Division: GENERAL DIVISION File Number(s): 2018/2427 Re: The Trustee for the Fuzzy Events Unit Trust APPLICANT And Minister for Home Affairs RESPONDENT DECISION Tribunal: The Hon. Justice Stevenson, Deputy President Date: 7 September 2018 Place: Sydney The Tribunal decides: 1. To set aside the decision of the Delegate of the Minister for Home Affairs, made on 27 April 2018, whereby Joseph Junior Adenuga was refused a Temporary Activity (Class GG) visa. 2. Although Mr Adenuga does not pass the character test, the Tribunal does not exercise its discretion pursuant to subsection 501(1) of the Migration Act 1958 (Cth) so as to refuse the application of Mr Adenuga for a Temporary Activity (Class GG) visa. ...........................[SGD]............................................. The Hon. Justice Stevenson, Deputy President © Commonwealth of Australia 2018 CATCHWORDS IMMIGRATION – character test – risk that visa applicant will commit a criminal offence in Australia – discretion – expectations of the Australian community in granting or refusing a visa – impact on Australian business interests if visa refused – decision set aside and substituted LEGISLATION Migration Act 1958 (Cth) s 501 Sentencing Act 1991 (Vic) CASES Labi and Minister for Immigration and Border Protection (Migration) [2016] AATA 316 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Murphy and Minister for Immigration and Border Protection (Migration) [2018] AATA 750 Waits and Minister for Immigration and Multicultural Affairs [2003] AATA 1336 YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 REASONS FOR DECISION The Hon. Justice Stevenson, Deputy President 7 September 2018 1. On 27 February 2018 Mr Joseph Junior Adenuga ("Mr Adenuga") applied for a Temporary Activity (Class GG) Visa ("the visa") to enable him to enter Australia for a short period of approximately 10 days between 22 September 2018 to 1 October 2018. On 27 April 2018 a Delegate for the Minister for Home Affairs ("the Delegate") refused to grant the visa, on the basis that Mr Adenuga did not pass the character test pursuant to section 501(1) of the Migration Act 1958 (Cth) ("the Act"). 2. The decision of the Delegate was expressed as follows: 24 "I concluded that Mr ADENUGA represents a risk of harm to the Australian community which is unacceptable. I could not be satisfied that the risk of Mr ADENUGA reoffending was negligible. I found that there are no sufficient countervailing considerations in this case to warrant the Australian community accepting any level of risk. PAGE 2 OF 23 25 Having given full consideration to all of these matters, I decided to exercise my discretion to refuse to grant Mr ADENUGA'S application for a Temporary Activity (Class GG) visa, under subsection 501(1)." 3. On 1 May 2018 the Trustee of the Fuzzy Events Unit Trust (“the applicant”), applied for a review of the decision of the Delegate. This application for review came before me for hearing on 21 August 2018. BACKGROUND 4. Mr Adenuga is a musician who is known by a stage name of "Skepta". He is scheduled to perform a series of concerts in Sydney, Melbourne, Brisbane, Adelaide and Perth between 22 September 2018 and 1 October 2018. These concerts were arranged by the Fuzzy Events Unit Trust, in which Mr Kun Ming Gan (“Mr Gan”) holds a beneficial and controlling interest. In his statement of 24 July 2018 Mr Adenuga described his occupation as "an English grime artist, rapper, songwriter, record producer and music video director". 5. It is common ground that Mr Adenuga has a criminal history, which was set out accurately in the applicant's Statement of Facts, Issues and Contentions as follows: Country Offence Sentence Australia Recklessly cause No conviction injury (8 January Fined $2,500 2016) Compensation order to victim of $10,000 United Kingdom Common assault (9 Community order (London) August 2009) Costs of £500 Unpaid work requirement of 200 hours Cyprus Assault occasioning Fine 300 Cypriot actual bodily harm pounds (9 August 2006) Theft (9 August Fine 750 Cypriot 2006) pounds Assault occasioning Fine 500 Cypriot actual bodily harm pounds (9 August 2006) PAGE 3 OF 23 6. The offence in Australia in January 2016 was dealt with pursuant to the Sentencing Act 1991 (Vic), which provides relevantly as follows: 8 Conviction or non-conviction 1. In exercising its discretion whether or not to record a conviction, a court must have regard to all of the circumstances of the case including – (a) the nature of the offence; and (b) the character and past history of the offender; and (c) the impact of the recording of a conviction on the offender's economic or social well-being or on his or employment prospects." 