SNTC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 47 (19 January 2022)

Last Updated: 19 January 2022

SNTC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 47 (19 January 2022)

Division: GENERAL DIVISION

File Number: 2021/8074

Re: SNTC

APPLICANT

And Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal: R Cameron, Senior Member

Date: 19 January 2022

Place: Melbourne

The Tribunal sets aside the reviewable decision and remits the matter to the respondent for reconsideration of the applicant’s bridging visa application with the direction that the applicant passes the character test within the meaning of section 501(6) of the Migration Act 1958 (Cth).

.....[sgd]...................................................................
R Cameron, Senior Member

Catchwords

MIGRATION – bridging visa application refusal – Class WE subclass 050 Bridging Visa – applicant non-citizen born in Cambodia – whether the applicant passes the character test – contents of Direction 90 – risk of re-offending – family law matters – intervention order – bail granted - minimal or trivial likelihood of risk – decision set aside and remitted

Legislation

Bail Act 1977 (Vic)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Secondary Materials

Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) 46

REASONS FOR DECISION

R Cameron, Senior Member


19 January 2022

INTRODUCTION

1. The applicant seeks review of a decision made on 27 October 2021 by a delegate of the respondent refusing his application for a Bridging E (Class WE) visa (Subclass 050) (“the visa”) under section 501(1) of the Migration Act 1958 (Cth) (“the Act”) (“the reviewable decision”).

EVIDENCE BEFORE THE TRIBUNAL

2. There was both documentary and oral evidence before the Tribunal.

3. The applicant (who was self-represented) gave oral evidence.

4. The documentary evidence consisted of the following:

(a) the G documents;^[1]
(b) the supplementary G documents; and
(c) a “Personal Statement” made by the applicant on 2 January 2022.
(d) the respondent also filed a Statement of Facts, Issues and Contentions.

THE REGULATORY REGIME

5. Section 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

6. Relevantly for this application under section 501(6)(d)(i) of the Act a person does not pass the character test if, in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would engage in criminal conduct in Australia.

7. The concept of “risk” for the purposes of section 501(6)(d)(i) of the Act involves a comparatively low threshold. As noted by the respondent in its submissions, section 501(6)(d)(i) as previously drafted required there to be a “significant risk” of future criminal conduct. The word “significant” was deleted under the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth). The explanatory memorandum accompanying that Bill recorded as follows:

“The purpose of this amendment is to clarify the threshold of risk that a decision maker can accept before finding that the person does not pass the character test in relation to section 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision maker to prove that it amounts to a significant risk”.
Therefore, it is only required that the risk is more than a minimal or trivial likelihood.

8. If the Tribunal is satisfied that a party fails the character test, it must then consider whether the visa application should be refused. In undertaking this task, the decisionmaker must apply the provisions of Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“Direction 90”).

ISSUES FOR DETERMINATION BY THE TRIBUNAL

9. There are two issues for determination by the Tribunal;

(a) the first issue is whether the applicant passes the character test; and
(b) the second issue is, if it is found that the applicant does not pass the character test, whether the Tribunal should exercise its discretion to refuse to grant the visa.

BACKGROUND FACTS

10. The applicant is a 42 year old citizen of Cambodia. He arrived in Australia on 11 February 2013. He worked as a Buddhist monk at the Dhamaram Buddhist Temple for approximately three years. During that time, he held two temporary work visas.

11. In approximately 2016 the applicant ceased being a Buddhist monk. Shortly thereafter he commenced a relationship with an Australian citizen, who will be referred to as “NJ”. They were married on 12 March 2017.

12. On 5 April 2017, the applicant made an application for a partner visa. He was granted a Bridging A (Class WA) (Subclass 010) visa on 6 April 2017 (“the bridging visa”) which was to expire when a decision was made on the applicant’s partner visa application.

13. The applicant’s wife gave birth to their son on 22 October 2018. It should also be noted that NJ has a daughter from a previous relationship who is 10 years of age.

14. On 27 August 2020, the applicant was arrested and interviewed by Victoria Police. He was charged with four counts of sexual penetration of a stepchild and four counts of sexual assault of a child under 16.^[2] These crimes are alleged to have been committed against his stepdaughter. He was remanded in custody following his arrest.

