Thero and Minister for Immigration and Multicultural Affairs [2000] AATA 61 (3 February 2000)

Last Updated: 4 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 61

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1999/196

General Administrative DIVISION )

Re KAHATAPITIYE PANNASARA THERO

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Deputy President, TE Barnett

Date 3 February 2000

Place Perth

Decision The decision under review be set aside and the following decision substituted: The applicant's Bridging Visa Category A not be cancelled on the grounds that he is not of good character.

........................................

Deputy President

CATCHWORDS

Immigration - Refusal of Visa Class 428 (Religious Workers Visa) under ss. 501 and 502 Migration Act due to criminal convictions and not being of good character -Application for Bridging visa "A" to provide temporary status whilst awaiting decisions from various forums

Administrative Appeals Tribunal Act 1975 - s.37

Migration Act 1958 - ss.501, 502

Ho Song Lu v Minister for Immigration and Multicultural Affairs AAT No 13546

REASONS FOR DECISION

3 February 2000 Deputy President, TE Barnett

1. The applicant applied to the Tribunal on 23 June 1999 for review of a decision by a delegate of the respondent to cancel his Bridging Visa Category A pursuant to section 501 of the Migration Act 1958 ("the Act").

2. Mr V De Alwis represented the applicant and Ms M Adamson represented the respondent. The Tribunal heard evidence from the applicant, Mr J Alexander, Mr D Hatchett, Ms E Thomson, Ms C Cooray, Ms S Simpson, Ms R Simpson, Mr J Rajapakse, Mr W Wimalattisa, Mr V De Alwis, Mr R Wijesundera and Mr L Jayasundera.

3. The following documents were received into evidence:

Exhibit A1a) Writ of Certiorari and application to Federal Court dated 21.10.99

Exhibit A1b) Affidavit of applicant dated 18.10.99

Exhibit A2 Extract from transcript (page 5) dated 17.02.97

Exhibit A3 Witness statement of Stephanie Simpson undated.

Exhibit A4 Witness statement of Robyn Simpson undated.

Exhibit A5 Statement of Joseph Douglas Rajapakse undated.

Exhibit A6 Statement of Wasantha Wimalatissa dated 25.10.99.

Exhibit A7 Statement of Vijitha De Alwis and attachments dated 12.11.99.

Exhibit A8 Amended application of appeal for special leave to High Court 10.11.99

Exhibit A9 Director of Public Prosecutions decision to Court of Criminal Appeal dated 21.10.99

Exhibit A10 Affidavit of applicant in matter W116/99 in Federal Court dated 5.11.99

Exhibit A11 Copy of order before Lee J dated 27.10.99

Exhibit A12 Statement of Rohan Wijesundera undated.

Exhibit A13 Statement of Lakshman Jayasundera dated 26.10.99

Exhibit R1 Statement of Cecilia Cooray undated.

Exhibit R2 Copy of "West Australian" article dated 28.02.97

Exhibit R3 Director of Public Prosecutions letter dated 15.11.99

4. The applicant originally came to Australia on 23 February 1993 on a class 670 (Visitor's Visa) and was then granted a class 428 (Religious Workers) Visa for 2 years in December 1994 (T19/183-4). This enabled him to practice as a Buddhist Monk. The Sri Lankan Buddhist Organisation of Western Australia Inc and the Singhalese Association of Queensland had sponsored his application for the Class 428 visa. As sponsors these organisations undertook responsibility for financial obligations incurred by the applicant should a health or character problem arise after his arrival in Australia (T11). His original application to enter Australia was supported by Mr Joseph Alexander a non Buddhist member of the Sri Lankan Community in Western Australia, who contributed towards the cost of his airfares and offered accommodation in Perth so that the applicant could exercise his healing powers to help Mr Alexander's son, who suffered from what has been described as a 'nervous disorder'.

