1832339 (Migration)

[2019] AATA 3142

1832339 (Migration) [2019] AATA 3142 (1 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1832339

MEMBER:Tigiilagi Eteuati

DATE:1 April 2019

PLACE OF DECISION:  Brisbane

DECISION:The decision under review is affirmed.

Statement made on 01 April 2019 at 7:11pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) – Subclass 457 Temporary Business Entry (Class UC) – risk to the health, safety or good order of the Australian community – convicted of offences – wife’s miscarriage – psychologists’ reports of low chance of re-offending – risk is not insignificant and presents a real risk – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(e)(i), 359A, 499, 501CA
Migration Regulations 1994, Schedule 2, r 2.43

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 October 2018 to cancel the Applicant’s Subclass 457 Temporary Business Entry (Class UC) visa under section 116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under section 116(1)(e)(i) of the Act on the basis that the delegate was satisfied that the presence of the Applicant in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The Applicant appeared before the Tribunal on 31 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the Applicant’s wife and from two psychologists who provided reports supporting the Applicant.

4. The Applicant was represented in relation to the review by his registered migration [agent]. The representative attended the Tribunal hearing.

5. For the following reasons, the Tribunal finds that the Minister’s delegate’s decision, to cancel the Applicant’s visa, is the correct decision. Therefore, the Tribunal has concluded that the decision to cancel the Applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under section 116 of the Act, the Minister may cancel a visa if he is satisfied that certain grounds specified in that provision are made out. Relevantly to this case, these include the ground set out in section 116(1)(e)(i) of the Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

7. The Tribunal has carefully considered all of the relevant information on the Department and Tribunal files including the submissions and documents provided to the Tribunal by the Applicant, including the documents provided to the Tribunal after the hearing. On 22 March 2019, the Tribunal sent a letter to the Applicant attaching further material, to which the Applicant may not have had access, and for which the Tribunal indicated that it did not intend to rely. Notwithstanding this, that information was provided to the Applicant to allow him every opportunity to respond to the material if he so wished. The Applicant responded to that letter on 29 March 2019. The Tribunal has not relied on any of this material.

   Does the ground for cancellation exist?

8. A visa may be cancelled under section 116(1)(e) of the Act if the Minister or the Tribunal is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. As mentioned above, in the present case, the delegate was satisfied that the presence of the Applicant in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community.

9. In the current case the delegate based his decision to cancel on the various crimes the Applicant was convicted of, and sentenced for, [in] October 2018.

10. The Tribunal sought information as to the Applicant’s criminal history from [State 1] Police. The documentation returned from [State 1] Police included a [State 1] Court Outcomes document for the Applicant and Court Briefs containing the facts alleged by the police against the Applicant for his crimes. This information was provided to the Applicant prior to the hearing.

11. The Applicant provided the Tribunal with a copy of the sentencing magistrate’s remarks of [date] October 2018. The Applicant also provided the Tribunal with a [State 1] Police Service Court Brief and with the Minister's delegate’s decision cancelling his visa.

12. The Applicant’s offences were helpfully summarised by the Applicant in his written contentions as follows:

    ·[In] October 2018, the Applicant was convicted of 36 counts of observations or recordings in breach of privacy – anal or genital region and sentenced to 6 months imprisonment which was wholly suspended for two years. From the Applicant’s contentions and the sentencing remarks it is clear that these offences occurred between [December] 2017 and [June] 2018 and related to the Applicant filming fellow workmates and other adult females using the toilet facilities at his place of work.

    ·[In] October 2018, the Applicant was convicted of 13 counts of observations or recordings in breach of privacy and four counts of observations or recordings in breach of privacy anal or genital region and sentenced to a two-year probation period. From the Applicant’s contentions and the sentencing remarks it is clear that these offences occurred between [April] 2018 and [May] 2018 and related to the Applicant filming adult woman in changing rooms at a retail store.

    ·[In] October 2018, the Applicant was convicted of two counts of possession of tainted property, a conviction was recorded but no further punishment was given.

13. The Applicant pleaded guilty in relation to all of the offences.

14. In her sentencing remarks the sentencing magistrate stated:

    “Now, the seriousness, of course, of this - these offences, is effectively that - particularly with regard to those offences involving your co-workers, you were employed in a position of trust, with your co-workers, and you were filming co-workers.

    There was a substantial breach of that trust, and I have read all these victim impact statements and it is a very, very concerning - you probably had no idea, probably, because you did not think you would ever be caught, but you were, and once they found out, the impact that it has had on them is substantial. They have had overwhelming feelings of despair and anxiety, and worry. Counselling has been required with regard to some of them. Feelings of anger and shame, shocked and upset, and I am quoting from what they have said in their victim impact statements. This is not my interpretation. One said it was a very, very difficult, in fact, probably the most difficult time in her life. They have indicated they have become less trusting, more cautious. It has caused anxiety and paranoia, and a terrible sense of violation and intrusion. Further embarrassed by the fact that they were interviewed by the police, and the police said to interview - the police had observed the footage and reviewed the footage, I mean as has been submitted, it is a very private part of your life, when you are in the toilet, and it is not something you wish other people to be aware of.

    However, I also take into account the submissions made on your behalf by [a named person], who - and I also take into account those two psychologist reports that have been handed up, which are quite extensive, and I accept that you now understand how serious the consequences of your conduct have been. I note there was a record of interview, you made full admissions, and it is obvious from those reports, that you are obviously deeply remorseful. I have seen you wiping away tears, here today, so to me that is an indication of, certainly, some remorse. It may be an indication of worrying about what is going to happen to you, but I think there is also - there is remorse there.

    Because of your conduct, your wife has lost her job. It is not just you, but her as well. I accept the loss of your child had a negative impact on you, but this does not excuse your actions in any way whatsoever. I note you have also had 14 counselling sessions with a psychologist, which I certainly hope has assisted you, and that is further indication that you are remorseful and you want to deal with this issue. I note that you have undertaken that sexual violent risk test, and there is a low risk of sexual violence, on your part. What concerns me, and I do not know where this comes from, whether it is your background or what, or perhaps there may be, as one of the psychologists indicated, a certain level of autism or something like that there, but you seem to have - you seem to have an impaired capacity for self-insight, but I am assuming from the way you have acted since you have been charged, that that insight there is now, as to the effect of your actions, but it certainly was not there when you were filming people.

    …

    I do not think these are as serious as R v Jones and R v Beasley, because children were not involved, but they are still very serious offences, and I think what makes it more serious, is the fact that it has gone on for an extended period of time, and also it is not a one-off situation, and also it has not ceased, until you have been caught by that - the mother of that 17 year old in [a shop], but - so I am satisfied that a period of imprisonment is appropriate, but I do not intend to impose actual imprisonment, because you are - you appear to be doing well with your rehabilitation.”

15. The Applicant was born in [Country 1]. The Applicant completed his elementary and secondary schooling in [Country 1] and attained a Bachelor of [degree] majoring in [subject] in [Country 1] in 2008. He met his wife while studying at university. He began a master's degree [and] completed two or three years towards that degree before ceasing his enrolment. He did so because he obtained employment in [Country 2]. The Applicant and his wife travelled to [Country 2] in 2012. He was employed there as [a health professional].

16. On 21 May 2016, the Applicant’s wife arrived in Australia as the holder of a Subclass 457 visa. It appears that after the applicant was charged, his wife was granted a Subclass 482 visa. The Applicant remained in [Country 2] to save money for their upcoming wedding. The couple were married in December 2016 in [Country 1]. The Applicant first arrived in Australia as a holder of a Subclass 457 visa [in] April 2017, shortly before his [birthday]. He was granted his visa on the basis of being the spouse of the holder of a Subclass 457 visa. The Applicant commenced employment with the company, which also employed his wife, as a [health professional]. The company was an NDIS approved service [provider].

