6.1(4) of the Direction).
Paragraph 6.1 of the Direction outlines the objectives of the Act and the Direction, stating in part:
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2)Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
…
Paragraph 6.2 of the Direction sets out General Guidance relating to the Government’s intent:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
…
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501… The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B…
The principles referred to in the General Guidance and reproduced below, constitute a framework within which decision-makers apply the considerations in Parts A, B, or C of the Direction (para 6.3):
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing a visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
In deciding whether to exercise the discretion to refuse to grant a visa, the Tribunal should have regard to the primary and other considerations in PART B of the Direction. Paragraph 11(1) of the Direction provides that the primary considerations are:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian Community.
Paragraph 12(1) provides that the other considerations that must be taken into account, where relevant, include (but are not limited to):
a)International non-refoulement obligations;
b)Impact on family members;
c)Impact on victims;
d)Impact on Australian business interests.
Paragraph 8(4) of the Direction states that primary considerations should generally be given more weight than the other considerations. Paragraph 8(5) states that one or more primary considerations may outweigh other primary considerations.
EVIDENCE
ZJYR’s criminal offending
The following table has been derived from records against ZJYR’s as outlined in a Certified Extract from the Magistrates Court of 29 January 2018.

COURT

COURT DATE

OFFENCE

COURT RESULT

Moorabbin Magistrates Court

29 January 2018

Sexual Assault

Convicted and sentenced to 3 months imprisonment and placed on sexual offenders register for 8 years (Judge concluded 6 months imprisonment was appropriate and credited accused with 3 months’ time served in immigration detention)