5. After arrival in Australia and subsequent grant of religious worker's visa, the applicant spent time working with Buddhist Communities in Queensland and Western Australia both as a priest and as a practitioner of Ayuvredic Medicine. The weight of evidence persuades the Tribunal that the applicant had been well trained in both these vocations in both Sri Lanka and India and that he was accepted and respected in both those Australian Buddhist communities for the way he practised those vocations.

6. In Western Australia the applicant was initially accommodated in the home of Mr Alexander at 7 Dauphin Place, Willetton. In August 1994 a property was purchased in the name of Mr Alexander at 95 Rochester Circle, Balga and the applicant took up residence there in September 1994 after returning from a 10-month stay with the Queensland Buddhist Community. The house was then used by the local Sir Lankan Buddhist community as a temple and as the monk's residence. (The ownership of the Balga property is now in dispute between Mr Alexander and the applicant who claims it was purchased through community donations for him and that Mr Alexander held it as Trustee for the community).

7. On 29 June 1995 the applicant applied for a three year extension of his class 428 visa and this was again supported by the Western Australian and Queensland Sir Lankan Buddhist communities as sponsors. While this application was under consideration, however, the applicant was arrested in September 1995 and charged with sexual offences against two Australian women who had come to him at the Balga temple for healing. This was followed by a falling out with Mr Alexander who tried to evict the applicant from the Balga premises. A caveat was lodged against the title on behalf of the applicant and the dispute eventually ended up in the Supreme Court, but has not been heard. (Mr Alexander, meanwhile has sold the property).

8. On 26 February 1997, the applicant was indicted in the District Court of Western Australia on eleven counts as follows (after amendment during proceedings):

* Sexual penetration 6/7/95 I year imprisonment

* Sexual penetration 6/7/95 1 year imprisonment concurrent

* Indecent Assault 6/7/95 6 months imprisonment concurrent

* Indecent assault 6/7/95 1 year imprisonment concurrent

* Sexual penetration 6/7/95 2 years imprisonment concurrent (quashed)

* Sexual penetration 6/7/95 2 years 6 months imprisonment concurrent

(quashed)

* Sexual penetration 7/7/95 1 year imprisonment (quashed)

* Indecent Assault 7/7/95 6 months imprisonment

* Indecent assault 18/8/95 6 months imprisonment

* Indecent assault 18/8/95 6 months imprisonment

* Indecent assault 18/8/95 6 months imprisonment

9. At the criminal trial interpretation was provided by Mrs Cooray, who is the only accredited Singhalese/English interpreter in Western Australia. Mrs Cooray had been the interpreter during a police record of interview and was also the interpreter in later proceedings brought by the applicant in this Tribunal decided by Justice O'Connor on 8 June 1999 and in a stay application heard by myself regarding this application on 21 and 22 October 1999. When it became apparent that the applicant was raising issues about Mrs Cooray's interpretation, the Tribunal obtained other interpreters from interstate who provided interpretation by telephone.

10. At his criminal trial the applicant pleaded not guilty to all counts. He appeared to have admitted providing medical treatment to the two women, which involved the application of oil to their bodies, but claims that they undertook the treatment with fully informed consent as adults. He now claims that any apparent inconsistencies in his story to the police and at the trial and also in this Tribunal were caused by inadequate interpretation leading to his failure to understand exactly what was being said by the witnesses and what was being alleged against him. In the event, he was convicted on all counts by the District Court and sentenced to a total of 4 years imprisonment commencing on 26 February 1997.

11. Since that date he has steadfastly maintained his innocence. This has led to him being treated as a sex offender who has not admitted and who therefore has not accepted responsibility for his illegal sexual behaviour and who has expressed no remorse. This has barred him from admission to sex offender's rehabilitation courses in prison, which in turn has precluded him from consideration for minimum custodial sentencing and parole.

12. The applicant appealed the criminal convictions to the Supreme Court of Western Australia, raising these and other grounds. His appeal was rejected and he then served out his full term of imprisonment.