17. The Applicant indicated that the couple had migrated to Australia as they wanted to eventually become permanent residents, to settle here and raise a family.

18. The Applicant indicated that his wife fell pregnant in September 2017 but that she miscarried in November 2017. He indicated that this had a profound impact on both he and his wife.

19. The Applicant indicated that he and his wife bought Apple watches for each other in late November 2017. The Applicant indicated that he had always had a fascination with technology. He said that whenever he obtained a new piece of technology he would study it carefully to learn all of the gadget’s capabilities.

20. The Applicant indicated that he had been watching videos online when he clicked on a pop-up which took him to a pornographic website. He said that there were videos on the website which had been recorded by cameras hidden in women’s toilets. He indicated that, after the first time he accessed one of these videos, he returned to view these videos on a number of occasions. He indicated that he viewed these videos between one and 10 times.

21. The Applicant indicated that he had no sexual interest in the videos, but rather was fascinated with the method by which the footage of women in toilets was obtained. The Applicant said that he had discovered that there was a pairing feature on his Apple watch which would allow him to activate the video recording function on his iPhone remotely through his Apple watch. He said that he began leaving his iPhone in a bum bag in toilet cubicles at his place of employment. He said that he would stand outside the toilet area and view people using the toilet from his Apple watch. He said that he would record video of people using the toilet from his Apple watch. He said that he transferred all of the videos from his iPhone to his computer.

22. The Applicant admitted that he was sexually interested in adult women. He said that he had accessed pornography online in Australia but that he had never done so for the purpose of sexual gratification. The Applicant conceded that of the 53 videos that he had recorded and saved and for which he was convicted, all of the videos were of adult women. However, the Applicant said that he had filmed a male colleague on one occasion but that this colleague has remained the Applicant’s friend and had declined to “press charges” against the Applicant.

23. Thirty-six of the recordings that the Applicant made were of adult women using the toilet at his place of work. These included videos of his female work colleagues and female parents of children attending his work for treatment. Seventeen of the recordings that the Applicant made were of adult women in changing rooms at a retail store in a mall. Forty of the recordings involved video recording of the victims’ anal or genital regions.

24. The Applicant insisted that he hadn’t selected adult women to record. He said that it was pure coincidence that all 53 recordings happened to be of adult women. He repeatedly referred to the fact that one of the recordings, for which he was not convicted, was of a male work colleague. The Applicant explained that most of his work colleagues were female and that this explained why all of the people, bar one, who were recorded at his workplace were female. The Applicant admitted that male parents of children used the toilet as did children. He could not offer an explanation, other than coincidence, as to why he had no recordings of men (other than his friend) or children.

25. In addition, the Applicant could not explain why all of the recordings he made in changing rooms in the retail store in the mall were recordings of adult women. The Applicant conceded that the changing rooms had been unisex changing rooms and that men shopped at the retail store.

26. The Applicant insisted repeatedly that there was no sexual motivation for his creating and storing the videos of adult woman in various states of undress in toilets and changing rooms, where in the majority of videos the women’s anal and genital region were caught on video.

27. The Applicant said that he began recording these videos as a form of escape from the trauma that he suffered as a result of his wife’s miscarriage. He said that he first started recording the videos as he was fascinated by the recording functions of his Apple watch and iPhone and wished to recreate the pornographic videos of women using toilets. The Tribunal asked the Applicant why he didn’t cease making videos after the first recording when he successfully recreated the footage he had seen on pornographic websites. The Applicant said that he discovered that the Apple watch had additional features of being able to zoom in to enlarge what was being recorded and a slow motion feature which he wished to test. The Applicant offered no reasonable explanation as to why he failed to stop making the recordings after he had used the zoom and slow motion feature. He made 53 videos and was continuing to do so up until his arrest at the retail store. The Applicant asserted that he had made up his mind, prior to being arrested, that he would desist from making further videos as he was “getting nothing out of it.”

28. The Applicant became very emotional while he was insisting that he did not make the recordings for any sexual reason. He said that, on departing court after sentencing, [he] whether he was a pervert. The Applicant went so far as to say that, at the time that he was recording adult women in toilet cubicles and changing rooms, he did not realise that any of this activity was wrong. The Tribunal asked why, if this were the case, he did not share his new found interest in filming naked women with his wife or with the many other women at his work and at the retail shop. The Tribunal asked the Applicant why he did not show these women the footage that he had taken. The Applicant was unable to provide the Tribunal with meaningful answers to these questions.

29. The Tribunal notes that the Applicant’s claim that, at the time of offending, he did not know that what he was doing was wrong, appears not to have been accepted by the sentencing magistrate as she stated: “you did not think you would ever be caught.” This suggests that the sentencing magistrate thought that the Applicant knew that what he was doing was wrong but that he did not think that he would ever be caught.

30. The Applicant indicated that his wife had told him that if his visa remained cancelled and he had to return to [Country 1], she would remain in Australia and continue with her employment here. He indicated that this was also his preference as he did not want his wife to have to give up her opportunities in Australia because of his actions. In addition, he said that the economy in [Country 1] was not doing well at present.

31. The Applicant indicated that, if he had to return to [Country 1], both he and his wife would face severe difficulties. He said that his wife could not leave Australia because she held a visa and she had a work contract. He said that the couple were living on his wife’s salary but that all of her money had gone into his psychological treatment and legal bills. He said that the economy in [Country 1] was not doing well at present and that if his wife decided to move back to [Country 1] he was concerned that very little work was available for [their line of work] and that she may struggle to find employment.

32. The Applicant indicated that the offences that he committed and the consequences of those offences had taken an emotional toll on his wife. He said that she did not feel [safe]. [Details deleted]. He said that his wife was anxious about being in public places. The Applicant said that his wife discovered that the glass window on the balcony of her [City 1] apartment was broken. The applicant said that his wife had been concerned that someone had attempted to break into her apartment.

33. The Applicant said that, if he were allowed to remain in Australia, he wished to live in [City 1] with his wife where he could protect her and support her. He said that he understood that he would not be able to obtain employment as a [health professional] in Australia because of his offences. He indicated that he had an interest in [another industry] and hoped to undertake studies in Australia so that he could work in [that] industry here.

34. The Applicant indicated that the couple had lived apart previously when his wife came to Australia in May 2016 and that he had remained in [Country 2] until joining her in Australia in April 2017. He said that the time part on that occasion was very difficult for both of them and that it would be very difficult for them to live apart indefinitely. He said that his understanding was that, if is a visa remained cancelled, he would not be able to return to Australia for several years and that it may be difficult for him to obtain a visa in the future due to his criminal history here.

1. The Applicant indicated that he was concerned that he would be isolated if he had to return to [Country 1]. He said that [he] may be perceived negatively in [Country 1] on his return. He said that he had uncles in [Country 1], with whom he had previously had a good relationship. He indicated that he had helped his uncles financially in the past. The Applicant said that he not spoken to his uncles since he had been charged and was unsure whether his uncles would be willing or able to provide him with support if he returned to [Country 1].

2. The Applicant said that it would be difficult for him to move to where his sister lived in [Country 1], as she lived in a rural area with a small population and few job opportunities. The Applicant said that his sister was not in a financial position to assist him financially and there was no room in her house for him to live with her. He said that he was also concerned that, because his sister lived in a small rural area, people may find out about his criminal history.

