GYNF and Minister for Home Affairs (Migration) [2019] AATA 959

Background

The Applicant, born in Iran, arrived in Australia as the holder of a Student Visa in 2010. The Applicant departed Australia as the holder of a Protection Visa in 2017.

In 2015, the Applicant was convicted of sexually-based offences involving a child. The Applicant has communicated online and engaged in inappropriate sexual communication with an undercover police officer who pretended to be a child. The Applicant was ordered to serve a community corrections order for 18 months and 120 hours of community service.

In 2018, the Applicant applied for a Return Visa (Class BB), but was refused by the delegate on the basis that he did not pass the character test pursuant to s 501 of the Migration Act. The Applicant applied for a review of the decision to refuse to grant the visa.

Decision

The Tribunal considered the Ministerial Direction No 79 to decide whether the Applicant passes the character test. According to the Direction, the Tribunal made the findings as to the following considerations:

1. Protection of the Australian community

The Protection of the Australian community consideration has two aspects:

(i) the nature of seriousness of the conduct

(ii) the risk to the Australian community should the Applicant commit further offences

The Tribunal made the findings that the nature of the offending and potential harm to the Australian community is serious, however the risk to the Australian community is low for the following reasons:

·         the offence did not in fact involve a real child, but instead an undercover police officer. The Applicant never had access to the child and his behavior had little impact upon the victim

·         the Applicant entered the guilty plea early, had no prior criminal history and has shown genuine remorse for his behavior

·         the prospects of rehabilitation are good and the Applicant already undertook rehabilitation program and engaged GP and psychologist to see on a regular basis since his arrest

Therefore, the Tribunal found that this consideration falls in favour of the Applicant.

2. Best interests of minor children

The Tribunal found that this was not a relevant consideration as the Applicant’s son has already turned 18 years old.

3. Expectation of the Australian community

The Applicant has been living in Australia since 2010 and made a positive contribution to Australian community by studying, working and raising his son with his wife. Therefore, the Tribunal found that this consideration gives weight in favour of the Applicant.

4. Impact on Family Members

The Tribunal found that denial of the visa would have a devastating impact upon the Applicant’s wife and son who are both Australian citizens. The son is currently studying in USA, but the Applicant is presently unable to work overseas, and he cannot assist his son with the costs of education.

5. International non-refoulement obligation

The Applicant has been found to be owed protection obligation, but the Tribunal found that this consideration does not arise in this case as the Applicant is already outside of Australia and currently resides in Iran.

6. Impact on victims

The Tribunal found that there is no evidence of any adverse impact on any victims if the Applicant were to return to Australia.

7. Impact on Australian business interests

The Tribunal found that there is no evidence of any adverse impact on any Australian business interest if the Applicant were not allowed to return to Australia.

The Tribunal concluded that the relevant considerations weigh in favour of the Applicant and set aside the decision.

Key takeaways

In GYNF’s case, the Applicant was refused a visa due to his past criminal offence involving a child. The Tribunal had regard to the relevant considerations in the Ministerial Direction and found these considerations weigh in favour of the Applicant. The criminal offending of the Applicant was serious in nature, but the Tribunal found in favour of the Applicant having regard to other considerations including the low risk of re-offending, the Applicant’s positive contribution to Australian community, devastating impact upon his family living in Australia and absence of any adverse impact upon victims or Australian business interests. 

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