15. In the Magistrates’ Court at Dandenong on 8 September 2020, a Family Violence Interim Intervention Order was made against the applicant. Amongst other things, the Interim Intervention Order prevented the applicant from contacting or communicating with a protected person, going to, or remaining within, 200 metres of the matrimonial home that he shared with his wife and family, and going to or remaining within 200 metres of any other place where a protected person lived, worked or attend school. He was prohibited from approaching or remaining within five metres of a protected person. The protected persons were the applicant’s wife, son and his stepdaughter.

16. The bridging visa was cancelled by a delegate of the respondent on 10 September 2020 under section 116(1)(e)(ii) of the Act.

17. The applicant was granted bail on his own undertaking on 10 December 2020. The grant of bail was subject to several conditions including that he report to a police station three days a week, reside at a specified address, surrender all valid passports, not contact witnesses for the prosecution other than the informant, and was subject to a curfew between 10pm and 4am. He was also obliged to comply with the terms of the Intervention Order made on 8 September 2020.

18. On 15 December 2020, the applicant made a further application for a bridging visa in association with his pending partner visa application.

19. On 18 December 2020, a delegate of the respondent refused to grant the bridging visa on the basis that the applicant did not satisfy clause 050.0223 of schedule 2 to the Migration Regulations 1994 (Cth). The delegate was not satisfied that the applicant would comply with condition 8564, which required that he not engage in criminal behaviour.

20. On 12 January 2021, the Migration and Refugee Division of this Tribunal set aside the decision made on 18 December 2020 and remitted the application to the Department with a direction that, amongst other things, the applicant satisfied clause 050.223.

21. On 31 March 2021, a Family Violence Final Intervention Order was made by the Magistrates’ Court by consent, without admission of the allegations contained in the application, in substantially the same terms as the interim order.

22. On 27 October 2021, a delegate of the respondent made the reviewable decision. On 1 November 2021, the applicant made his application to this Tribunal for review.

23. The criminal proceedings remain on foot in the County Court and are next listed for mention on 31 January 2022.

EVIDENCE CONCERNING THE APPLICANT’S ALLEGED OFFENDING

24. There were several sources of evidence provided to the Tribunal concerning the applicant’s alleged offending. In the Supplementary G documents there were transcripts of tape-recorded records of interview with the applicant’s stepdaughter and himself. There were also the contents of his Personal Statement. Additionally, and very briefly in cross examination, the applicant gave some oral evidence concerning the allegations made against him.

25. The applicant’s stepdaughter in a videotaped statement gave her account of what the applicant allegedly did.^[3]

26. At 8:40am on a date between 1 August 2020 and 26 August 2020, the applicant laid down next to his stepdaughter, put his hand inside her underwear and “started to touch her rude part”.^[4] His stepdaughter asked that the applicant “stop” and he did not do so. She again asked that he “stop”, and he did so. She then ran to the living room.^[5]

27. At 1:30pm on 27 August 2020, the applicant laid down next to his stepdaughter and put his “finger in her rude part”.^[6] She asked that the applicant “stop” and he did not do so. She again asked that he “stop”, and he did so. He asked her if she wanted “more”, she advised that she did not and ran to the living room.^[7] The applicant followed his stepdaughter to the living room, where he “did the same thing”, touching her “rude part” underneath her underwear, including “in her rude part”.^[8] His stepdaughter ran to her bedroom. She was followed by the applicant, who “did it again”.^[9]

28. A childhood educator at a community house attended by the stepdaughter spoke to the stepdaughter on 26 August 2020. That educator overheard her mention to another child that she had “something disgusting”. The educator asked her what was disgusting, and she advised that the applicant had put his finger in her “rude part”.^[10]

29. The stepdaughter was then examined by a Consultant Paediatrician. The examination revealed mild non-specific erythema (skin rash) to the labia majora. The examination was otherwise normal. The Consultant Paediatrician observed that the examination results neither confirmed nor refuted the alleged sexual assaults.^[11]

30. The applicant undertook a tape-recorded record of interview. He said he had scratched or rubbed his stepdaughter’s genital region on three occasions, but he had done so on each occasion at her request.^[12]