3. The Applicant said that he may be able to live in an area in [Country 1] where no one knew him but that this would be difficult for him as the economy is poor and potential employers may find out about his [offences]. He said that, if he was unable to find employment in [Country 1], he would have to rely on his wife’s income and support indefinitely. He said that this would be extremely difficult for his wife as she was already struggling financially and would not be able to afford to support both of them.

4. The Applicant said that he would not be able to obtain welfare benefits in [Country 1] as he had ceased contributions to the Social Security system when he left [Country 1] in 2012.

5. The Applicant said that, after he had been charged, he and his wife began family counselling sessions. He said that he also began seeing a psychologist regularly in relation to his offending. At the time of his sentencing, the sentencing magistrate indicated that the Applicant had attended 14 counselling sessions with a psychologist.

6. The Applicant indicated that, if his visa had not been cancelled, it was due to expire in April 2020. The Applicant indicated that he understood that he had never had a right to remain permanently in Australia. The Applicant also acknowledged that he understood that even if the decision to cancel his visa were set aside, he may still be refused a visa in April 2020 on the basis of his criminal history. In addition, the Applicant acknowledged that, if his visa remained cancelled and he was barred from applying for another visa for some three years, even after that period of three years any future visa application may be refused because of his criminal history.

7. The Tribunal asked the Applicant whether there was any reason why he and his wife could not live together in a country other than Australia or [Country 1]. The Applicant did not respond.

8. The Tribunal had before it statements from the Applicant’s wife and she gave evidence before the Tribunal.

9. The Applicant’s wife said that after their former employer was made aware of the Applicant’s offending in June 2018, in July 2018 the company told her that she could no longer remain with the company and that she could either quit her job or that her employment there would be terminated. The Applicant’s wife indicated that after she quit her job with the company, she applied for other [health professional] jobs throughout Australia and was interviewed for other jobs in [other cities] and [City 1]. She accepted a position in [City 1] and moved there in August 2018. The Applicant has remained in [State 1] as he has been legally required to do so. He was detained in immigration detention in early November 2018. The Applicant’s wife indicated that she would visit [State 1] about twice a month when he was in the community prior to being sentenced. The Applicant's wife said that she maintained contact with the Applicant through Messenger and that they would speak by telephone every evening. She said that she was unable to attend the Applicant’s sentencing hearing as she had just started a new job and that the couple was reliant on her salary. She said that, after the Applicant was detained in immigration detention in early November, she would visit him every month. She said that during these trips she would visit him in immigration detention two or three times during each trip.

10. The Applicant’s wife said that the Applicant was a loving and caring husband. She said that he had not shared his feelings about her miscarriage as he did not want to burden her. She said that he distracted himself with other things as a coping mechanism and at the time of his offending his judgement was clouded and he wasn’t insightful as to the appropriateness of his behaviour.

11. The Applicant’s wife indicated that, since the Applicant had been charged with offences, the couple had been attending counselling sessions and the Applicant had been meeting regularly with a psychologist in relation to his offending behaviour. She said that the Applicant had expressed great remorse and was very ashamed of his actions. She said that he had written letters to the people at their former workplace and the victims of his offences expressing his apologies and regret for what he had done.

12. The Applicant’s wife indicated that she believed that the Applicant would not reoffend. She said that the last six months had impacted on him emotionally, that he was [traumatised], he never wanted to be re-detained, and was afraid of being deported and thus lose the chance of raising a family in Australia. She said that, if the Applicant was allowed to remain in Australia, he was planning start doing volunteer work and then to move into [another] industry after completing studies in that area. She said that the Applicant wished to publish a book and [website].

13. The Applicant’s wife indicated that she believed that the Applicant would have to remain in [State 1] for the duration of his probation period which was two years from sentencing in October 2018. This accords with the sentencing magistrate’s remarks in relation to the conditions of the Applicant’s probation :

    “During the period of that probation order, you must not commit any further offences. You must report to, and receive visits, from your probation officer. You must undertake any treatment, counselling, or programs as directed by your probation officer. You must advise your probation officer, within two business days, of any change of address or employment, and you must not leave or stay out of [State 1], without the prior approval of your probation officer. You must undertake any reasonable expectation of your probation officer - any reasonable requirement.”

14. The Applicant’s wife said that she could continue to visit the Applicant and communicate with him by electronic means and over the telephone. She indicated that, if he had to return to [Country 1], she would be able to continue to communicate with him by those means but she would only be able to visit [Country 1] once a year due to financial constraints and the limited leave that she had from her work. The Applicant’s wife indicated that it would cost approximately twice as much in airfares to visit the Applicant in [Country 1] as it would to visit him in [State 1]. She said that she might be able to visit the Applicant once a year in [Country 1]. She said that, if the Applicant were to remain in Australia, it would be easier for her to visit him on weekends.

15. The Applicant’s wife indicated that, if the Applicant were allowed to stay, she would support him including paying for his studies to pursue a career in [another] industry.

16. The Applicant’s wife indicated that she would be devastated if the Applicant had to depart Australia. The Applicant’s wife said that she would not relocate to [Country 1] because she had an employment contract with a current employer until the expiry of her visa in April 2020.

17. The Applicant’s wife said that she was traumatised by the events following the Applicant’s offending and had experienced some panic attacks. She said that she would struggle greatly from a financial perspective as she would have to pay the debts that the couple owed, provide for the Applicant financially and sustain herself in Australia.

18. In his written submissions and through his representative, the Applicant indicated that his wife was currently the holder of a Subclass 482 visa. He accepted that there was no direct pathway to permanent residence for holders of such visas. However, he argued that his wife had good prospects of being granted a permanent visa, or being granted another temporary visa which had a direct pathway to permanent residence. The Applicant admitted that his wife had not, as yet, applied for a permanent visa.

19. The Applicant’s wife indicated that she was concerned for the Applicant’s mental well-being if he had to return to [Country 1]. She said that people in his home area may be aware of his offending [and] that they would judge him for his offending rather than focus on the good deeds he had done in the past. She said that, while the Applicant’s father lived in [another country], he would often visit [Country 1] and would belittle the Applicant for his offending. She said that if the Applicant were allowed to remain in Australia, she would be able to support [him]. She said that the only support that he would receive in [Country 1] was from a sister who had her own family there and her own hardships.

20. The Applicant provided the Tribunal with a copy of a psychological report prepared by [Mr A], a psychologist, which appears to have been made to assess the Applicant’s risk of reoffending for the purposes of sentencing. [Mr A] concluded that the Applicant presented as a low-risk of future offending. In coming to that conclusion [Mr A] stated:

    “It is my opinion that the Applicant’s offending behaviour reflected the confluence of pertinent factors including: psychological distress resulting from his wife’s failed pregnancy; maladaptive coping strategies relevant to the aforementioned distress; and personality/cognitive features that reflect ASD-type traits (broad autism phenotype) including social naivety, and impaired capacity for self-insight. The nature the Applicant’s offending, and his explanation for the same, provide indication that he maintained little grasp of the gravity of his behaviour, including the acute breach of trust associated with covertly recording his former colleagues. The Applicant stated, of his offending behaviour: “even myself, I don’t know why I did that.”

21. [Mr A] diagnosed the Applicant with adjustment disorder which he said “emanated in response to the distress associated with his wife’s miscarriage.”