THE CHARACTER TEST

ZJYR does not concede that he fails to pass the character test for the purpose of s 501(1) (and as defined in s 501(6) of the Act) because:
·he does not have a substantial criminal record as outlined in Section 501(7)(c) of the Act because he has not been sentenced to a term of imprisonment of 12 months or more;
·he is not a risk to the health and safety of vulnerable members of the Australian community, particularly women;
·he has been remorseful and apologetic for all he has done and sought the sympathy of his victim and her son for the harm he caused whilst he was intoxicated;
·has taken steps to address his offending and his problem with alcohol, having enrolled in appropriate programs within the prison setting; and
·there is not a risk of reoffending particularly because of the pain and suffering his inappropriate behaviour has inflicted on his de facto wife, small children and parents who are completely dependent upon him for financial support.
The respondent’s representative contended that a person need not have a recent significant criminal conviction for them to fail the character test but the conduct in question must be sufficient to indicate a lack of enduring moral quality that would outweigh any consideration of more recent good behaviour. Additionally, the nature and seriousness of the criminal conduct is also relevant. The respondent’s representative further submitted that ZJYR’s conduct in Australia, particularly given he offended within six months of arriving in Australia on a short stay visa, was so significant that he is not someone of good character and would not pass the character test. Counsel for the respondent contended that ZJYR did not pass the character test because:
·       of the serious nature of his offending, being sexual assault,
·       his risk of reoffending, and
·       his lack of remorse or acknowledgement of the seriousness of his offending.
On 29 January 2018 at the Moorabbin Magistrates Court via video link from Yongah Hill Immigration Detention Centre ZJYR pleaded guilty to the charge of sexual assault. The victim in the incident was a 48-year-old female, the mother of his work colleague.
The sexual assault took place on 1 September 2017 when ZJYR attended a small gathering at a work colleague’s home. The gathering had been organised to celebrate his colleague completing his apprenticeship and ZJYR having completed his probationary period with his employer. Present at the gathering were ZJYR, his work colleague, his colleague’s mother and girlfriend, and four other males. During the course of the evening ZJYR and others present at the gathering consumed a large quantity of alcohol, they were socialising, drinking and dancing with everyone reportedly having a pleasant evening.
The party ended approximately at midnight when his work colleague’s girlfriend went to bed, his work colleague assisted his mother to bed as she had consumed a large quantity of alcohol. The colleague asked his other friends to go home and ZJYR stayed as he was intending to sleep over at his colleague’s home as he had done on two previous occasions.
The victim attended the Chelsea police station on 4 September 2017 and then made the following statement on 5 September 2017:
During the evening we were all just sitting in the garage, I was talking to the boys and just talking to them about how they had been. We all had some drinks and I had a lot to drink. I had a glass of wine before I joined them in the garage. I would have had about six cowboy shots but I might have had more. I had a couple of beers as well. I was a bit starry eyed but I can control my drinks quite well. Everyone had a good night. We were all just dancing and socialising.
… left the house sometime in the night maybe about 12-ish. I know they definitely were not in the house when I went to bed. I was sitting out there wondering where everyone had went. The night ended really quickly, all of a sudden. The last thing I remember was sitting in the garage. I can’t remember where (her son) was, or what (her son) or ZJYR were doing. I knew that (her son’s girlfriend) was in bed because she went to bed before the boys left.
The next thing I remember was sitting in my bedroom, taking my pants and underwear off. The door would definitely have been closed properly. I kept my clothing on the upper part of my body. I was wearing a grey T-shirt and grey hoodie over the top of that. I’ve then rolled into the bed and laid on my front. I mean I was lying on my stomach with my head to the side. I then pulled the covers over the top me. My face was facing away from the door.
I didn’t feel any of the covers coming off me, but I felt fingers on the inside of the back of my knee, which ran right up the inner part of my right leg and then touching my vagina. The way it touched my vagina, I could definitely tell that it was fingers. There was no penetration; it was just a slow sweep across. I could tell that it was skin to skin. It definitely felt like fingers. It wasn’t done in an aggressive way, but a more slow, creepy way, done by someone that I didn’t know.
It was my bedroom and I felt that it was an invasion of my privacy. It is just so creepy knowing that someone who I didn’t know, someone who wasn’t my boyfriend touching me like that. I’m sure about what I felt and what happened to me. After he has touched my vagina, I just thought, “that feels totally wrong and it clicked in my head what had happened”. Then I heard my door clicked closed. Then it just hit me, about what had happened to me.
The victim’s son ZJYR’s work colleague provided the following statement to the police on 4 September 2017:
I’m not sure how long later it was Mum came into the room and said someone has fucking touched her, and I got up and said are you sure, what do you mean. She said that she is sure.
I ran out the front door to see where ZJYR was and I couldn’t see him. I went back inside and he was lying on the couch. By this stage I just assumed it was ZJYR on the couch, because he was the only other person in the house that it could have been. I can’t remember his exact words, I said to Mum, are you sure someone has touched you. She said that she is sure. I said to ZJYR you need to leave. ZJYR left the house and I followed ZJYR outside. I confronted him and I said what did you do?
He started crying and apologising and got down on his knees and opened his arms and said “sorry Brother” he was crying. I just grabbed his arm and pulled him up and told him to keep walking. I walked down the street with him a little bit. And I got him to sit down on the curb. I asked him, “what did you do?”. Then he just started crying apologising. I asked him why are you crying. He said that he was crying because of his kids. He was in a state, proper crying and emotional. And I just told him to fuck off and go home. So he started walking down the street to… Station.