13. Pending determination of the applicant's application to extend his class 428 Visa, he had been granted a Bridging Visa A ("BVA"). On 15 May 1997 a delegate of the Minister refused the application for an extension of his class 428 (religious workers visa) under s.501 and 502 of the Act on the ground that because of his past criminal conduct and convictions he is not of good character. On 23 June 1999, from prison, the applicant sought review of this decision by the AAT.

14. Meanwhile, on 3 March 1999 the applicant also applied for a Protection visa. The refusal of that application on 13 May 1999 was appealed to the Refugee Review Tribunal on 2 June 1999. On 28 May 1999 a delegate of the Minister cancelled the applicant's BVA on the ground that he was not of good character and a Bridging Visa category E ("B.V.E") was automatically issued to provide legal status for the duration of his term of imprisonment. On 8 June 1999, in the AAT, Justice O'Connor affirmed the decision to refuse the class 428 (Religious worker) visa.

15. As the end of the applicant's prison term approached his B.V.E would automatically expire leaving him as an illegal immigrant liable to immigration detention. The applicant then applied to this Tribunal for review of the cancellation of the BVA for being not of good character. This is the application presently under consideration by this Tribunal.

16. In addition to this application, through his legal representative, Mr De Alwis, the applicant has launched the following proceedings in three different forums:

* Refugee Review Tribunal: application to review the refusal of a Refugee Special Protection Visa. This application was heard by the RRT on 6 October 1999 and a decision is pending. If the RRT affirms the decision , the applicant has already indicated he will apply to the Federal Court for review, pursuant to the appeal provisions in the Act

* Federal Court :

(a) On 5 November 1999, the applicant filed an application for an extension of time to seek review of the decision of Justice O'Connor of 8 June 1999.

(b) He has also applied for a Writ of Certiorari to set aside that decision to refuse a Temporary Resident Visa, made by the 2^nd respondent as Delegate of the 1^st respondent and for an order and a Declaration, that there has been an unreasonable delay in making the decision (and also for orders by way of Interlocutory Relief, Staying the conduct in which the first and second respondent and their agents/servants/employees may engage to arrest, detain and deport the applicant).

* High Court: The applicant filed applications for Special Leave to appeal the decision of the Western Australian Court of Criminal Appeal on 1 October 1999. During preliminary proceedings, Mr De Alwis was granted leave to appear as the applicant's representative (despite lack of a practising certificate). It then became apparent that three of the more serious counts on the District Court indictment upon which the applicant had been convicted were basically defective for failing to allege lack of consent by the victim. The DPP undertook to place this matter before the Supreme Court for its consideration and the High Court granted leave for Mr De Alwis to file an amended appeal book in the High Court prior to its hearing the application for special leave to appeal.

* Supreme Court of Western Australia: the matter of the defective indictment is to be placed before the Supreme Court.

17. In his submissions to this Tribunal regarding the cancellation of the BVA, which is the only matter for determination before the Tribunal, Mr De Alwis submits that the following matters should be taken into account:

(a) The purpose of granting a Bridging Visa A is to assist a person who has sought, or is about to seek, administrative or judicial review of refusal to grant a visa (or of any other proceeding related to his immigration status. A BVA is issued to enable the person to prosecute those proceedings effectively. Mr De Alwis submits that the applicant has sought review by the RRT of the refusal to grant a protection visa and review by the Federal Court of Justice O'Connor's affirmation of the decision to refuse an extension of his Religious Work Visa (Number 428). Upon his release from prison, his BVE expired leaving him without legal migration status if the BVA is also cancelled. (It was for this reason that the Tribunal made a temporary order staying the cancellation of the BVA pending decision on this application).