22. The Tribunal also received copies of two assessments from [Ms B], a clinical psychologist who had been treating the Applicant following his offending. [Ms B] also gave evidence at the hearing. Her assessment was also that the Applicant presented a low-risk of reoffending. [Ms B] believed the Applicant’s assertion that the offending was not sexually motivated, believed it was a coincidence that all of the videos for which the Applicant was convicted were of adult women, and that he had made video recordings of the women as a result of his “curiosity about gadgets” in order to distract himself from the grief caused by his wife’s miscarriage.

23. The Tribunal also received a report prepared by [Dr C], a psychologist, regarding the Applicant’s risk of reoffending, prepared for the purposes of these proceedings. [Dr C] gave evidence at the hearing. In relation to the risk of reoffending, [Dr C] assessed that the Applicant “can be considered in the low risk category, and thus, does not present an elevated risk to the Australian community”. Like [Ms B], [Dr C] believed the Applicant’s assertion that the offending was not sexually motivated, believed it was a coincidence that all of the videos for which the Applicant was convicted were of adult women, and that he had made video recordings of the women as a result of his “fixation on technology” as a coping mechanism for the psychological distress caused as a result of his wife’s miscarriage. However, [Dr C] stated:

    “It is also noteworthy that depression and anxiety are also quite common, comorbid conditions with voyeuristic tendencies (DSM-V, 2013), although given the relatively low prevalence of such tendencies among the population, little scientific research is focused on either the aetiology or necessary treatment.”

24. The Tribunal asked [Dr C] why he, the Applicant and other psychologists had referred to the offending as not being sexually motivated. He said:

    “What we are assessing is sexual deviancy and sexual deviancy would be the primary predictor, things associated with sexual deviancy would be the primary predictor of recidivism.”

25. However, this assessment appeared to conflict with his later evidence. The Tribunal asked [Dr C] to re-confirm that, if the Applicant had lied to [Dr C] about there being no sexual motivation behind his offences, and if the offences had been sexually motivated, whether this would increase his assessment of the risk of reoffending. [Dr C] indicated that there are “so many better predictors of sexual reoffending” than sexual deviancy. He said that even if the Applicant had committed the offences for his own sexual gratification, his assessment would still be that the Applicant presented as a low risk of re-offending.

26. [Dr C] said that, on the basis of what the Applicant had told him, he considered there were no indicators of sexual deviancy with the Applicant. He also considered that there were a number of protective factors which lessened the risk of re-offending such as that the Applicant maintained a stable relationship and that he had functioned well in his employment.

27. The Tribunal has some real concerns about the findings of the various psychologists, that the Applicant’s offences were not committed for the Applicants sexual gratification. First, all of the assessments depended very heavily on the Applicant self-reporting. The Applicant is a [health professional] and may have been aware of what to tell the psychologists in order to obtain an assessment that he presented a low risk of reoffending. This was put to both [Dr C] and [Ms B]. Both of them believed that the Applicant had told them the truth in relation to the lack of sexual motivation for the offending. Both of them indicated that the offending was committed because of the Applicant’s fascination with technology and not for any sexual reason.

28. Both [Dr C] and [Ms B] believed that the Applicant offended as a way of distracting himself from the trauma he experienced as a result of his wife’s miscarriage. Both of them appeared to assert that the applicant did not select his victims on the basis that they were women. They both indicated that the Applicant had told them all of the staff at his workplace were female save for one friend whom they said was also recorded.

29. The first thing to say about this is that it does not explain the 17 video recordings, all of adult women, made by the Applicant in the changing room of a retail store in a mall. The second thing to say is that, it was not disputed that the toilet at the Applicant’s place of work was also used by the children being treated there and their parents. Although there were videos recorded of adult female parents of those children, there were no videos of adult male parents, or of the children.

30. The reason why a proper determination of whether the Applicant’s offences were sexually motivated is significant is because of [Dr C]’s initial statement above to the effect that sexual deviancy or things associated with sexual deviancy are the primary predictor of recidivism.

31. While the Tribunal maintains real concerns about the conclusions reached by [Dr C] and [Ms B], the Tribunal is willing to accept their evidence that the Applicant presents a low risk of reoffending. In reaching this conclusion, the Tribunal has considered all of the Applicant’s evidence including the statements by him and his wife, the relapse prevention plan he submitted to the Tribunal, the various letters of support provided by the Applicant’s friends and family, various evidence provided by psychologists, and the sentencing magistrate’s remarks.

    Post hearing submissions

32. On 22 March 2019, the Tribunal sent a letter to the Applicant in accordance with section 359A of the Act, giving the Applicant a formal opportunity to comment or respond to information returned on summons by the [State 1] Police Service. Specifically, the information provided for comment was a [State 1] Court Outcomes document for the Applicant and Court Briefs containing the facts alleged by the police against the Applicant for his crimes. The Tribunal notes that this information was also provided to the Applicant prior to the hearing.

33. On 22 March 2019, the Tribunal sent a letter to the Applicant attaching further material, to which the Applicant may not have had access, and for which the Tribunal indicated that it did not intend to rely. Notwithstanding this, that information was provided to the Applicant to allow him every opportunity to respond to the material if he so wished.

34. On 24 March 2019, the Tribunal received a request for the audio recording of the hearing from the Applicant’s representative. On 25 March 2019, the Tribunal sent the Applicant’s representative a copy of the audio recording of the hearing.

35. On 29 March 2019, the Tribunal received a letter from the Applicant’s representative. That letter did not provide any direct comment or response regarding the matters set out in the two letters from the Tribunal on 22 March 2019. Rather, the letter contained further submissions in relation to exchanges between the Tribunal Member and the Applicant during the hearing. The Tribunal notes that it had not invited the Applicant to make further written submissions regarding the exchanges between the Tribunal Member and the Applicant during the hearing. To be clear, an invitation to comment or respond to information put to an Applicant, including under section 359A, is not an invitation for an Applicant to conduct a careful analysis of the audio recording of the hearing and to make further uninvited submissions about exchanges which occurred during the hearing.

36. Further, the exchanges during the hearing referred to by the Applicant, including comments or questions by the Tribunal, did not in any way represent findings or reasoning of the Tribunal. Rather, the Tribunal was asking questions, and putting certain propositions to the Applicant in the interests of fairness, to give the Applicant an opportunity to address potential concerns with the Applicant’s case, or potential reasoning which the Tribunal may employ in coming to a decision.

37. Notwithstanding these concerns, the Tribunal has carefully considered the Applicant’s post hearing submissions.

38. The letter of 21 March 2019 from the Applicant contains an overarching submission supported by four submissions.

39. The overarching submission is that the fact that the Applicant held a temporary visa, rather than a permanent visa, is not a relevant consideration and is not adverse to the Applicant’s case.

40. The first submission is essentially that the power in section 116(1)(e) can only be exercised in relation to a non-citizen in Australia who holds a temporary visa. That is, the power is not available to cancel a visa of a non-citizen in Australia who holds a permanent visa. The applicant’s argument was that this fact precluded consideration of the temporary nature of the applicant’s formerly held visa in the Tribunal’s consideration of the exercise of the discretion to cancel the visa.

41. The second submission is that “the proposition of lower tolerance to temporary visa holders is not expressly stated in law or policy as a factor to be weighed in the decision.” The Applicant asserts that, had such a consideration been contemplated, it would have been included in the Departmental policy guidelines relating to cancellation under section 116 of the Act.

1. The letter stated:

   “We note the Minister confirmed in the Second Reading Speech that the 2014 amendments to s116 are intended to introduce lower thresholds for cancelling temporary visas, reflective of the "lower tolerance for behavioural concerns in the temporary visa context".¹ The Minister goes on to state that such persons will be eligible for visa cancellation even where they pose a low level of risk. These comments are clearly directed to the first limb of s116(1)(e), namely whether the ground for cancellation has been made out and deliberately lowering the risk threshold for temporary visa holders.”