In the subpoenaed documents from the Victorian Police provided to the Tribunal, there is no signed statement from ZJYR. There is in the preliminary brief compiled by the Victorian police which contains a secondary record of the statement by ZJYR. It records that ZJYR stated:
The accused said that he arrived at (his work colleague’s home) at about 7:00pm or 8:00 pm on the Friday.
The accused said that he took a box of Corona beers to the residence and he drank beer until he was drunk. He said all the attendees except… were drinking and dancing during the night. He said that he doesn’t remember what he did. He said that he also drank 3 or 4 drinks of Bailey’s alcohol and about 12 bottles of Corona beers
The accused remembered a point during the evening when all of (his work colleague’s) friends had left the address, and he was the only person remaining.
He said that when he woke up in the morning that he felt that something was wrong, as his heart was beating very fast. He knew something was wrong but he didn’t know what. The accused said, “even, I don’t remember, my heart telling I’ve done wrong. I cannot sleep, I cannot eat because I know I’d done wrong.”
He said, “Monday, (his work colleague) confront me to talk and tell me what happened. Then my heart feel I’m guilty.”
“(His work colleague) said that I’ve done some sex with his Mother.”
The accused said he had never been invited into the victim’s bedroom.
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? No
Do you remember going along the corridor coming out of the lounge room and opening the door to the victim’s bedroom? No
Do you remember seeing anyone lying on the bed? No
Do you remember if she was face down or on her back? No
Do you remember taking her doona covers or off? No
Do you remember seeing that she was naked from the waist down? No
Do you remember touching her thigh or touching vagina? No
How long did you touch her for? I don’t remember what I did
Do you remember if she stayed asleep? No
Why did you do it? I was drunk and can’t remember
You had to stay quiet so she didn’t wake up? I can’t even remember what I have done
Do you remember getting up and leaving the room folding the blanket? No
Do you remember closing the door behind you? No
Do you remember going back into the lounge room? What I remember was I was woken up and told to go home
Do you remember being woken up? Yes I was lying on the sofa
Your evidence was you remember waking up? Yes I was lying on the sofa
That was only a couple of minutes after you were in her bedroom that you are being woken up? I don’t know
I put it to you it was only a couple of minutes after you were woken up? I don’t know
What did (your work colleague) say? To go home
What did you say? Yes I will go home
Did he say anything else? He was asking me what I’ve done and I don’t remember
And you started apologising? Don’t really know, he was saying what I’ve done, mother seemed very angry
Was she crying? She was standing in the dark couldn’t see her
Was she screaming at you? Not really
What was she saying? I can’t really say She was saying to (my work colleague) what I had done
You didn’t know what you had done? That’s right I don’t remember
So 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 remember
When you found out what you were charged with were you surprised? Yes
Did it make you remember what you had done? I honestly couldn’t remember what had happened
But 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 months
You mean if you got a sentence of more than 12 months? Yes
How 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? Yes
So you pleaded guilty to avoid a longer sentence? No I couldn’t afford a lawyer; I even approached the Philippines embassy for help
You 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 considerations
THE DISCRETION
As the Tribunal has found ZJYR’s does not pass the character test, the Tribunal must consider whether it should exercise its discretion to refuse the visa under s 501(1) of the Act. In doing so, it must have regard to the relevant primary and other considerations within the Direction. Two of the three primary considerations are relevant in this matter and are explored in greater depth below. Two of the other considerations, being impact on Australian business interests, and impact on victims also arise on the evidence before the Tribunal and are outlined below. Best interest of minor children in Australia, International non-refoulement obligations and impact on family members, as defined within the Direction; do not arise on the evidence.
Counsel for ZJYR contended at the outset that his client’s application for a Bridging Visa E to arrange departure and nothing else does not trigger a decision under s 501(1) of the Act. He argued that ZJYR had applied for the Bridging Visa E in detention whilst unrepresented as a basis for being released from detention whilst he waited the outcome of his criminal charges. The application was made for his intended departure from Australia on 9 November 2017 but this application remains unresolved. Counsel further submitted that this application to depart has not been replaced or amended but continues and as such he contended that it was obvious the review before the AAT relates to an application which is intended for him to stay in Australia, however, this was not what ZJYR applied for.
Counsel for ZJYR in his application for review to the Tribunal stated:
It is obvious that this ongoing bridging E Visa subject AAT review relates to an application which is intended for him to stay, as he can wait the outcome of the review application. In this instance employer shows willingness to get him working again if he is able to restore the bridging Visa with work permit after serves his sentence.
Therefore, looking at the file provided by the delegate there is no form for bridging E Visa application signed and initiated by the applicant other than an arrangement to depart which is available that could generate refusal under subsection 501(1) of the act. It was an only an application for Bridging E Visa is to arrange applicant’s departure and nothing else and there is nothing to trigger decision under section 501(1) of the act.
Counsel for ZJYR took the Tribunal to reg 050.212(2) of Schedule 2 of the Migration Regulations1994 which states:
An applicant meets the requirements of this subclause if the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.
Counsel submitted that there was no reason for the delegate to make the decision that they did in respect of the bridging Visa E application, as it was a request to depart Australia and that ZJYR was not made aware of the implications of applying for the Bridging E Visa. Simply put, this matter should not have been brought and ZJYR should have been allowed to remain in Australia until his substantive Visa application and criminal proceedings were resolved.
