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PHNR and Minister for Immigration and Border Protection (Migration) [2017] AATA 1742 (10 October 2017)

Last Updated: 19 October 2017

PHNR and Minister for Immigration and Border Protection (Migration) [2017] AATA 1742 (10 October 2017)

Division: GENERAL DIVISION

File Number(s): 2017/4316

Re: PHNR

APPLICANT

And Minister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal: Senior Member A Poljak

Date: 10 October 2017

Place: Sydney

The decision under review is set aside.

The Tribunal decides in substitution that the applicant does not fail the character test under section 501(6)(d)(i) and therefore the discretion under s 501(1) of the Migration Act 1958 (Cth), to refuse the applicant’s application for a Temporary Protection (Class XD) visa, should not be exercised.

....................[sgd]................................................

Senior Member A Poljak

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – visa refusal – application for protection visa –character test – risk of engaging in criminal conduct – decision set aside and substituted

LEGISLATION

Migration Act 1958 (Cth) s 501(1), (6)

CASES

Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65

Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277; (1999) 56 ALD 321

Labi and Minister for Immigration and Border Protection (Migration) [2016] AATA 316

Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385, (2000) 106 FCR 313

Tham v Minister for Immigration and Citizenship and Another [2012] FCA 234, (2012) 204 FCR 612

SECONDARY MATERIALS

Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Senior Member A Poljak


10 October 2017

1. On 18 July 2017, a delegate of the respondent, the Minister for Immigration and Border Protection (“Minister”) refused to grant the applicant a Temporary Protection (Class XD) visa (“Visa”) pursuant to section 501(1) of the Migration Act 1958 (Cth) (“Act”). This is the decision under review in these proceedings.
2. The issues before the Tribunal are whether the applicant meets the character test as defined in s 501(6)(d) of the Act, and if he does not, whether the discretion in s 501(1) of the Act should be exercised to refuse to grant the applicant a Visa.

BACKGROUND

3. The applicant was born in Al Sayedeh in Baghdad, Iraq. He is currently 30 years old.
4. In 2012, the applicant converted to Christianity. He fled Iraq for fear of harm at the hands of his family, the Sunni and Shia militias and the Iraqi government on account of his Christian religion.
5. The applicant entered Australia as an unauthorised maritime arrival on 24 December 2012. He was subsequently transferred to Nauru for regional processing and on 17 October 2015, the applicant was transferred to Australia. He is currently in Villawood Immigration Detention Centre.

DIRECTION 65

6. Pursuant to s 499(1) of the Act, the Minister has given written directions as to the exercise of the power to review a decision made under s 501(1). Subsection 499(2A) provides that these directions must be complied with. The relevant direction is Direction No.65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA which commenced on 23 December 2014 (“Direction 65”).
7. Direction 65 provides that a decision is to be approached within the framework of the principles in paragraph 6.3 (“the Principles”), which are as follows:

(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 the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(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 a non-citizen’s visa should be cancelled, or their visa application refused.

8. Informed by the Principles, the Tribunal must take into account the primary considerations in Part B of the Direction, in deciding whether to refuse a non-citizen’s Visa. 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.
9. In deciding whether to refuse a Visa, the Tribunal must take into account other considerations insofar as they relevant. In this case, the only other relevant consideration is international non-refoulement obligations.

CHARACTER TEST

10. The term character test is discussed at section 501(6) of the Act and refers to a range of character matters that the Minister or their delegate may have regard to in deciding whether to grant, refuse or cancel a visa. A person is automatically deemed not to pass the character test in a number of circumstances, including where they have a substantial criminal record within the meaning of section 501(7). It is accepted by the Minister that the applicant does not have a substantial criminal record. Instead, the Minister contends that the applicant’s visa application should be refused on the basis of section 501(6)(d)(i), which states a person does not pass the character test if:

(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; ...

11. Guidance for the application of this section can be found at paragraph 6 of Section 2 of Annex A to Direction No. 65. It relevantly provides that a person does not pass the character test if, in the event the person were allowed to enter or remain in Australia, there is a risk that the person would engage in the conduct contemplated by s 501(6)(d) of the Act. This provision is enlivened if there is evidence suggesting that there is more than a minimal or remote chance that if allowed to remain in Australia, the person would engage in the type of conduct contemplated by that section. A finding that a person has previously engaged in conduct specified in s 501(6)(d) of the Act in the past is not sufficient for a decision-maker to find that the person has engaged in conduct contemplated by the section. It is necessary to identify a risk that the person would engage in such conduct.
12. In determining whether a person passes the character test, I note the comments of Lander J in the Federal Court’s decision in Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65 at [105]:

The definition of a person passing the character test in s 501(6) shows that Parliament intended that persons who have been convicted of relatively serious crime; associate with criminals; have a history including an immediate history of criminal conduct or general conduct indicating bad character; are a significant risk of engaging in criminal conduct or undesirable conduct, should not be permitted to travel to or remain in Australia. Shortly put, persons who have committed or are likely to commit criminal or other like conduct should not be permitted to travel to or remain in Australia. Because the purpose is to exclude those persons, the matters that are relevant to the exercise of the Minister’s discretion will include any fact or circumstance which would suggest that a person of otherwise bad character (as it is defined in the Act) should be allowed to travel to or remain in Australia.