2. The third submission is that “if there is to be an assessment of the community's expectations or values when deciding whether to cancel under s116(1)(e), this necessitates attention to other salient aspects of [the Applicant’s] circumstances.” The letter went on to indicate that such aspects included that the Applicant’s offending was “less serious than that which is covered by s501 of the Act, his extensive rehabilitative efforts and that his wife makes valuable contributions to the Australian community through her employment as a behaviour support practitioner working with disabled children.”

3. The fourth and final submission, that the Tribunal’s suggestion during the hearing that whether the decision is affirmed or not “there is still going to be an assessment at least in April next year… into your character” implies that this may count against the Applicant, “as the setting aside of the cancellation would only allow him to remain in the country for a further 14 months.” The Applicant submitted that it was “too speculative to infer that a decision in [the Applicant’s] favour may have limited value as it only allows him to stay in Australia for a temporary period.”

4. The Applicant submitted that the fact that the Applicant’s character would be assessed in the future was to the community’s benefit in that it provided an important check on his risk and conduct. The letter stated

   “Should [the Applicant] reoffend in any manner, he is well aware that he will likely face a further visa cancellation and/or refusal and removal from Australia. Relatedly, we note the remarks of Deputy President Redfern in Burton [2018] AATA 4220 that the risk posed by the Applicant was ameliorated by the mandatory cancellation power that was likely to be available to the Minister if the Applicant was convicted.”

5. The Tribunal will address the consideration of the exercise of the discretion to cancel below. However, the Tribunal makes the following comments in relation to the Applicant’s post hearing submissions.

6. The fact that that the power in section 116(1)(e) can only be exercised in relation to a non-citizen in Australia who holds a temporary visa does not preclude the Tribunal from considering the implications of an applicant holding a temporary visa in the exercise of the discretion to cancel.

7. As will be seen in the reasons below, one of the considerations which the Tribunal considers is relevant to the exercise of the discretion is the extent of any hardship to the Applicant or his family members which would result from the cancellation of the Applicant’s visa. The nature of the visa held by an applicant will often be relevant to that consideration. That is because what the applicant will lose if their visa was cancelled may be substantially different depending on whether the visa is a temporary or permanent one, or a temporary visa allowing an applicant to remain permanently. The last mentioned category arises where a non-citizen holds a Class TY Subclass 444 Special Category visa, which is the most common visa held by New Zealand citizens in Australia. A Subclass 444 visa effectively allows its holder to remain in Australia permanently. However, technically, the visa is classed as a temporary visa, therefore allowing the visa to be cancelled under section 116 of the Act.

8. The visa that the Applicant held in the current case was a Subclass 457 visa. If the visa had not been cancelled, the Applicant would have been permitted to remain in Australia until April 2020. After that time, the Applicant may, or may not, have been granted a further visa to reside in Australia. His visa did not allow him to remain permanently or indefinitely in Australia as would be the case if he held a Subclass 444 visa.

9. The relevance of the Applicant holding a temporary visa in relation to the consideration of hardship is that the result of cancellation would be that the Applicant would lose the right to remain in Australia until April 2020 and the chance of being granted another visa at that time. This is to be contrasted with the situation of a person who held a Subclass 444 temporary visa. The hardship that the holder of a Subclass 444 visa would face would be that they would lose the right to remain in Australia permanently or indefinitely if they did not depart. The Tribunal considers that the nature of the visa held by an Applicant is clearly relevant to the hardship that the Applicant would face if their visa were to be cancelled.

10. Another way in which consideration of the nature of a visa held by an Applicant may be relevant is that it may be relevant to the consideration of the protection of the Australian community. While the protection of the Australian community is not a matter which has specifically been identified in the Departmental policy guidelines as a relevant consideration, the Tribunal considers the protection of the Australian community is always relevant to the exercise of discretion to cancel a visa where the visa has been cancelled as a result of offences that the visa holder has committed against members of the Australian community.

11. If an applicant held a permanent visa, or a temporary visa which provides a right of indefinite residence, such as a Subclass 444 visa, the opportunity for the applicant to offend may be greater than for the holder of a temporary visa permitting a limited stay in Australia. That is because, subject to the grant of a further visa, a temporary visa holder will only have a limited period of stay in Australia and therefore will only be able to offend during that period. Conversely, the holder of a permanent visa, or the holder of a temporary visa with indefinite stay, will be able to remain indefinitely and therefore offend during any period during that indefinite stay. This illustrates that, in some cases, it may be that the fact that an applicant holds a temporary visa may lessen the overall risk of the applicant offending again in Australia. This may be especially so where the visa proposed to be cancelled is a bridging visa which would usually allow for a very limited stay.

12. The Tribunal acknowledges that Departmental policy does not specifically suggest that the nature of the person’s visa should be taken into account in the exercise of discretion to cancel under section 116 of the Act. The first thing to say about this is that the Departmental policy is not specific to any of the particular grounds for cancellation under section 116 of the Act. A visa may be cancelled under section 116 for a variety of reasons. These include cancellation on the basis that an Applicant may pose a risk to the health or safety of members of the community, the Applicant has failed to comply with the conditions of their visa, a student visa holder is not a genuine student, a decision-maker cannot be satisfied as to the person’s identity and if the visa holder has provided false information to immigration authorities. The grounds for cancellation are also increased further by section 116(1)(g) when read with regulation 2.43. Section 16(1)(g) provides for cancellation if prescribed grounds exist for cancellation and regulation 2.43 prescribes numerous additional cancellation grounds.

13. Given the numerous diverse grounds upon which a visa may be cancelled under section 116 of the Act, it is not surprising that the Departmental policy guidelines, as to the matters which it suggests decision-makers should consider in cancelling visas under section 116, are expressed in very general terms.

14. Further, as the Applicant has pointed out, for non-citizens in Australia, section 116 only allows for the cancellation of temporary visas. In those circumstances, it would be unnecessary for the policy guidelines to specifically attribute weight to the nature of the visa held by a non-citizen in Australia.

15. In any event, as the Applicant has pointed out, “the Minister confirmed in the Second Reading Speech that the 2014 amendments to s116 are intended to introduce lower thresholds for cancelling temporary visas, reflective of the “lower tolerance for behavioural concerns in the temporary visa context.” The Minister goes on to state that such persons will be eligible for visa cancellation even where they pose a low level of risk.” The Applicant asserts that these comments are only directed to whether the discretion in section 116 of the Act is enlivened, the suggestion being that the temporary nature of the visa held by a non-citizen is irrelevant to the question of whether the discretion to cancel should be exercised.

16. The Tribunal notes that the Minister’s comments in the second reading speech, cited by the Applicant, are consistent with governmental policy in relation to the cancellation of visas under section 501 of the Act. This is reflected in the principle in sub-paragraph 6.3(6) of Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction 79).

17. Direction 79 is a direction made pursuant to section 499 of the Act to guide decision makers making decisions under section 501 and section 501CA of the Act. Paragraph 6.3(6) of Direction 79 provides:

    “Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.”

18. The Tribunal notes that visa cancellation under section 501 of the Act is available for the cancellation of both temporary and permanent visas.

19. Given the obvious governmental policy position reflected in both the Minister’s Second Reading Speech, and Direction 79 as to the “lower tolerance for behavioural concerns in the temporary visa context”, the Tribunal considers that it is nonsensical that it would be impermissible for a decision maker to consider the temporary nature of the visa held by an Applicant in the exercise of discretion to cancel that visa under section 116(1)(e) of the Act.