(b) Mr De Alwis submitted that Section 501(1)a and 501(2) are intended to be applied to special categories of persons and should not have been applied in the applicant's case regarding a BVA

(c) Mr De Alwis further submits that the applicant has been wrongly convicted and sentenced. In support of this he has pointed to evidence, which he says, shows that there has been a conspiracy to harm the applicant hatched by the Tamil Tigers Terrorist organisation. The evidence to this effect is that one of the complainants in the criminal trial had a boyfriend with a Tamil sounding name and that acts of terrorism have been committed by Tamils against non-Tamil Sri Lankan leaders in other countries - not in Australia. Mr Alexander who came to Australia from Malaysia was also accused of having Tamil connections. Also in support of the claim of wrongful conviction, Mr De Alwis pointed to the continued use of Mrs Cooray as interpreter in all previous forums. He cross examined her and obtained an admission that she had no prior experience interpreting in a criminal court and was not really aware of the difference been criminal and civil proceedings. She denied allegations that in the District Court trial she failed to interpret everything, which was being said in English to the accused. In answer to the Tribunal's questions however, she agreed that the judge had asked her to use her judgment as to whether the applicant was understanding what was being said in English. If she thought that he did not understand clearly, she was to raise her hand so the judge would interrupt the witness or counsel who was speaking to enable her to interpret for the applicant. Observing the interpreter trying to interpret "difficult English" evidence to the applicant simultaneously in this Tribunal, I think it is certainly possible that the applicant did not get to learn all the significant evidence being given against him at his District Court trial and that he did not pick up the various nuances of the evidence against him. When it came to sentencing there was no official interpreter available and the judge called upon Mr Wisanta Wimalatasewa, who was a member of the public observing proceedings, to interpret. Mr Wimalatasewa gave evidence to this Tribunal and said that he was unable to interpret competently in the District Court. Mr De Alwis submitted to this Tribunal that the applicant was therefore deprived of the opportunity to present his case on sentencing properly as he did not know what was going on.

(d) Mr De Alwis also referred at various stages to discrepancies in the evidence of the crown witnesses and to occasions where there were grounds to think that aspects of the evidence were false or unlikely to be true. He also referred of course to the three counts and convictions which were clearly defective - though this still left four counts which were not defective, including 2 of anal penetration. Mr De Alwis was emphasising that there was merit in the application to the High Court as a factor to take into consideration when exercising discretion whether or not to grant a BVA.

(e) Mr De Alwis made frequent reference to the Universal Declaration of Human Rights chapter 10, to which Australia is a signatory and which, he said, provides that the full process of law must be provided to all persons seeking to appeal criminal convictions. He says that a BVA is necessary to enable the applicant to effectively prosecute his appeal to the High Court, as he will otherwise be taken into immigration detention, at prohibitive cost to himself. Failure to grant a BVA would be a breach of the Universal Declaration, he submitted.

(f) Mr De Alwis raised also the International Convention on Refugees pointing out the concessions which must be granted to refugees. He submitted that the Convention would be breached if the applicant were not granted a BVA to enable him to complete his application to the RRT and the likely subsequent appeal to the Federal Court.

(g) Mr De Alwis relies heavily upon the decision of Deputy President Forgie in Ho Song Lu v Minister for Immigration and Multicultural Affairs AAT No 13546. He points out that Justice O'Connor was considering a different issue to that which confronted the Tribunal in Lu and in this present application. Justice O'Connor was considering the applicant's character in the context of granting him a visa to remain in Australia for a period of three years. In Lu and in this application, the applicant's character is being considered, he says, in relation to cancellation of a bridging visa A to enable him to remain legally in Australia for a limited period to conduct his appeal against conviction and his various applications for review before the Federal Court. Mr De Alwis submitted that in the present application, even if the Tribunal again finds the applicant to be not of good character, because of his recent convictions on serious charges, there remains a discretion to not cancel the BVA to enable him to effectively complete the process of judicial and administrative review which he has commenced in the Refugee Review Tribunal, the Federal Court and the High Court. In deciding whether to exercise its discretion not to cancel the BVA despite a finding he is not of good character, the Tribunal must take into account the whole of the applicant's personal history, the fact that he has an exemplary record of dedicated service, high qualifications, considerable community support and an unblemished character other than the question of the convictions for offences against these two women which are under challenge in the High Court at this moment. Mr De Alwis referred to an impressive amount of good character evidence and evidence of community support. He conceded that there might be an expectation in the wider community that it should be protected from the danger of having convicted sex offenders at large. However, citing Lu, he submitted that there is also a community expectation that a convicted person of previously good repute should be granted a BVA to allow him to effectively prosecute these various proceedings to the full extent of the law.

