Australian Immigration Daily News

How strictly should the character provisions of the Migration Act be administered?

Should it be the case that a person who has been convicted in an overseas jurisdiction of committing a sexual offence against a child should never, ever be allowed to enter Australia, no matter what?

What if the applicant fails to disclose the conviction on his visa application? Should that be the end of the matter? Visa application refused and case closed?

These contentious and controversial questions came up in a case that was recently decided in the Administrative Appeals Tribunal, Fabb and Minister for Immigration and Border Protection (Migration) (2016) AATA 894 (11 November 2016).

This was the background of the case:

The applicant was an 80 year old citizen of the United Kingdom. In March 2015 he lodged an application for a “short stay” Visitor visa, by which he proposed to stay in Australia for a period of about 2 weeks in April 2015. In the section of the application form headed “Character declarations”, a question asking whether the applicant had ever been convicted of a crime in any country was answered “No”.

That answer was not correct. Actually, the applicant had been convicted in September 2005 of an offence described as “abuse of trust, sexual activity with a child pursuant to the Sexual Offences Act (2003) (UK).

Due to this conviction it was plain that the applicant did not satisfy the character test. Section 501(6)(e) provides that a person does not pass the character test if a court in a foreign country has convicted the person of one or more sexually based offences involving a child.

Having read this far, would you be surprised to learn that the Tribunal set aside a decision of the Department to refuse the Visa?  Well, that is what happened!

So what led the AAT to make this decision? Especially in light of language used by the Tribunal member  in the reasons for the decision that: “Australia has an extremely low tolerance level of any criminal conduct against minors and vulnerable persons….it would generally be expected that a person who has been convicted of a sexual crime against a minor would forfeit the privilege of coming to…Australia”.

Well, it surely appears that at least one factor that tilted the balance in this case in favour of the applicant was the nature of the conduct which led to his conviction. As reported in the AAT decision, that conduct was described as touching his 9 year-old step-granddaughter in a sexual manner. The “touching” was particularized in the criminal proceedings against the applicant in the UK as involving “a kiss”. 

Also apparently weighing in the applicant’s favour was the way in which the criminal proceedings had been dealt with in the UK.  The applicant was sentenced to a three year conditional discharge, a three year “sexual offender” notice and an order to pay costs in the amount of 500 pounds.

Another factor  that was apparently of assistance to the applicant was that he was 80 years old, had worked all his life in the UK, and had in the words of the Tribunal, “otherwise led a good and blameless existence”, and had not re-offended in the 11 year period since he had been convicted.

Perhaps most determinative was the fact that the applicant had produced evidence of a psychiatric report that had been prepared by a forensic psychiatrist.  This report contained a conclusion that the applicant presented a “low risk of further reoffending in the future”.

The Tribunal member observed that if there had been any evidence that the applicant posed any risk of harm to any person, especially a minor, then it would have affirmed the refusal of the application.

What about the problem that the applicant had not disclosed his conviction on the visa application form?

The applicant’s explanation for this failure, as quoted in the Tribunal’s decision, was that:

“This was not for any reason of intended deceit but simply to avoid delays in obtaining a Visa due to the time pressure s at that time…”

The Tribunal seems to have accepted this explanation, observing that:

“The omission of information concerning his conviction appears to be a case of mortification and shame, and not an attempt to mislead and deceive”.

And what about the submission that was made to the Tribunal on behalf of the Minister that: “the nature of the Applicant’s behavior and offence is such that the Australian community would expect that he should not hold a visa”?

The Tribunal determined that this submission was “too sweeping”, especially in light of the fact that the Migration Act does not presently include a provision which makes it mandatory that a visa application by a person who has been convicted of a sexual offence involving a minor be refused.

It is evident also from the Tribunal’s decision that “compassionate circumstances” - namely, that the applicant was a person of advanced age, and that the purpose of his proposed visit was to visit his son and his young grandchildren, also was something that was considered to be in the applicant’s favour.

So what do you think?  Did the Tribunal decide this case correctly? Should there be a “blanket ban” against anyone who has been convicted of a sexual offence involving a minor from ever getting a visa of any kind to be able to travel to Australia?

Or should this be something that is a matter that should be left to the discretion of the Department and/or the Tribunal, to be determined based on the whole of the relevant circumstances?

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