7. Mr Adenuga described the circumstances of each of these convictions in his Statement of 24 July 2018 and in his oral evidence given to the Tribunal by telephone on 21 August 2018. In his Statement Mr Adenuga wrote as follows in relation to his convictions: 14 “First, on 8 January 2016, I was in Melbourne, Australia. I attended the Colonial Nightclub in Brown Alley (Melbourne) to watch DJ Premier perform. During the course of the evening whilst watching the show from the crowd, I was repeatedly knocked into by an intoxicated young male. I repeatedly asked this male to stop making contact with me, at which point he made a verbal threat towards me. Subsequently, a physical altercation broke out between this male and myself. During the course of this altercation, I threw one punch that made contact with the male's mouth. 15 My assault on this male resulted in me being arrested and charged, but I was released the subsequent day by Victorian police back into the community. As a result, I was able to continue with my Australian tour and perform my last two shows in Melbourne and Brisbane without incident. 16 Although I did not instigate the altercation with the victim, it must be accepted that I should never have thrown a punch at this person. Realising my wrongdoing, I pleaded guilty to the 'recklessly cause injury' offence at the Magistrates' Court of Victoria in Melbourne. 17 Secondly, on 9 August 2009, I was out in the West End of London in England (where I was walking through the streets with a friend talking). It was bustling and unfortunately there was a lot of intoxicated individuals walking around (given that it was late at night). 18 Subsequently, my friend became engaged in a verbal altercation with a random male person on the street. This altercation resulted in name-calling and erupted into a physical fight between the parties. I became involved to break up the fight, but unfortunately became involved in the scuffle between my friend and the random male. 19 As a result of my involvement in the fight between my friend and the victim, I pleaded guilty to common assault in the City of London Magistrates Court. Upon reflection, I should have not physically joined in the altercation between my friend and the victim. At the time, I was frustrated that I could not enjoy a brisk walk with my friend without running into trouble. Nonetheless, I accept PAGE 4 OF 23 my wrongdoing and I am genuinely sorry for becoming involved in this incident. 20 Thirdly, on or about 9 August 2006, I was in Cyprus for purposes related to my music career. During an evening out on a night off after a show, I was preparing to enjoy a social evening at Aiya Napa. I recall that everyone was high-spirited and in a good mood that evening. 21 Whilst outside the venue at Aiya Napa, my friends and I were approached by a large group of males (who levied racial abuse towards us). Subsequently, this led to a physical altercation between these group of men and my group of friends (which included me). During the fight, I broke a chain belonging to a man from the random group that approached us. Subsequently, I threw the chain on the ground. As a result of this conduct, my friends and I got arrested and were put in cells for a few days. I recall this being a scary experience, not appreciating how the local authorities would deal with my friends and I as foreigners. In the end, I had to pay a notable fine. There was no trial for the offences related to this incident, although I acknowledge that I should never have become involved in the physical altercation between the random group of males and my group of friends." 8. In his oral evidence Mr Adenuga described the altercation in Melbourne. He said that he was tired after a performance and had returned to his hotel room. His manager then texted him with information that a particular DJ was playing at a certain nightclub. Mr Adenuga said that he and his manager went to the nightclub, where they encountered the victim. Mr Adenuga said that the victim "was really aggressive" and that he "had grabbed" his friend near his mouth. Mr Adenuga maintained that the victim and his friend "were having a tussle" and "I had to intervene to split them up". Mr Adenuga said "I threw a punch to stop the situation". 9. A Statement of Alleged Facts prepared by police officers in relation to the events of 8 January 2016 read in part as follows: "On the 12:10 AM on 8th of January 2016 the accused was at the Colonial Nightclub in Brown Alley, Melbourne. A verbal altercation ensued between the victim and the accused on the dance floor. It appears that this altercation occurred as a result of a spilt drink or similar.