(h) Mr De Alwis submitted that only brief extracts form the trial judge's sentencing comments were placed before the delegate who made the determination under review and only those same extracts are before this Tribunal. He says that there is no evidence who selected these extracts or upon what basis the selection was made. It is an inadequate basis upon which to make a determination of character, whereas the full transcript will be before the High Court if it decides to hear the appeal.

respondent's submissions

18. Ms Adamson's submissions were clear and to the point. The applicant has been convicted in the District Court by judge and jury of serious crimes of a sexual nature against two adult females who relied upon his integrity as a Buddhist priest and Auyervedic medical practitioner. The offences had an element of luring the victims into his presence and of deception and breach of trust. The sentencing judge found no mitigating circumstances and the applicant continues to deny any wrongdoing and remains entirely without remorse. There is therefore a high risk of recidivism.

19. The applicant exercised his right of appeal to the Supreme Court, but the conviction and sentences were upheld. He took no action at that stage to seek to appeal to the High Court and the criminal conviction is therefore final. Even now, after he has served the entire sentence, he does not have an appeal pending before the High Court, merely an application for special leave to appeal.

20. To grant a BVA would allow the applicant to remain in the community where he will be free to again prey upon female victims. It is his intention to continue to practice his vocation as Monk and healer and there will be serious risk to the community, many of whose members believe, on inadequate grounds, that the applicant is innocent of the charges, which they believe, were falsely brought against him.

21. Ms Adamson submits further that denial of a BVA will not prevent the applicant from completing his various proceedings as this can be done from immigration detention, as it is not the policy to deport people who have bona fide proceedings pending before Tribunals or Courts in Australia.

22. As to any possible breach of the Convention on the rights of refugees, Ms Adamson points out that the applicant did not come to Australia as a refugee and does not have refugee's status. He is merely a person who has applied for a protection visa.

23. Ms Adamson submits that the Tribunal is bound to accept the criminal convictions decided by the District Court Judge and jury and the comments of the sentencing Judge as evidence of the seriousness of the circumstances of the applicant's criminal offences. Therefore, The Tribunal is obliged to find that the applicant is not of good character, as has already been decided by Justice O'Connor on precisely the same facts in June 1999.

24. Ms Adamson says that if the Tribunal is inclined to follow Lu and considers exercising its discretion to set aside the cancellation of the BVA, it should take proper account of the very different circumstances in the two cases. Lu had fully accepted his guilt, demonstrated genuine remorse, undertaken counselling and commenced a successful business on which his father and family depend. The applicant in this case poses a far higher danger to the Australian Community and should not be allowed to remain in it. For these reasons she says that the cancellation decision should be affirmed.

25. The Tribunal considers that the case of Ho Song Lu is relevant and helpful and warrants examination in some detail. Mr Lu migrated to Australia with his family as a refugee in 1982 aged 13 years. When he was 21 years old, he was convicted in the District Court of 4 counts of armed robbery, a breaking and entering and stealing and other related offences and was convicted and sentenced to imprisonment for 6 ½ years with an additional sentence of 26 months. The offence involved violence and he terrorised the victims. For Lu it was a first offence but an appellate court upheld the heavy sentence because the community views such offences so seriously and because additional offences were committed while he was on bail, when he committed several drug offences and was sentenced to a further term of imprisonment.