20. In any event, the Tribunal does not rely directly on the government’s policy position regarding lower tolerance for behavioural concerns for the holders of temporary visas. Rather, as indicated above, the Tribunal considers that, in this case, the fact that the Applicant held a temporary visa is relevant to the consideration of hardship, to the Applicant and his wife, of a decision to cancel his visa.

21. Similarly, while there is no specific mention in the Departmental policy guidelines of consideration of the expectations or values of the Australian community in the exercise of the discretion to cancel a visa under section 116 of the Act, the Tribunal considers that the expectations of the Australian community are a permissible consideration in the exercise of the discretion to cancel a visa under section 116 of the Act. The Applicant appears to acknowledge this in his third submission above where he states that a number of factors, which reflect positively on the Applicant, should be considered in assessing the expectations of the Australian community.

22. While the Tribunal considers that an assessment of the expectations of the Australian community is not impermissible in considering the exercise of the discretion in section 116, the Tribunal has not focused on the expectations of the Australian community as a specific consideration. However, the Tribunal has considered positive aspects of the Applicant’s character and the matters set out in the post hearing submissions as “salient aspects of [the Applicant’s] circumstances” in considering the exercise of the discretion to cancel.

23. The fourth submission by the Applicant is essentially that the Tribunal should not rely on the fact that the Applicant may not be granted a visa to remain in Australia after April 2020 if he were allowed to remain by the Tribunal. The submission concludes that it is “too speculative to infer the decision in [the Applicant’s] favour may have limited value as it only allows him to stay in Australia for a temporary period.”

24. The exercise of the discretion in section 116(1)(e) of the Act in these types of cases, where an Applicant has offended against members of the Australian community, will often necessitate speculation as to the likelihood of future occurrences. Obviously, the Tribunal must consider the risk that an Applicant will reoffend in the future and the seriousness of the harm to members of the Australian community should the Applicant reoffend in the future.

100.   Similarly, a consideration of the possibility that the Applicant may not be granted another visa because of previous offences is relevant to the consideration of the hardship that the Applicant may face if their visa was cancelled. While it is no means certain as to how a future decision maker will decide a visa application, it is fair to say that there is some increased likelihood that an Applicant will be refused a visa on character grounds because of offences they have committed in Australia in the past. That being the case, consideration of the increased likelihood that an applicant will be refused a visa in the future is relevant to consideration of the hardship that an Applicant will face if their visa was cancelled. If it were certain that the Applicant would be granted another visa if the cancellation decision were set aside, then affirmation of the cancellation of his visa would cause the Applicant greater hardship as he would potentially lose the benefit of remaining in Australia for the period allowed by the new visa. However, if the Applicant’s chances of being granted another visa have been lessened because of the offences he has committed, what he loses if the visa remains cancelled is a somewhat lessened chance that he will be granted another visa.

101.   The Applicant submitted that the fact that the Applicant’s character would be assessed in the future was to the community’s benefit in that it provided an important check on his risk and conduct. The Applicant cited remarks by Deputy President Redfern “in Burton [2018] AATA 4220 that the risk posed by the Applicant was ameliorated by the mandatory cancellation power that was likely to be available to the Minister if the Applicant was convicted.”

102.   The Tribunal agrees that any ongoing risk may be ameliorated by the availability of cancellation powers should the Applicant reoffend. That is because, if the Applicant were to reoffend, his visa could be cancelled, therefore removing any further opportunity for the Applicant to offend. The availability of a cancellation power if the Applicant were to reoffend may also have a deterrent effect on the Applicant reoffending. However, any such deterrent effect is difficult to ascertain, and putting aside any deterrent effect presented by visa cancellation provisions which have not prevented the Applicant from offending previously, there is an obvious problem with the argument advanced by the Applicant. While acknowledging that the Applicant’s visa may be cancelled if he reoffends in the future, that would most occur if the Applicant had again offended against members of the Australian community. In other words, while the Tribunal accepts that the Applicant’s visa may be cancelled if he reoffends, that would not prevent the harm to the victims of his reoffending. Indeed, setting aside the cancellation of the Applicant’s visa would present him an opportunity to commit further offences against members of the Australian community.

Is the cancellation power in section 116(1)(e)(i) enlivened?

103. It appears that the threshold in section 116(1)(e)(i) is a particularly low one and that it is sufficient for the cancellation power to be enlivened that the presence of the Applicant in Australia is or ‘may’ be a ‘risk’, or would or ‘might be’, a ‘risk’ to the health or safety of the Australian community or a segment of the Australian community.

104.   Notwithstanding the apparent low threshold for enlivening the cancellation power, the Tribunal considers that the mere possibility that a person may or might be a risk to the health, safety or good order of the Australian community or a segment of the Australian community, absent any compelling evidence to support that assessment, is insufficient to enliven the cancellation power. It could be said that any given person in the community ‘may’ or ‘might be’ a risk to the health, safety or good order of the Australian community or a segment of the Australian community, but without any compelling evidence to support even the possibility of an actual risk, the cancellation power will not be enlivened.

105.   The Tribunal considers that in the current case, it is clear from the evidence that the Applicant may or might be a risk to the health and safety of the Australian community or a segment of the Australian community, that being adult women. Although the Tribunal is willing to accept the assessment of the psychologists that the Applicant presents a low risk of reoffending, the Tribunal considers that the risk that the Applicant will reoffend is not insignificant and is a real risk.

106.   There is no doubt that the offences that the Applicant committed were serious and that they had a profound negative impact on the victims of the offending. The sentencing magistrate described the Applicant’s offences as “very serious offences” and described the impact of the applicant’s offending on his victims as follows:

“...once they found out, the impact that it has had on them is substantial. There have had overwhelming feelings of despair and anxiety, and worry. Counselling has been required with regard to some of them. Feelings of anger and shame, shocked and upset, and I am quoting from what they have said in their victim impact statements. This is not my interpretation. One said it was a very, very difficult, in fact, probably the most difficult time in her life. They have indicated they have become less trusting, more cautious. It has caused anxiety and paranoia, and a terrible sense of violation and intrusion. Further embarrassed by the fact that they were interviewed by the police, and the police said to interview - the police had observed the footage and reviewed the footage, I mean as has been submitted, it is a very private part of your life, when you are in the toilet, and it is not something you wish other people to be aware of.

107.   While the Tribunal is willing to accept the assessment of the psychologists that the Applicant presents a low risk of reoffending, the Tribunal considers that if the Applicant were to reoffend in a similar manner that similar consequences to any future victims would follow.

108. For these reasons, the Tribunal is satisfied that the ground for cancellation in section 116(1)(e)(i) exists. As that ground does not require mandatory cancellation under section 116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

Consideration of discretion

109.   There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the Applicant’s visa. However, in considering whether to exercise its discretion to cancel the Applicant’s visa, the Tribunal has had regard to the matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’. The Tribunal has also considered all of the evidence provided by the Applicant in support of his case and the very thorough written submissions, including post-hearing submissions, submitted on his behalf by his representative.

The purpose of the visa holder’s travel to and stay in Australia

110.   The purpose of the Applicant’s travel to, and stay in Australia, was to reunite with his wife who had arrived here almost a year prior to the Applicant’s arrival. The Applicant’s wife held a Subclass 457 visa on her arrival and the Applicant was granted his on the basis that he was the spouse of a primary visa holder of a Subclass 457 visa. The Applicant and his wife have indicated that their intention has always been to gain permanent residence and to settle permanently in Australia and raise a family here. The Applicant wishes to remain in Australia as his wife has indicated that she will not leave Australia if the Applicant is required to leave.