31. The first occasion was “two to three weeks” prior to 27 August 2020. His stepdaughter was sleeping next to him and she felt itchy in the genital region. She grabbed the applicant’s hand and pressured it on to her genitals. The applicant took his hand back. The stepdaughter said that she liked it, grabbed his hand again and put it back onto her genitals.^[13]

32. On 27 August 2020, the applicant explained that his stepdaughter told him she had an itchy back. She took the applicant’s hand and “put it in the private area” for around four to five minutes, during which time the applicant scratched her genitals and accidentally put his finger inside her vagina, for approximately half a minute to one minute.^[14]

33. The applicant stated that “each time she itchy she call on mum as well”.^[15]

34. The applicant was asked whether he thought his behaviour was appropriate. His response was that: “I just followed her lead... I just do whatever she wants me to do” and “because she grabbed my hand and put it on her vagina and she want to - caught with that, otherwise I would do it. If I know - if I know the rule I wouldn’t touch”.^[16]

35. The applicant was also asked if he would scratch another little girl’s vagina if she told him it was itchy. His response was “cause the thing is she just keep ask for a favour so I would do it. Yeah. Cause I think just a kid, so-kids are the same. I will do a favour if-is not like a grown kid, no-no. Yep, if over 10 years old not doing. If over 10 years old I don’t want to do because it is illegal”.^[17]

36. The applicant, with respect to the occasion prior to 27 August 2020 in his Personal Statement gave a slightly different version as follows: “At one time, my stepdaughter felt itchy in her back and near her private part and she asked me to help scratching which I did. I did it because I wanted to help her with her itchiness”.^[18]

37. In his Personal Statement concerning the events of 27 August 2020 he stated as follows: “My stepdaughter again pulled my hand to scratch your itchy area near her private part. During that time, I accidentally touched her private parts. I did not have the intention to commit any wrongdoings. I did it for a good reason which was to help soothing her itchiness and I did not have any intention to commit any sexual abuses towards her. I did it because I cared for her and treated her as my own child. I admit that I was so naïve and did not know the Australian law that having done something like this could lead to child sexual abuse”.

38. In the witness box the applicant was warned that he was not obliged to answer questions that might tend to incriminate him. He did however in response to one question in cross examination state: “One day she was itchy on her body and she asked me for help, and she asked me to scratch on her genital part. I said it was not right. She pulled on my hand and said for me to do it. I scratched her genitals just as I saw her itchy. When she held my hand, I said it was not right and I pulled out my fingers”.

The character test - If the applicant is allowed to remain is Australia, is there a risk that he will engage in criminal conduct?

39. In short, the respondent contends that the applicant fails the character test based on two unproven charges. In support of this contention much emphasis was placed on the fact that the applicant’s account or explanation for his conduct was, as it put it, far-fetched and lacking in credibility. It also emphasises the fact that the step daughter’s explanation of what occurred has been consistent and credible.

40. The respondent contends that the past conduct points to the likelihood of future risk of engaging in criminal conduct in the future. There is no doubt that the applicant has a case to answer on the material that is before the Tribunal.

41. The applicant, whilst having given several slightly varying versions of events, has consistently maintained that what he did was not done with any criminal intent within the relevant meaning of the law. The Tribunal cannot and will not reach a conclusion on this question. It is a matter for the County Court of Victoria on another occasion.

42. The Tribunal considers that there is minimal risk of the applicant engaging in criminal conduct in the future. It should not be lost sight of that the applicant is entitled to the presumption of innocence. The Applicant has no prior criminal history.^[19]

43. Another matter that is particularly relevant to the question of risk is that the applicant was granted bail of his own undertaking. The bail is subject to strict conditions which have been observed earlier in these reasons. The bail has been extended on the same conditions by an experienced County Court Judge. One infers that if such an experienced County Court Judge considered the applicant to be a risk of engaging in criminal conduct in the future, bail would not have been granted, or certainly would not have been granted on the applicant’s own undertaking.

44. Not only was the applicant granted bail, but bail on his own undertaking was apparently agreed to at the County Court by the prosecution. The applicant contends, and the Tribunal agrees, that if the prosecutor agreed that bail should have been granted on such terms, an experienced prosecutor would also consider that he was not a risk to the community. This contention does have some weight.