26. Just prior to Lu's release from prison, the Minister ordered his deportation on 9 June 1997. Lu sought review by the AAT and was then released on parole to his parent's home in October 1997. While on parole he commenced a legitimate and successful business. In March 1998,the AAT set aside the deportation order and the Minister lodged an appeal to the Federal Court in July 1998.

27. At that time, Mr Lu's sole authority to remain in Australia was a transitional Permanent Visa (TPV). On 22 October 1998, the Minister cancelled that visa on the ground that Lu was not of good character within the meaning of s.501(2)(a)(I) of the Act. The Minister also declared him to be an excluded person under s.502. Under that subsection, Mr Lu was precluded from applying to the Tribunal for review but could apply to the Federal Court. The Minister then withdrew his application to the Federal Court to review the Tribunal's decision, which had set aside the deportation order. Mr Lu was then taken into immigration detention pending removal pursuant to the s.502 declaration.

28. Under the Migration Regulations, Mr Lu was entitled to apply for a Bridging Visa. He did so on 17 November 1998 stating his intention to seek Federal Court review of the s.502 declaration "within a couple of days". On 19 November, Mr Lu sought judicial review in the Federal Court against the Minister's decisions under sections 501 and 502. He also sought review by the Tribunal of the Minister's decision to cancel his TPV.

29. A delegate of the Minister decided that Mr Lu was not of good character under s.501 and that his application for a bridging visa be refused.

30. In determining the application to review the refusal of the Bridging Visa, Deputy President Forgie determined that despite Lu's good and constructive conduct since release from prison, his serious offences were so recent that he was still not of good character. The Deputy President then proceeded to review and analyse the basis for exercising the discretion whether to grant the Bridging Visa despite being not of good character. She considered the Minister's General Direction and the evidence before her. She also considered the purposes of a Bridging Visa (General), one of which is to enable him to pursue an application for merits review of a decision to refuse a visa under s.501 of the Act. She found that it was still a live issue:

" I am satisfied that his having such a visa would assist him in pursuing his application, if it should transpire that he is able to pursue it. Against the advantages that would flow to Mr Lu from holding the visa, I should balance the interests of the community. One of those interests matches those of Mr Lu. That is that he should be able to pursue his rights to have the decision reviewed within the limits set up by the law and, within those limits, should have a reasonable opportunity to gather his material and prepare his case. Another interest of the community is that it should not be subject to any danger. In this case, I am satisfied that Mr Lu is not likely to present any danger to the community. I base that conclusion on the evidence of Dr Curtis, Ms Duffy and Ms Meakin. In view of these conclusions, I have decided that Mr Lu should not be refused a bridging visa (general) pursuant to section 501 of the Act. Whether or not he is granted that visa depends upon Mr Lu's meeting the requirements to which I have referred and to which I have already referred".

31. I have found it helpful to paraphrase and attempt to apply Deputy President Forgie's comments quoted at paragraphs 28 above.

32. I am satisfied that having a BVA (cancelled on 28 May 1999) would assist the applicant monk in pursuing his application for a Refugee Special Protection Visa in the RRT (or on appeal to the Federal Court if that becomes necessary); It would also assist his application for review of Justice O'Connor's decision of 8 June 1999, if the requested extension of time is granted by the Federal Court. It would also assist his application for a Writ of Certiorari in the Federal Court and his application for special leave to appeal his conviction in the High Court (though a BVA is not intended for such a purpose). Against the advantages that would flow to the Rev. Pannasara from holding a BVA (namely that he would avoid immigration detention at his own cost, possibly in a remote area isolated from his legal representative), I should balance the interests of the community. One of those interests matches those of Rev. Pannasara. That is that he should be able to pursue his rights to have the immigration decisions reviewed within the limits set up by the law and within those limits should have a reasonable opportunity to gather his material and prepare his case. Another interest of the community is that it should not be subject to any danger.

33. In Lu, Deputy President Forgie was satisfied that Mr Lu, despite the serious nature of the violent offences of which he had been convicted, did not at the relevant time present any danger to the community. (Mr Lu had accepted responsibility for his offences, apologised to the victims, undergone counselling and had set up a successful legitimate business from which he was supporting his parents). The cancellation of Lu's visa was therefore set aside.