111.   The temporary visa held by the Applicant’s wife expires in April 2020. Had the Applicant’s visa not been cancelled, it would have expired at the same time. The visa that the Applicant’s wife holds does not allow for a direct pathway to permanent residence. The Applicant has submitted that his wife intends to apply for a permanent visa or for another temporary visa with a direct pathway to permanent residence. The Applicant has submitted that, while his wife is yet to apply for a permanent visa, or another visa with a direct pathway to permanent residence, he believes that she has good prospects of being granted a further visa to remain after April 2020 and that there are good prospects that she will eventually attain permanent residence.

112.   The Applicant wishes to remain in Australia so that he can be with his wife, either in [City 1] if he is allowed to relocate during the currency of his probation, or [State 1] where it will be easier for her to visit him.

The extent of compliance with visa conditions

113.   There is no evidence that the Applicant has failed to comply with visa conditions other than to the extent that this relates to his offending.

The degree of hardship that may be caused to the visa holder and any family members

114.   Both the Applicant and his wife have indicated that they will suffer hardship if the Applicant is required to leave Australia. They have indicated that, if the Applicant were to return to [Country 1], he may be isolated or subject to scorn as they believe that people in [Country 1] may be aware of the Applicant’s [offending]. They indicated that it is unlikely that the Applicant will ever be able to work as a [health professional] again because of his offences. They have indicated that the Applicant will have minimal support in [Country 1] as it is unclear whether the Applicant’s uncles would be willing or able to provide him support. Similarly, while the Applicant’s sister would be willing to support the Applicant, she does not have the financial means or the space in her house to do so.

115.   The Applicant and his wife have indicated that they believe it will be very difficult for the Applicant to secure employment in [Country 1] as a result of his offending and the poor state of the economy of [Country 1]. They have said that the Applicant’s wife will be required to financially support the Applicant in addition to paying off their debt in Australia, which has arisen following the Applicants offending, and to support herself in Australia.

116.   The Applicant and his wife have indicated that they will also suffer psychological and emotional hardship arising from the indefinite physical separation that they will face. They have said that, if the Applicant’s visa remains cancelled, he will be barred from re-entering Australia for three years and after that time, he may still face difficulties in being granted a visa given his previous offences in Australia. The Applicant and his wife have indicated that while they have been separated previously for almost a year between May 2016 and April 2017, that period of separation was necessary in order for the couple to save money for their wedding in December 2016.

117.   The Applicant’s wife indicated that, if the Applicant were allowed to remain in Australia, she believed that he would be required to remain in [State 1] for the duration of the suspended sentence. It appears that this view is supported by the sentencing magistrate’s remarks that the applicant must report regularly to his probation officer in [State 1] and that he cannot leave [State 1] without his probation officer’s prior approval. If the applicant is required to remain in [State 1] the couple will maintain contact by telephone and electronic means and the Applicant’s wife has said that she will visit him regularly. If the Applicant has to leave Australia the couple will maintain contact by telephone and electronic means but the Applicant’s wife will only be able to visit him in [Country 1] once a year. If the Applicant were free to relocate to [City 1], the Applicant and his wife indicated that he would do so. They said that he would undertake study towards a career in [another] industry. They said that the Applicant’s wife would financially support the couple including paying for the Applicant’s studies.

118.   The Tribunal notes that while the Applicant’s representative has asserted that there is a good chance that the Applicant’s wife will be granted another visa, and possibly a permanent visa, there is no guarantee that the Applicant’s wife will be able to remain in Australia after her current visa expires in April 2020. Further, if the Applicant were allowed to remain in Australia, the Tribunal considers that he would have less of a chance than his wife of being granted another visa after his visa expires in April 2020. That is because, regardless of whether the Tribunal exercises its discretion in this case, the Applicant has been convicted of numerous criminal offences in Australia. The Applicant’s criminal history would be relevant in the consideration of any future visa application made by the Applicant, and there is a good chance that he will be refused a visa in the future regardless of the outcome of these proceedings.

119.   These matters are relevant to the hardship that the Applicant and his wife may suffer if the Applicant’s visa remains cancelled. That is because, if neither the Applicant nor his wife are granted another visa to remain after April 2020, they will both have to depart Australia. If the Applicant’s wife is granted a visa and the Applicant is not then he will be required to depart Australia in April 2020 and his wife has indicated that she will remain in Australia. Therefore, if the decision to cancel the Applicant’s visa is affirmed in those circumstances, the hardship to the Applicant will be that he will be unable to remain in Australia with his wife until April 2020 after which time he will have to depart Australia.

120.   This is not a case where the Applicant and his wife are permanent residents and have a right to remain indefinitely in Australia. Any further stay in Australia after April 2020 will be determined by whether the Applicant and his wife meet the relevant criteria for whatever visas they may apply for.

121.   The Tribunal accepts that the Applicant and his wife will both suffer a certain level of hardship if the Applicant’s visa remains cancelled. It will mean that the Applicant will have to leave Australia and either return to [Country 1] or live in third country. Because the Applicant’s wife has decided that she will not leave Australia with the Applicant, they will be separated. It is likely that the Applicant will not be able to return to Australia for at least three years and even after that, owing to his criminal offending in Australia, there is a good chance that the Applicant will not be granted another visa.

122.   The Tribunal accepts that initially the Applicant may have some difficulty in finding employment in [Country 1]. The Tribunal accepts that the applicant may face some unfriendliness or hostility in [Country 1] as a result of his offending. The Tribunal accepts that the support that his family members could provide him may be limited. The Tribunal accepts that the Applicant’s wife would provide the Applicant with financial support until the Applicant found employment in [Country 1]. However, the Tribunal notes that the Applicant and his wife may face some similar hardships if the Applicant were to remain in Australia. If the Applicant were to remain in Australia, he would find it difficult to find employment and his wife would be providing for him financially in Australia including by paying their debts and living expenses, and paying educational fees for the courses he wants to undertake.

123.   The Tribunal accepts that there would be hardship to the couple in that they would be physically separated and would maintain contact by electronic means and telephone. Further, the Applicant’s wife said that she would visit the Applicant annually. The Tribunal has considered that the Applicant and his wife have been physically separated since August 2018 when the Applicant’s wife decided to take employment in [City 1]. This was prior to the Applicant being detained in immigration detention in November 2018. They maintained contact by electronic means and by telephone and the Applicant’s wife would visit him every month. The Tribunal has also considered that the couple have lived separately previously. As mentioned above, the Applicant and his wife decided to live separately for a period of almost a year between May 2016 and April 2017. The Tribunal has also considered that, although the Applicant’s wife has employment and a visa to remain here until April 2020, she could return with the Applicant to [Country 1] if she wished. She has decided that she will not do so. The Tribunal understands that those decisions are not easy. In these kinds of cases people are often required to make difficult decisions. In this case, the Applicant’s wife has decided to remain in Australia. That is her choice.

124.   The Tribunal considers that the hardship which would be caused to the Applicant and his wife should his visa remain cancelled is a consideration which weighs against the exercise of the power to cancel the Applicant’s visa.

The circumstances in which the ground for cancellation arose:

125.   The circumstances in which the ground for cancellation arose have been described above. In short, following his wife’s miscarriage in November 2017, the Applicant covertly filmed a number of adult women in various states of undress, using the toilet at his place of employment and also covertly filmed a number of adult women in various states of undress in changing rooms at a retail store in a mall. The Applicant was convicted of offences relating to 53 videos. Forty of those video recordings included footage of the anal and genital region of the victim.