The respondent’s representative stated that the issue was irrelevant as the application for the bridging Visa E was in order, was in place for a defined period and triggered s 501 of the Act, namely s 501(6) in considering good character. Therefore, the matter before the Tribunal was in order as it was clear what the decision under review was and allowed ZJYR’s application for merits review.
The Tribunal found that it had jurisdiction to hear the matter as ZJYR had applied for a Visa which had been refused by the delegate triggering his merits review process before the Tribunal.
PRIMARY CONSIDERATIONS
Protection of the Australian Community
Paragraph 11.1 of the Direction provides that:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
Paragraph 11.1.1 of the Direction relevantly states that:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled)… are serious;
c)The sentence imposed by the courts for a crime or crimes;
d)The principle that any conduct that forms the basis for a finding that the non-citizen does not pass a subjective limb of the character test is or is not of good character under s 501(6)(c), is considered to be serious;
e)The sentence imposed by the courts for a crime or crimes;
f)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
g)The cumulative effect of repeated offending;
h)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
………..
Counsel for ZJYR submitted that numerous key issues should be considered in assessing ZJYR’s character and offending, namely:
·his offence was not serious as it did not carry a substantial sentence of 12 months or more;
·that this was his first and only offence;
·he had pleaded guilty at the earliest possible convenience, had shown remorse and was apologetic to his victims; and
·continues his spiritual devotion and regular involvement in church activities.
The respondent’s representative argued that ZJYR’s conduct in Australia for the short period of time he had been here, his serious offending and his risk of reoffending were so significant that all countervailing considerations are outweighed. Furthermore, the nature and seriousness of ZJYR’s offending was demonstrated by:
·his offences being sexual assault committed against a vulnerable member of the community, namely a woman;
·the courts imposing a custodial sentence of a period of imprisonment is a last resort in the sentencing hierarchy and the imposition of such a sentence highlights the grave seriousness of this offence;
·his lack of remorse for the impact of his victim and continuation in pleading intoxication as a mitigating factor; and
·his lack of understanding of the seriousness of his offending and his lack of understanding of consent.
The Tribunal finds that the nature of ZJYR’s sexual assault against a member of the community just six months after his arrival in Australia on a short stay visa was serious. This was given greater weight as ZJYR had breached the trust of his friend by committing an act of a sexual nature in a home into which he had been invited.
Risk to the Australian community
Paragraph 11.1.2 of the Direction provides that:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.
(2)In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(3)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence from independent and authoritative sources on the likelihood of the non-citizen reoffending; and
ii.evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
iii.the duration of the intended stay in Australia.
(4)Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.
Counsel for ZJYR argued strongly that his client was at no risk of reoffending as he had no prior convictions in Australia or overseas for any criminal offence and had shown complete remorse for his actions, having pleaded guilty to the crime. Furthermore, it was submitted that he accepts the judgement of the Court, has undertaken an alcohol program whilst in prison to address his issues with substance abuse and that the implication of reoffending and losing his Visa was so significant he would not risk the trauma this would cause his wife, children and parents who are solely reliant on his income for all financial support.
ZJYR told the Tribunal that he would never do this again as he wants to continue helping his family as they are currently fending for themselves, which is causing great stress. Further, he has been working overseas for many years to support them as he wants to give his kids a better future. He has joined a drug and alcohol program to learn more about his substance abuse, the psychologists he has seen does not think he is a bad person. Indeed, ZJYR advised the Tribunal his psychologist said he does not believe he even needs the drug and alcohol sessions. He came to Australia for a better future for his family and borrowed money to come to Australia, which he is unable to even pay back and is now in serious financial trouble. Indeed, he even got his work colleague involved in this incident to actually sell his tools so that he can afford to send money home whilst he is in prison. He continues to receive spiritual guidance from within the Catholic community and regularly attends church and is being supported by the broader Filipino community. According to the applicant, these factors demonstrated he was not a bad person and was at no risk of reoffending.
The respondent’s representative further argued that ZJYR was at serious risk of reoffending which was demonstrated by the Magistrate’s decision to place him on the Sex Offenders Register with ongoing reporting obligations to the police. The Tribunal was referred to section 11(3) of the Sex Offenders Registration Act:
The court may only make an order under this section if, after taking into account any matter that he considers appropriate, it is satisfied, beyond reasonable doubt, that person poses a risk to the sexual safety of one or more persons or of the community.
It was contended that ZJYR’s lack of remorse and understanding of his actions indicated that he was a risk to vulnerable members of the community, namely women. Furthermore, it was submitted that ZJYR’s lack of recollection of the incident was implausible and did not support the contention he had not intended committing a sexual assault as he must have quietly entered the victim’s room to commit the crime and that he had known what he had done otherwise why had he been seeking forgiveness from his work colleague immediately after the incident.
ZJYR told the Tribunal he had no recollection of the incident and that the first thing he recalls of the evening was being woken by his work colleague on the couch and told to go home. He stated that he had started apologising as he could not recall what had happened in the night and believed that his actions while drunk had been offensive (such as throwing up), but had no knowledge of the offence until advised by the police several days later.