34. The situation of Rev. Pannasara is rather different as he has not accepted responsibility for the serious sexual offences of which he was convicted, has expressed no remorse and has not undergone counselling. On the face of it that makes him a higher risk of re-offending. Those facts however must be considered in the context that he has been unable to undergo counselling and has not expressed remorse because he has denied the offences from the outset, pleaded not guilty in the District Court and maintained his innocence throughout the years of his imprisonment. From prison, he availed himself of his rights to appeal and did so, unsuccessfully.

35. The Tribunal is obliged to accept the actuality of his conviction and sentences (except the 3 quashed convictions) but it must also take note of the fact that he continues to exercise his rights of appeal and has an application for special leave before the High Court at this moment. It would be improper for this Tribunal to make detailed comment on the merits of that application except to say that on the evidence before it, the Tribunal is not satisfied that the application has no merits whatsoever. The Tribunal also takes note of the fact that despite long public scrutiny of the applicant by the respondent and by the police and through the criminal courts, there are no allegations of wrong doing against the applicant other than the circumstances leading up to his convictions in the District Court and the fact that he is in dispute over the ownership of property with Mr Alexander. On the contrary, there is ample oral evidence from reputable citizens broadly representative of a large Sri Lankan Buddhist Community and from other Australian citizens that, apart from those convictions, the applicant has an otherwise unblemished record as a respected spiritual adviser and healer.

36. In prison, the applicant's record of behaviour and cooperation with prison authorities is outstandingly good. What is more, by continuing to maintain his innocence, he knowingly denied himself the chance of early release on parole, so that he has served the full period of his 4-year sentence.

37. As previously stated, the Tribunal is bound to accept the convictions and sentence of the applicant for sexual crimes against two young women who approached him for healing. These are recent convictions and despite evidence of current good character the Tribunal finds that the applicant is now not of good character. On balance however, the Tribunal has decided to exercise its discretion in favour of not cancelling the applicant's BVA because of him being not of good character. The Tribunal is impressed by the widespread community support he enjoys from very respectable citizens of different race and gender who have been in close contact with him over a long period. It notes that he has fully served his sentence and has an excellent prison record.

38. Furthermore, the applicant has instituted genuine and lawful legal proceedings designed to gain him status to remain in Australia and to secure his acquittal of the only offences he has committed. Failure to grant a visa will result in immigration detention, potentially at great cost to himself and potentially in a remote location, which would seriously impede his ability to prosecute those proceedings.

39. The Tribunal has had the opportunity of observing the applicant under guard throughout these lengthy proceedings. He has conducted himself with great gentleness and dignity. On all the evidence, the Tribunal finds that he is unlikely to commit sexual or other criminal offences while his various proceedings are before the courts and Tribunals.

40. It can be argued that Bridging Visa were never intended to provide immigration status to enable a convicted offender to seek leave to appeal to the High Court, especially when it is so long out of time and after he has completed his sentence. However Bridging Visas were surely intended, in appropriate cases, to grant temporary immigration status to allow a person to seek review of decisions of migration authorities to the full extent allowable by the law. The Tribunal is of the opinion that despite the serious nature of the offences and the finding that he is not of good character, it is appropriate, for the reasons given, that the applicant's BVA not be cancelled on the grounds that he is not of good character.

decision

41. The decision under review be set aside and the following decision substituted. The applicant's Bridging Visa Category A not be cancelled on the grounds that he is not of good character.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President, TE Barnett

Signed: .................................................

Associate

Date/s of Hearing 21 and 22 October, 17 November 1999

Date of Decision 3 February 2000

Counsel for the Applicant Mr V De Alwis

Solicitor for Applicant

Counsel for the Respondent Ms M Adamson

Solicitor for the Respondent Department of Immigration and Multicultural Affairs