45. It must be emphasised that the terms of the bail require the applicant to comply with the existing Intervention Order. Its terms have been outlined earlier in these reasons. Amongst other things, they prohibit him from being within five metres of a protected person or within 200 metres of the former matrimonial home. It should be noted that the applicant under the terms of his bail is not to go within 20 metres of any school or childcare centre and is prohibited from being in the company of children at any time. The risk that is identified by the respondent was indeed that of committing offences against children or potentially committing offences against children including his stepdaughter. As a protected person within the meaning of the terms of the Intervention Order, the applicant is strictly prohibited from going anywhere near his stepdaughter.

46. Bail is granted in Victoria to an accused person under the provisions of the Bail Act 1977 (Vic) (“the Bail Act”). This Act regulates whether a person charged with an offence should be granted bail, with or without conditions, with or without sureties or be remanded in custody. The provisions of the Bail Act weigh the importance of community safety taking account of the presumption of innocence and the right to liberty. A Judge or Magistrate when deciding whether to grant bail is obliged to consider a number of factors, including the nature and seriousness of the offending, the strength of the prosecution case, the accused’s criminal history, and the accused’s personal circumstances. Importantly, section 5AAAA of the Bail Act which deals with family violence risks, states that a bail decision-maker is obliged to make enquiries of the prosecutor whether there is in force a family violence Intervention Order made against the accused. The bail decision-maker when considering the release on bail of an accused charged with a family violence offence must consider whether there would be a risk that the accused would commit family violence if the accused were released on bail.^[20] All of these factors were no doubt considered by the Magistrate initially, and subsequently the County Court Judge who extended the applicant’s bail. They must have considered that the risk of the applicant further offending was minimal.

47. The Intervention Order it will be recalled prevents the applicant from contacting or communicating with a protected person including his stepdaughter, approaching or remaining within 5 metres of the protected person and amongst other things going to or remaining within 200 metres of the former matrimonial home.

48. The respondent counters this argument by saying that whilst there is the Intervention Order and the conditions of bail it does not remove the risk in its entirety. The Tribunal does not consider the language used in section 501(6)(d)(i) of the Act goes so far as to say that the risk must be removed in its entirety; there must be more than a minimal or trivial risk that the applicant would engage in criminal conduct if he were released into the community.

49. It should also be observed that the consequences for the applicant were he to breach either the terms of his bail and the existing Intervention Order would be very serious. Were he to do so he would almost certainly be committing an indictable offence for which a term of imprisonment would be likely imposed. This is a powerful deterrent against engaging in criminal conduct in the future.

50. Another matter was raised by the respondent which it says is relevant to the question of risk. It is that the applicant has not undertaken any rehabilitation programs such as courses or engaged in psychological treatment that may address some of the drivers of his offending. The Tribunal acknowledges this fact, and it was readily conceded by the applicant in cross examination. It was not explored in the course of his evidence, but the Tribunal infers that access to such rehabilitation programs in immigration detention is not easy or they are not otherwise readily available. It should also be noted that there were no conditions of his bail requiring the applicant to undergo such courses.

51. There is also another matter relevant to the question of risk. The applicant in his evidence stated that he would not do anything like this again having now been made well aware of the law in Australia. He also said that if he was released into the community, he would undertake to comply with all court orders and that he would not do anything to cause any problems to his family or the community. The Tribunal accepts these assurances.

52. Without in any way prejudging the matter the Tribunal has absolutely no doubt that the applicant’s experience of having a period in custody and having been subjected to the criminal justice process as he has to date, has had a salutary effect upon him. There have also been the immigration ramifications of his behaviour which have caused him great distress. There was the cancellation of his visa and the period that he has spent in immigration detention. Additionally, it should not be lost sight of that he has not seen his son since August 2020, which also causes him considerable distress. The Tribunal considers that these are powerful factors which will diminish the risk of him engaging in criminal conduct in the future if he is released into the community.

