A Fijian national convicted of a 'stealthing' rape in New South Wales has successfully appealed to remain in Australia as a refugee, just weeks after the Immigration Minister personally rejected his application.
From Conviction to Immigration Detention
The man, identified in court documents as MPGJ, was convicted of sexual intercourse without consent in July last year. The aspiring nurse received a three-year community correction order for the offence, which occurred after he met a man on the LGBTQI dating app Grindr.
The court heard that the victim had consented to sex only on the condition a condom was used. However, during intercourse, MPGJ removed the condom without consent and ejaculated inside the victim. This act, known as 'stealthing', was criminalised in NSW in 2022.
The victim stated he realised what was happening and said, 'You are not wearing a condom'. In a police interview, MPGJ claimed he was 'out of his mind' during the act, saying his 'spirit was not there'. He later apologised, telling officers, 'I didn't mean to do any harm'.
The Minister's Rejection and Tribunal Appeal
MPGJ became an unlawful non-citizen in May 2024 after his student visa expired. He was placed in immigration detention, where he applied for a protection visa. In September, his application was denied by Immigration Minister Tony Burke.
The man then appealed to the Administrative Review Tribunal (ART). In a significant reversal, ART member Shane Evans overturned the Minister's decision, granting MPGJ a protection visa.
Mr Evans ruled that MPGJ 'does not fail the character test' required for the visa. He cited several factors in his decision:
- The offending was deemed 'unplanned', 'not prolonged' and 'not sophisticated' by the sentencing judge.
- There was no evidence the victim suffered physical injury or medical issues from the unprotected sex.
- MPGJ had demonstrated remorse and the crime was 'out of character'.
- He had a positive work report from prison and continued to support his family in Fiji.
Mr Evans concluded there was only a 'minimal or remote risk' of further criminal conduct if MPGJ remained in Australia.
Personal Disclosure and Family Reaction
The tribunal heard personal details about MPGJ's life following his conviction. When in immigration detention, his mother questioned him about his offending. He told her the truth, including the nature of the crime and that he is gay.
MPGJ described this as a 'difficult conversation' given their religious background, but stated his mother was accepting and they remain close. This disclosure was noted as evidence of his contrition and rehabilitation.
The case highlights the complex interplay between criminal law, immigration policy, and ministerial discretion. The Daily Mail has contacted Immigration Minister Tony Burke for comment on the tribunal's decision to overturn his ruling.