As the Direction explicitly acknowledges, the Australian community has a low tolerance of any criminal or other serious conduct by visa applicants particularly those holding a limited stay visa. Whilst the Australian community expects that people will be given a chance to redeem themselves and that prison offers a chance for rehabilitation, they have a low tolerance for individuals who commit acts of sexual assault against members of our community.
Whilst the Tribunal was persuaded that ZJYR posed a minimal risk of re-offending given this is his only offence, his strong work record, appearance at the Tribunal as a credible witness, his remorse and significant sense of obligation to his family, the imposition of the obligations of reporting under the sex offenders register indicates the Court was persuaded that ZJYR was a risk to the sexual safety of members of the community.
The Tribunal therefore having considered the nature and seriousness of ZJYR’s conduct, coupled with an assessment of the risk he poses to the Australian community, finds that the primary consideration of protecting the Australian community weighs in favour of refusing his Bridging visa application.
Expectations of the Australian community
Paragraph 11.3 of the Direction states:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because of the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Minister strongly contended that the Australian community would expect ZJYR not to be given the right to remain in Australia.
ZJYR’s counsel argued that his client is entitled to the Bridging Visa for which he has applied. Numerous decisions by both the Tribunal and the Federal Court have observed that members of the community, apprised of the facts in specific cases, would not expect automatic refusal of all visas because of criminal convictions.
In this regard, the Tribunal considers the view expressed by Block DP in regard to the term expectations of the Australian community (as it appeared in an earlier Ministerial Direction) in Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458 at [7]:
It assumes (incorrectly) that there is an Australian community which thinks as one. The supporters of One Nation would have one view as regards immigration, and there is of course a very large diametrically opposed body of opinion in Australia. I construe this reference as being correctly made to middle-of-the-road reasonable members of the Australian community who do not hold extreme views one way or another. And I think that there is a further limiting factor and that is that one must import into the Australian community, knowledge of the evidence before me. …
In a more recent decision of Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999, Forgie DP noted that determining the expectations of the Australian community is ultimately a matter for judgment, the facts of which that judgment is made must be made on the basis of facts established by the evidence (at [72]). In assessing the expectations of the Australian community, regard should also be had to the principles in paragraph 6.3 of the Direction as they reflect community values and standards (para 6.2(1)).
Counsel for the respondent submitted that the Australian community would expect that ZJYR’s Bridging Visa be refused as people given the privilege of being in Australia on a temporary Visa need to obey the law. Particularly where there is a breach of the community trust in the nature of a serious sexual offence, there is little tolerance in the Australian community of such individuals. In ZYJYR’s case this is being compounded by his short time in Australia before he committed the offence and accordingly this primary consideration weighs heavily against him.
The respondent’s representative took the Tribunal to Re Ayache and Minister for Immigration and Border Protection (Migration) [2018] AATA 310 and submitted that the Tribunal should have regard to the expectations referred in the direction espoused by the government rather than any objective expectation put forward by an applicant. Forgie DP in the decision states:
1. In view of these principles, it seems to me that I should be guided by the words of paragraph 11.3 in the immediate context of Direction No. 65 and in the broader context of s 501(1). When that is done, there can be no inevitable outcome. That said, how are the expectations of the Australian community to be evaluated? This was addressed by the Tribunal in Re Visa Cancellation Applicant and Minister for Immigration and Citizenship:
“ Relevant community values will not depend on transient or fashionable thinking. They will not be found in the publications of vocal minorities or the fulminations of the media, motivated by short term considerations and the improvement of circulation or ratings. They will not necessarily reflect the views of individual politicians. Community standards will be found in more permanent values. They will be informed in part by legislation of the parliaments, and especially legislation applicable to the decision-making. Formal statements by ministers will be relevant, but not when they are not speaking officially or when their remarks are not carefully considered or do not appear to reflect ‘a broad consensus of opinion’ (Mason, Courts and Public Opinion at 36). Decisions will also be informed by the decision-maker’s belief based on experience. Evidence will rarely be of any practical assistance.