13. I further note the Federal Court’s elaboration of what might constitute good character in Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277; (1999) 56 ALD 321 at 324:

The concept of "good character" in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the Applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an Applicant for a short-term entry permit may not justify the conclusion that he is "not of good character" within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry ...

Criminal Conduct

14. On 19 July 2013, the applicant participated in an organised demonstration with other detainees at the Regional Processing Centre in Nauru. The applicant was charged with unlawful assembly and 1 count of riot. He was discharged of the 1 count of riot but entered a plea of guilty to the charge of unlawful assembly. The applicant appealed the sentence and on 7 August 2015, the Supreme Court of Nauru quashed the sentence and ordered the applicant to serve 165 hours of community service and no conviction was recorded.
15. On 23 October 2014, the applicant was convicted in the District Court of Nauru of 2 counts of indecent assault, for which he was sentenced to 3 months’ and 6 months’ imprisonment, respectively. These terms were served consecutively for a total of 9 months’ imprisonment.
16. In these proceedings, the applicant sought to traverse the evidence and challenge the facts essential to the indecent assault convictions. In particular, the applicant sought to challenge an essential finding to the convictions, namely the provision of consent.
17. In Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385, (2000) 106 FCR 313, Branson J relevantly concluded:

[43] ... although there is no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based ... policy considerations suggest that the legislature intended that the Act, to the extent that it is concerned with the control in the public interest of the presence of non-citizens in Australia who have been convicted of criminal offences, should be administered in a way which:

(a) recognises that the criminal justice system is pre-eminently suited to the determination of the guilt of persons charged with criminal offences ...; and
(b) limits inconsistency between decisions of the criminal courts and those of tribunals ...

As a consequence, in my view, the Act should be construed as requiring a decision maker under s 200 of the Act to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted (see Spackman at 635). This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing.

18. While the applicant seeks to challenge the facts essential to his criminal convictions, I am not entitled to reach or express a view that the applicant was wrongly convicted; see Ali at [44]. I am, however, entitled to make an assessment of the nature and seriousness of the conduct behind the conviction in determining the risk of recidivism. See Tham v Minister for Immigration and Citizenship and Another [2012] FCA 234, (2012) 204 FCR 612 at [41]- [43] and Ali at [45].
19. I have considered the sentencing remarks of Resident Magistrate Emma Garo, from the District Court of Nauru pertaining to the applicant’s indecent assault convictions (“sentencing remarks”). At [11] - [13] Magistrate Garo said:

The factors that would militate against reduction of sentence is that, the defendant indecently assaulted the victim, who at the first opportunity made it clear to the defendant that his advances were not welcomed.
This was on the 13^th March 2014, when he asked to kiss her and she told him no and in the process of struggling with him, to get away, he fondled her breasts. The victim’s evidence on this is that she felt uncomfortable and violated. In effect, the indecent acts were committed in clear disregard of her right to refuse consent and in disregard of her dignity as a woman and an individual. The offence being committed in the presence of other women who were also working is also a clear disregard of the fact that any such act would be witnessed and acted upon. Yes the acts of indecency may be fleeting as suggested by Mr Rabuku. Be that as it may, they were so committed with a clear disregard for the dignity of the victim and her right to refuse consent, which she had clearly communicated to the defendant. Not only did she refuse consent by saying no, the evidence is that, she had to struggle with him to push him off and her friend came to her aid...
On the argument that, the acts of indecency of the 15^th March 2014, on the part of the defendant were as a result of the mistake of consent, because the complainant never lodged a complaint in relation to the acts of indecency on the 13^th March 2014, that argument again cannot stand...

20. The applicant gave oral evidence at hearing and provided two written statements, one of which addresses the circumstances leading up and surrounding his indecent assault convictions. In regards to the indecent assault charges, the applicant entered a plea of not guilty, and notwithstanding his conviction, continues to deny that he tried to kiss the victim and touched her breasts without her consent.
21. By way of background, the applicant said in his written statement dated 31 August 2017, that in the first part of 2014, he developed a friendship with the victim, a local Nauruan lady (the “victim”). He said that he socialised with the victim and that they “would often play ping pong together and generally hang out”. The applicant said that the victim was a very sociable and funny woman and they would “laugh and joke together”. This evidence was not challenged.
22. The applicant’s evidence before the Tribunal is that he believed there was a mutual attraction between the victim and himself and that the victim welcomed physical contact with him. He said that the victim and he liked each other but it just happened “at the wrong time and wrong place”.
23. The applicant submits that the victim likely reported the incidents to the police because she wasn’t allowed to form a relationship with a detainee and because she didn’t want to lose her job. I place no weight on this submission as the applicant is unable to give evidence about the victim’s intentions.
24. The sentencing remarks note that the applicant apologised to the victim through his lawyer in Court. At paragraph [39] of his written statement dated 31 August 2017, the applicant says that he was advised by his lawyer to apologise to the victim to obtain a lesser sentence but the applicant said that he also apologised because he felt sorry for the victim and believed that the whole situation had gotten out of hand. He felt that the victim was also suffering and as a result wrote a statement of apology. This evidence, in my mind, shows that although the applicant maintains there was consent, he is remorseful that the victim suffered as a result of the incident.
25. I have also considered the applicant’s Agreed Statement of Facts on Plea of Guilty for the conviction of unlawful assembly (“agreed facts”). Relevantly, the agreed facts record:

“The offender was part of a crowd of approximately 20 transferees that were throwing rocks, star pickets and chairs at the Nauru Riot Police who were standing at the main gate to the RPC facing in the crowd. The offender was observed to be one of the group of people who were throwing rocks. The rocks struck the shields and protective equipment of the Police...
There is no evidence to suggest that the offender either caused any injuries or was present when these injuries occurred...
There is no evidence that the offender was involved in the lighting of any fire...”

26. I accept what DP McCabe said in Labi and Minister for Immigration and Border Protection (Migration) [2016] AATA 316 at [31] that there is always at least some risk that any visa holder might do any of the things referred to in s 501(6)(d); but in order for me to be satisfied that there is a risk that the applicant will engage in criminal conduct in Australia, there needs to be evidence suggesting that there is more than a minimal or remote chance that this will occur.
27. In assessing the level of risk of engaging in criminal conduct in Australia I have taken into consideration that the applicant’s convictions of indecent assault and unlawful assembly occurred while he was in detention on Nauru. The applicant was in very difficult circumstances and regularly sought assistance from counsellors, psychologists and psychiatrists whilst in detention.
28. The two incidents giving rise to the indecent assault convictions occurred one day apart and involved the same victim. Having regard to the facts and circumstances, I am able to make an assessment of the nature and seriousness of the conduct. Accordingly, I find that the seriousness of the offending is at the lower end of the scale. It involved two instances, occurring in a short space of time, where the applicant attempted to kiss a Nauruan woman and touched her breast. I am not satisfied on the evidence that this demonstrates a propensity to engage in such conduct. Despite maintaining that there was consent, I am not convinced that this translates to a risk of recidivism, particularly when having regard to the circumstances. He has no prior convictions and has not engaged in similar conduct since that time.
29. In regards to unlawful assembly, no conviction was recorded for this offence. Despite stating in the agreed facts that he was one of the detainees throwing rocks, the applicant did not cause any injury or destroy any property. When assessing the applicant’s risk of reoffending, I have taken into consideration the length of his detention on Nauru and its uncertain open-ended nature. The applicant arrived on Christmas Island, Australia seeking asylum in December 2012. He said that he chose to come to Australia because he heard that it was a free country which respected human rights and freedom of religion. On 11 January 2013, the applicant was transferred to Nauru and remained there for 34 months. He says in his written statement at [46] that he participated in the protests with the other asylum seekers against the delay in processing their asylum claims.
30. Without attempting to excuse the applicant’s conduct, it is necessary to consider the conduct in context, particularly when looking at the unique circumstances surrounding the offence for the purpose of considering the risk of recidivism. While the applicant maintains that he was involved in “peaceful protesting”, I am not satisfied that this demonstrates a lack of insight or remorse. The evidence is that he was one of a large group of detainees and although admits to throwing rocks, did not injure any person or damage property.
31. Most compelling, there is no indication that the applicant has engaged in conduct of this nature prior to or since that time; despite the fact that he continues to be detained, he has not reoffended in the years since the offence of unlawful assembly occurred, some 4 years ago.
32. In arriving at my decision I have also considered the letters in support provided by Ms Anna Buch, Ms Dorothy McDonald, Ms Sally Thompson, Ms Isobel Blomfield and Ms Michelle Bui. The letters are consistent and speak of the applicant’s respectful nature and positive attributes. However, none of the letters acknowledge the applicant’s offending behaviour in the past; accordingly I give them limited weight.
33. For all of the above reasons, I find that if the applicant were to remain in Australia, there is not a risk that he would engage in criminal conduct in Australia. Accordingly, he does not fail the character test under s 501(6)(d)(i) of the Act. It follows that it is not necessary for me to consider whether the discretion in s 501(1) of the Act should be exercised to refuse to grant the applicant a Visa.

DECISION

34. The decision under review is set aside.
35. The Tribunal decides in substitution that the applicant does not fail the character test under section 501(6)(d)(i) and therefore the discretion under s 501(1) of the Migration Act 1958 (Cth), to refuse the applicant’s application for a Temporary Protection (Class XD) visa, should not be exercised.

........................[sgd]................................................
Associate

Dated: 10 October 2017