53. Another reason why the applicant says he is unlikely to engage in criminal conduct in the future if he is released into the community is because he wishes to resume employment as an asbestos remover so that he may earn money to make a contribution to the mortgage that exists over the matrimonial home. He gave evidence which was not in dispute that prior to his arrest he was the main income earner of the household. He had savings of approximately $30,000 prior to his arrest and understands that this money has been withdrawn by his wife and used to meet such expenses as the mortgage commitment. He is very concerned about his son having a roof over his head in the future and believes that if he is released into the community and can return to work, he will be able to make a contribution towards the mortgage. The Tribunal also accepts this evidence from the applicant. It also considers it a factor in reaching a conclusion that there is minimal risk of the applicant engaging in criminal conduct in the future.

CONCLUSION

54. The Tribunal acknowledges that past conduct is relevant to assessing future risk of engaging in criminal conduct in the future as required by section 501(6)(d)(i) of the Act. Whether the Applicant has committed an offence will have to be determined by the County Court of Victoria.

55. There is no doubt that the applicant has a case to answer. The Tribunal has placed significant weight upon this fact. However, the future risk of offending is not solely determined on that fact alone. The Tribunal acknowledges that sexual crimes involving children are of the utmost seriousness and of concern to the community. There is no doubt that if the matter proceeds to a jury trial and the applicant is convicted there will be immigration ramifications.

56. For the reasons outlined above the Tribunal concludes that on the preponderance of the evidence there is no more than a minimal or remote risk of the applicant engaging in criminal conduct in the future. Therefore, the Tribunal is satisfied that the applicant passes the character test. Given that finding, it is not necessary to consider whether the discretion vested in the Tribunal as decision maker under section 501(1) of the Act to refuse his bridging visa should be exercised.

DECISION

57. The Tribunal sets aside the reviewable decision and remits the matter to the respondent for reconsideration of the applicant’s bridging visa application with the direction that the applicant passes the character test within the meaning of section 501(6) of the Act.

I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

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

Dated: 19 January 2022

Dates of hearing:	7 January 2022
Applicant: Solicitor for the Advocate:	Self-Represented Keith Sypott
Solicitor for the Respondent:	Australian Government Solicitors

---

^[1] The G documents at page 138 included a statement made by the applicant on 17 August 2021.

^[2] In the County Court of Victoria, he has been arraigned on two charges of sexual penetration of a stepchild. (see page 127 of the G documents.)

^[3] This summary of the recorded interviews between the stepdaughter and the police together with the applicant and the police, is largely reproduced from the contents of the respondent's Statement of Facts, Issues and Contentions dated 5 January 2022. It was an accurate and fair summary of what was said, and the Tribunal sees no reason to depart from it.

^[4] Supplementary G documents page 217 at lines 255-259 and 220 at paragraph 287.

^[5] Supplementary G documents page 218 at lines 266-268.

^[6] Supplementary G documents pages 192-193 at lines 12-15.

^[7] Supplementary G documents page 202 at lines 105-107.

^[8] Supplementary G documents pages 202-204 at lines 108-129.

^[9] Supplementary G documents page 211 at lines 189-192.

^[10] Supplementary G documents pages 233-234 at paragraphs 4-6. The childhood educator then took steps that led to the police becoming involved.

^[11] The report of the Consultant Paediatrician is at pages 245-249 of the Supplementary G documents.

^[12] Supplementary G documents pages 293-294 at lines 138-141.

^[13] Supplementary G documents 280, 284 at lines 50-51, 82.

^[14] Supplementary G documents pages 286-289 at lines 92-109.

^[15] Supplementary G documents pages 290-291 at line 120. It should be observed that the applicant's wife stated to the police "I have never heard [redacted] complain her vagina is itchy or need me to scratch it." Supplementary G documents at page 230 paragraph 14.

^[16] Supplementary G documents pages 299 and 304 at lines 175, 205.

^[17] Supplementary G documents page 306 at line 211.

^[18] Paragraph 17 of the applicant's Personal Statement, dated 2 January 2022.

^[19] The Check Results Report from the Australian Criminal Intelligence Commission and the Kingdom of Cambodia Criminal Record at pages 25-28 of the G documents are referred to.

^[20] Under section 3 of the Bail Act a broad definition of "family violence" is referred to. It captures sexual penetration of a stepchild.