September 16, 2024
A Colombian sex offender who masturbated in front of a teenager and then breached his bail conditions by trying to convince her not to give evidence against him has been allowed to remain in Australia under Labor's Direction 110, sparking calls for a fresh overhaul of the government's immigration policy.
Less than three months after former immigration minister Andrew Giles ditched the controversial Direction 99 in favour of Direction 110, Jorge Ivan Peralta Montes has had his visa reinstated despite spending two years in custody for masturbating in front of a teenager while claiming he mistook her for his wife, and then attempting to pervert the course of justice by trying to talk the girl out of testifying against him.
He was initially accused of intentionally sexually touching the teenager, but the charge was later dismissed.
The Administrative Appeals Tribunal late in August reinstated Mr Montes's visa because of his deep ties to the community through his 11-year-old daughter, and found it was in the "best interests" of the minor children affected by the decision that he remain in Australia.
"The evidence before the tribunal indicates that the applicant has an 11-year-old daughter who is an Australian citizen. The evidence before the tribunal indicates that the applicant, up until the time of his offending in May 2019, was involved in all aspects of his daughter's life," the judgment reads. "He attended all appointments with midwives at Royal Prince Alfred Hospital prior to the birth of his daughter. He was present at her birth.
"He was involved in the selection of a preschool and primary school for his daughter and would regularly drop her to those facilities and pick her up.
"The applicant was also involved in caring for his daughter when she developed childhood asthma and attended hospital and medical appointments with his daughter with respect to her asthma." During the AAT review, Mr Montes was cross-examined about a police fact sheet in which he admitted that he had masturbated in the presence of the teenager and another girl while facing them.
According the fact sheet, he also admitted he did "touch" the teenager while he was masturbating and that he had "bad thoughts".
When asked further questions in relation to his "bad thoughts", the accused stated "maybe I wanted to have sex with her".
When asked about the fact sheet during cross-examination, he "stated that he agreed with what was there, but he disagreed that he touched (the teenager)".
Mr Montes's lawyer, Mark Northam. noted that his client's differing accounts "were based on recollections and that the information obtained by police was done so without an interpreter, which would invite potentially conflicting accounts".
"Mr Northam stated that the tribunal should have serious doubts about the information contained in the police facts sheet with respect to the offending and the evidence contained in the prison reports," the judgment reads.
The AAT found the offending was "serious" but mitigated by "a number of factors", including the fact he was unlikely to reoffend.
"The first of these is that prior to the offending, the applicant had no criminal antecedents in Colombia or Australia," the judgment reads.
"The applicant served an extended custodial sentence as a consequence of the offending and has been in immigration detention since his release from prison.
"The evidence indicates that the applicant has engaged in a number of relevant courses to assist in his rehabilitation." Mr Montes is the third known non-citizen to have his visa reinstated under Direction 110, in a significant test for new Immigration Minister Tony Burke.
Convicted child sex offender Earl Sanchez and a Lebanese man who was part of a large-scale drug operation were also spared deportation under the reworked visa cancellation directions, which came into force in late June.
Opposition home affairs spokesperson James Paterson told The Australian "a foreigner convicted of a grotesque crime like this while on a visa has no place in Australia and should be immediately deported".
"Under Labor's weak Direction 110, which puts ties to the community as a primary consideration, criminals like these get to stay in Australia," he said.
"We warned Labor this would happen when they replaced Andrew Giles's failed Direction 99 with another weak Direction 110.
"Tony Burke should immediately restore the stronger policies of the previous government, which put ties to the community as a secondary consideration." Mr Burke's office was contacted for comment.