It will often be impossible for decision-makers to articulate the basis for their determination of what community standards require in a particular case, because the conclusion will not be based on evidence. Nevertheless, decision-makers are members of the community and exposed to the processes of its instrumentalities. They may not always be able to empathise with particular individuals or groups, because of lack of exposure to local considerations, but they are exposed to the short term and long term thinking and dissemination of ideas which determine the way society changes and develops.
Drawing on these considerations, even without detailed analysis of them, in reasons for decision, will lead to better formed judgments which more truly reflect community standards. An assessment expressed to be guided by community standards or values, without more, will still be likely to lead to better decision-making than if no attempt at such an assessment is made. Expressing an opinion that current community standards require a particular outcome will be likely to represent a better decision than one couched in personal terms. Such an approach will sometimes lend itself to reasons. Where there are no reasons, however, the decision and the basis for it will still be better expressed than with reasons couched in personal belief.”
1. Although I respectfully suggest that it is implicit in the passage, I think that it should be expressly stated that the task described by the Tribunal is carried out in the context of, in this case, making a decision under s 501(1) of the Migration Act. Therefore, s 501(1) becomes the starting point for identifying those of the Australian community’s expectations that will be relevant. It is the starting point because a decision-maker is under an obligation first to determine the limits of a discretionary power by reference to the subject-matter, scope and purpose of the legislation granting the power to make that discretionary decision. In other words:
“... the law obliges the Minister, in the particular case, to reach a decision on the merits of that case by reference only to considerations that are relevant to the grant of power and compatibly with the exercise of that power with respect to an individual. ...”
1. The purpose of the Migration Act is to regulate those who may come to and those who may remain in Australia and the circumstances in which they may do so. There are various types of visa, some of which permit a person to remain on a temporary basis and others which permit a person to remain permanently. Parliament has decided that those who have committed offences attracting certain penalties may be refused a visa or have a visa cancelled and, in some instances, must be refused a visa or have a visa cancelled. Against that background, the Minister has developed considerations in the Direction that are consistent with the Migration Act’s subject-matter, scope and purpose.
1. Consistently with the Migration Act, the heart of the Direction is the protection of the Australian community and its institutions. That is reflected in the considerations set out by the Minister for decision-makers exercising one of the three types of discretion dealt with more fully in Parts A, B and C. It is also reflected in paragraph 6 of the Direction when it sets out the Objectives, General Guidance and Principles all of which underpin the exercise of the particular discretions that are the subject of Parts A, B and C. It is to this paragraph that regard is to be had in determining the matters that underpin and inform paragraph 11.3 when it addresses the expectations of the Australian community in the context of considering whether to exercise the power to refuse a visa. In particular, it underpins and informs when it may be appropriate to revoke the mandatory visa cancellation or when the Australian community would expect that the person should not hold a visa.
Consistent with the Direction, there is an expectation in the Australian community that non-citizens will respect Australia’s laws. In this regard the Tribunal notes the framework principles within the Direction highlight the Australian community’s low tolerance for visa applicants who engage in criminal conduct, particularly those who have been participating in, and contributing to, the Australian community for only a short period of time. In ZJYR’s case, he was in Australia for approximately 6 months before he committed the offence for which he subsequently pleaded guilty.
Accordingly, the Tribunal finds that the expectations of the Australian community weigh in favour of refusing of ZJYR’s visa application.
Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
“Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.”
Counsel for ZJYR was adamant that his employer had expressed a willingness to re-employ him should he be granted the bridging Visa and that there was significant impact upon the business should the Visa be refused, as the employer will need to find a replacement employee and the company had already gone to a great deal of time and money in securing ZJYR employment under a 457 Visa. Additionally, the impact upon ZJYR will be significant as he will be without a job. A reference from his sponsoring employer dated 8 December 2017 states:
ZJYR is a hard-working, outstanding and talented employee who on a daily basis goes above and beyond his ability in carrying out the duties entrusted to him. He has continuously exceeded the performance standards for his position as a motor mechanic/service technician in the company.
The respondent’s representative doubted ZJYR’s employer would consider rehiring him if they are aware of the nature of the offence and his custodial sentence.
Counsel for ZJYR advised the hearing on numerous occasions that the employer was fully aware of the charges and the outcome of the criminal proceedings and still intended to reengage ZJYR should his Visa be granted.
The respondent’s representative contended that the issue of the impact upon business should be given minimal weight as ZJYR had only been employed for a relative short period of six months and there was nothing to suggest that he could not be easily replaced in the Australian job market.
The Tribunal notes the positive reference from ZJYR’s employer and accepts that he would have a job to return to if his Bridging Visa with work rights was granted. However there is no evidence before the Tribunal which clearly indicates that Australian business interests will be affected by refusal of his visa application. Therefore, the Tribunal places no weight on the impact on Australian business interests in deciding whether to refuse ZJYR’s visa application.
Impact on victims
Paragraph 14.4(1) of the Direction states:
“Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behavior, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.”
The respondent’s representative contended that the impact upon the victim should be given considerable weight, especially in light of her statement to police which indicated that the offence had had enormous impact upon her, particularly that she expressed her feelings of being violated and stating that she has been unable to sleep properly since being assaulted and that what happened to her wasn’t right and that she wanted to make sure he didn’t do it to anybody else.
Counsel for ZJYR again reiterated that his client was extremely sorry and repentant for any hurt he had caused the victim and that his remorse has been demonstrated through his religious devotion.
ZJYR advised the Tribunal he had apologised to the victim’s son and had asked that he advised his mother of how sorry he was for any harm he had caused. Given that the applicant has an association with the victim’s son there is a possibility that the victim would be aware of his continuing presence in Australia and may be impacted.
OTHER CONSIDERATIONS
There are no non-refoulement obligations that need to be observed in this situation and neither the applicant nor the respondent sought to pursue this argument as usually, international non-refoulement obligations arise in a situation where a person may be returned to a country where they have reason to fear persecution on account of race, religion, nationality, membership of a particular social group or political opinion. This fact scenario does not arise in this case.
Whilst counsel for ZJYR did outline the significant impacts of both the best interests of minor children and family members should ZJYR be returned to the Philippines, these individuals all reside outside Australia and are therefore not considered by the Direction.
Whilst the Tribunal found that ZJYR’s children and extended family would be greatly impacted by the refusal of his bridging Visa as they would suffer significant financial deprivation, this could not be considered by the Tribunal as they reside outside Australia and therefore did not weight in his favour.
CONCLUSION
Fundamentally, the Tribunal was cognizant at all times of the principles set out in the Direction and concurred that: Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
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.

I certify that the preceding 79(seventy-nine) paragraphs are a true copy of the reasons for the decision herein of

[sgd]......................................................................
Dated: 11 April 2018

Dates of hearing: 3 April 2018

Advocate for the Applicant: Mr Charlie Bulos

Solicitors for the Applicant: IM & EM Lawyers and Consultants

Advocate for the Respondent: Ms Melinda Jackson

Solicitors for the Respondent: Australian Government Solicitor

[2018] AATA 856

11 April 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Natural Justice

COURT	COURT DATE	OFFENCE	COURT RESULT
Moorabbin Magistrates Court	29 January 2018	Sexual Assault	Convicted and sentenced to 3 months imprisonment and placed on sexual offenders register for 8 years (Judge concluded 6 months imprisonment was appropriate and credited accused with 3 months’ time served in immigration detention)

Dates of hearing:	3 April 2018
Advocate for the Applicant:	Mr Charlie Bulos
Solicitors for the Applicant:	IM & EM Lawyers and Consultants
Advocate for the Respondent:	Ms Melinda Jackson
Solicitors for the Respondent:	Australian Government Solicitor