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Tribunal: Mr A Maryniak QC

A delegate of the Minister for Immigration and Border Protection refused the applicant an Employer Nomination visa. On 2 May 2018, the Administrative Appeals Tribunal set aside the decision.

The applicant was a citizen of India who arrived in Australia on 8 July 2007 on a Student visa. He was subsequently granted a subclass 457 visa and a bridging visa. The applicant was convicted of indecent assault against a 17 year old in 2009. At the time of the offence the applicant was 21 years of age.

The indecent assault offence occurred while the applicant was working at a Melbourne Subway. A patron and her friends arrived in the early morning and the applicant offered the patron his jumper because she was cold. The patron also asked if a toilet was available.  Some time later, the applicant again offered his jumper to the patron and suggested she could use the staff only toilet.  The applicant let the patron into the staff toilet area and whilst there, the applicant pushed up against the patron, touched her breast over her clothing and tried to kiss her. The patron said “No” and the applicant immediately stopped and left her so that she could put his jumper on and use the staff toilet. The patron returned to the Subway store wearing the applicant’s jumper. Hours later, the patron returned the jumper and left the store with her friends. The applicant was not aware of the patron’s age but thought she was about 19 because she had told him she “had been out clubbing”. 19 days later the patron reported the events to the police and the applicant was charged. The applicant pleaded guilty for indecent assault and was fined $2000.

Under section 501 of the Migration Act 1958 (The Act) the Minister (or his delegate) may refuse a visa if the holder has been convicted of a sexually based offence. This is part of a character test. It was not in contest that the applicant failed the character test due to the indecent assault conviction.

A direction provided by the Minister of Home Affairs guides the Tribunal when reviewing decisions to refuse a visa. The ministerial direction provides certain factors the Tribunal must take into account when reviewing the decision. These factors are split into ‘primary’ and ‘other’ considerations. The ministerial direction requires the Tribunal to consider how the circumstances apply to each of the considerations, determining the amount of weight to be given to each and then balancing the considerations to come to a decision. Primary considerations should generally be given greater weight than the other considerations.[1]

The Tribunal found that the primary consideration of the protection of the Australian community weighed in favour of the applicant not being refused the visa. The Tribunal came to this decision based on the nature of the indecent assault offence and the evidence of a clinical psychologist who reported that the risk of the Applicant committing any further serious offences of the sort committed in 2009 was low. After extensive questioning of the applicant, the Tribunal also concluded that the applicant was unlikely to re-offend. 

The Tribunal then considered the second primary consideration, which was the best interests of minor children in Australia affected by the decision. The applicant and his wife had a three month old baby at the time of the decision, born in Australia, whilst the Applicant was held in detention. The Tribunal found that it was best for the child to be raised in Australia, rather than India. This consideration weighed in favour of not refusing the visa.

The last primary consideration the Tribunal must consider was the expectations of the Australian community. The Tribunal found that the applicant’s breaches of these expectations were isolated and minimal. The substantial breach happened nine years before the Tribunal’s review and the applicant had essentially been of good character since. The Tribunal noted that Australia was founded on the concept of a ‘fair go’. Having regard to all the evidence the Tribunal found that the Australian community would expect the applicant to be given the opportunity to continue his life in Australia.

The other considerations that the Tribunal took into account, as specified in the ministerial direction, were the applicant’s strength, duration and nature of ties to the community. The Tribunal found the applicant had made a valuable contribution to the Australian community for over 10 years. He has studied and worked in Australia, had good friends here and was involved with a cricket club and helped others where he could. He had very much connected with the Australian community.

The Tribunal concluded that, on balance, the considerations weighed in favour of not refusing the applicant’s visa. The Tribunal set aside the decision under review and in substitution decided the applicant should not be refused the visa under subsection 501 of the Act.

Read the full written decision on Austlii.

[1] Direction 65, paragraph 8(4).