Fijian ‘stealthing’ rapist wins refugee claim
A Fijian man convicted of sick sex act during a Grindr hook-up has won a bid for a refugee visa as he faces “risk of harm” if deported.
A Fijian man convicted of “stealthing” rape during a Grindr hook-up has won a bid for a refugee visa after a tribunal found he “deeply regretted” the conduct.
The aspiring nurse, referred to only as MPGJ in court documents, was rejected for a protection visa by the Immigration Minister in September.
The Minister had previously accepted the 32-year-old’s claims that he faced “risk of harm” if he were removed to Fiji — despite him having returned to his home country on three occasions since first coming to Australia in 2022 — but denied the visa on character grounds.
MPGJ appealed to the Administrative Review Tribunal (ART), which last week overturned the Minister’s decision.
“I consider there is a minimal or remote risk that the Applicant will engage in further criminal conduct should he be allowed to remain in Australia,” ART general member Shane Evans said.
“As such, I am satisfied that the Applicant does not fail the character test.”
MPGJ was convicted of sexual intercourse without consent in the NSW District Court last July and sentenced to a three-year community correction order (CCO).
In July 2023, after breaking up with his long-distance partner in Fiji, MPGJ contacted the victim on LGBT social media platform Grindr.
The man drove to meet him at a Sydney gym and the pair had sex in the victim’s car. The victim told MPGJ he would only have sex if he used a condom.
During intercourse, MPGJ removed the condom and ejaculated inside the victim.
Stealthing — removing a condom during sexual intercourse or failing to wear one without prior consent — was criminalised in NSW in 2022.
“The victim felt that the offender was not wearing a condom,” the judge said in sentencing remarks. “The victim said to the offender, ‘You are not wearing a condom.’”
The victim reported the incident to police, and MPGJ was arrested in September 2023.
“I was totally out of my mind,” he told police, court documents state.
“I knew that I was, I knew what I was doing but my spirit was telling me, was not there. It was just my body that was there. I had sex with him, I didn’t mean to do any harm.
“I apologised for removing the condom without letting him know. When he told me ‘I’ll take this matter to the police’ that’s when I realised that I was wrong. I could have just listened to him and used the condom.
“I could have just respected his will and whatever he wants, it would kept us both safe, could have sex, go home safely.”
The sentencing judge accepted the offending was “unplanned”, “not prolonged” and “not sophisticated” and that there was no evidence of the victim suffering any long-term physical injuries or medical complications.
However, the judge also accepted the prosecutor’s submission that the impact of the offence was more than exposure to disease, and the victim’s sense of personal integrity was violated.
MPGJ, who worked as a cleaner and then in aged care while studying in Australia, spent more than 300 days in custody before he was convicted.
His student visa expired in May last year while he was in custody and he became an unlawful non-citizen.
He was released from custody in August 2024 and placed in immigration detention, where he applied for a bridging visa, which was refused, and then a protection visa, which was also refused.
MPGJ was released from immigration detention in September pending deportation, and the following day applied to the ART for a review of the decision to refuse his protection visa.
In overturning the Minister’s decision, Mr Evans found there was “insufficient evidence to support the Respondent’s contention that there is a low — but more than a minimal or remote chance — that the Applicant would engage in criminal conduct if he were to remain in Australia”.
“From the outset, the Applicant has demonstrated that the offending was out of character and he deeply regretted his conduct,” he said.
“He worked in prison, where he received positive reports from custodial staff, and continued to send money to his family in Fiji.
“When he went to immigration detention his mother asked about his offending and he told her the truth — including the nature of the offending and that he was gay. He said it was a difficult conversation given their religious background, but they are close and she accepted what has happened.
“The Applicant is firmly focused on the future and his career, which he is passionate about.
“I consider that the Applicant’s openness about his sexuality and offending with family and friends indicates he has made significant progress in establishing more mature and intimate relationships with the people in his life.”
In a similar case in July, the ART ruled that a convicted child sex predator from Lebanon who was caught in a vigilante sting attempting to meet a 15-year-old boy on Grindr should be granted a refugee visa due to his “low risk of reoffending” and “contribution to the Australian community”.
In September, the ART also found that a Chinese drug dealer who was jailed after being caught in an undercover sting with 1kg of ice worth $150,000 should be allowed to remain in Australia on a bridging visa because deporting her would cause “hardship” to her boyfriend and his mother.
The ART, established last year to replace the former Administrative Appeals Tribunal (AAT), examines rulings under around 400 Commonwealth laws, including immigration and citizenship, social security payments, child support, the National Disability Insurance Scheme (NDIS) and taxation.
In cases where the ART overturns a visa cancellation or refusal, the Immigration Minister can intervene and uphold the original decision.
Were that to happen, the applicant could then seek judicial review from the federal court.
Immigration Minister Tony Burke has been contacted for comment.
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Originally published as Fijian ‘stealthing’ rapist wins refugee claim