126.   The psychologists have indicated that the offences were committed as a coping mechanism for the Applicant to deal with the grief of his wife’s miscarriage. The psychologists believed that the motivation for his offending behaviour was the Applicant’s fascination with technological gadgets and that it was in no way sexually motivated.

127.   The offending began in December 2017, almost immediately after the Applicant obtained the Apple watch, the means to create the recordings, and shortly after the Applicant arrived in Australia in April 2017. The serious negative effects on the victims of the Applicant's offences were outlined in the sentencing magistrate’s remarks which have been reproduced above.

128.   The Tribunal does not consider that the circumstances in which the ground for cancellation arose were beyond the control of the Applicant. While the Tribunal is willing to accept that the Applicant was grieving his wife’s miscarriage and that he was undertaking the recording activity as a form of coping mechanism, none of the psychological evidence suggests that the Applicant’s actions were beyond his control. The Applicant began offending almost as soon as he received the means to do so and continued offending for some six months until he was caught.

The visa holder’s past and present behaviour towards the department

129.   There is no evidence to suggest that the Applicant has behaved in a negative manner towards the department as to weigh against him in the exercise of the discretion. The Applicant responded to the Notice of Intention to Consider Cancellation. The Tribunal considers that this is a neutral consideration.

Whether there are persons in Australia whose visas would, or may, be cancelled under s140.

130.   As the Applicant was the holder of his visa on the basis of his wife holding a Subclass 457 visa, the cancellation of his visa does not result in the cancellation of his wife’s visa.

Whether there are mandatory legal consequences to a cancellation decision

131.   If the Applicant’s visa remains cancelled, his options for applying for a further visa onshore are very limited. Unless the Applicant was granted another visa, the Applicant would be held in immigration detention until he was removed from Australia. In all likelihood, the Applicant would be required to be removed from Australia and would not be eligible for the grant of another visa for a period of three years.

Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

132.   The Applicant submitted that a decision to set aside the cancellation of the Applicant’s visa would be consistent with “family unity principles” including those contained in Articles 17 and 23 of the “International Convention on Civil and Political Rights 1996.” The Tribunal assumes that the Applicant was referring to the International Covenant on Civil and Political Rights adopted by the United Nations General Assembly in December 1966 (ICCPR).

133.   Article 17 of the ICCPR provides:

“1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks. “

134.   Article 23 of the ICCPR provides:

“1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

2. The right of men and women of marriageable age to marry and to found a family shall be recognized.

3. No marriage shall be entered into without the free and full consent of the intending spouses.

4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.”

135.   The Applicant argued that it was in the interests of the Applicant’s family unit, that is, he and his wife, to remain together in Australia. The Applicant also suggested that the cancellation of the Applicant’s visa would constitute an arbitrary or unlawful interference with the Applicant’s family as the Applicant presented a minimal risk of recidivism. The suggestion was that Australia would be in breach of Article 17 of the ICCPR if the Applicant’s visa were to remain cancelled.

136.   As the Tribunal has already mentioned, the Tribunal accepts that the Applicant and his wife would suffer a degree of hardship if the Applicant’s visa remains cancelled. Further, if the Applicant’s visa remains cancelled the Applicant would be separated from his wife for some time.

137.   Australia has enacted legislation which allows for the State to cancel a visa held by a non-citizen in circumstances where they may present a risk to the Australian community or a segment of the Australian community. In the present case, the Minister's delegate has exercised that power to cancel the Applicant’s visa. This was because the applicant was seen to present a risk to the safety of the community as the applicant had breached Australia’s criminal laws and harmed members of the Australian community. The Applicant was convicted and sentenced in accordance with Australian law. Australia has enacted legislation allowing for the Tribunal, an independent review body, to conduct merits review of the decisions of the Minister or his delegates to cancel the visas of non-citizens on this basis. Australia has also enacted legislation which allows for judicial review of decisions made by the Tribunal. The Tribunal thoroughly rejects the argument that the cancellation of the Applicant's visa, or the Tribunal’s potential affirmation of that decision, are in any way an arbitrary or unlawful interference with the Applicant’s family.

138.   Further, there is no Australian law or any decision by the Department or the Tribunal which mandates the separation of the Applicant from his wife. As a holder of a valid temporary visa, the Applicant’s wife is currently free to remain in Australia if she wishes. Under Australian law, she is equally free to depart Australia so that she may remain with the Applicant as a family unit outside of Australia. In 2016 the Applicant and his wife decided to live in separate countries for almost a year. In August 2018, the Applicant’s wife decided to live separately from the Applicant when she relocated to [City 1] for work. The Applicant’s wife has told the Tribunal that she has decided to live separately from the Applicant if he were removed from Australia. On each of the above occasions, the Applicant and his wife have lived separately (or will live separately) because of their own decisions to do so. On none of the occasions above has Australia, or any other nation, mandated the separation of the Applicant from his wife.

139.   The Tribunal finds that there is nothing in the Minister’s delegate's decision, or any potential Tribunal decision to affirm the delegate’s decision, which would be contrary to Articles 17 or 23 of the ICCPR.

140.   The Tribunal finds that there is no evidence that any of Australia’s international obligations would be breached as a result of the cancellation of the Applicant’s visa.

Whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations.

141.   The Applicant has submitted that Australia’s non-refoulement obligations are not relevant in this matter and there is no suggestion from the evidence that Australia would breach those obligations as a result of the cancellation of the Applicant’s visa.

Any other relevant matters.

Protection of the Australian community

142.   The Tribunal has considered matters relating to the protection of the Australian community under “other relevant matters”. However, this does not detract from the significance of this consideration to this case.

143. There is no doubt that the offences that the Applicant committed were serious and that they had a profound negative impact on the victims of the offending. The sentencing magistrate described the Applicant’s offences as “very serious offences” and described the impact of the applicant’s offending on his victims as cited above at paragraph [105]. If the Applicant were to re-offend in a similar manner, this would be likely to result in the kinds of harm to members of the Australia community that the sentencing magistrate described as having been suffered by his previous victims.

144.   The psychologists have indicated that the offences were committed as a coping mechanism for the Applicant to deal with the grief of his wife’s miscarriage. The psychologists believed that the motivation for his offending behaviour was the Applicant’s fascination with technological gadgets and that it was in no way sexually motivated. As I have mentioned above, I have some real concerns about these findings but I ultimately accepted the psychologists’ assessments that the Applicant presents a low risk of reoffending.

145.   While the Tribunal has accepted the evidence of psychologists that the Applicant presents a low risk of reoffending, the Tribunal considers that risk is not insignificant and presents a real risk. The Tribunal considers that the protection of the Australian community would be best served by the Applicant no longer being present in Australia. The Tribunal considers that this consideration weighs heavily in favour of cancellation of the Applicant’s visa.

Other matters advanced by the Applicant

146.   In his written contentions the Applicant put forward other matters which he said were relevant to the exercise of the Tribunal’s discretion.

147.   The first matter was that the Applicant had demonstrated aspects of good character over the course of his life and that he had demonstrated that he was a kind and caring person.

148.   The second matter was that the sentence and punishment imposed for his offences did not reach the threshold necessary to enliven the cancellation power in section 501 of the Act and that this weighed against cancellation in this case.

149.   The third matter was that the sentencing magistrate avoided issuing the Applicant a term of actual imprisonment due to his rehabilitative efforts and the progress he had made. The Applicant submitted that this signifies that the Applicant was considered a worthy candidate for a second chance and the opportunity to prove himself while subject to a probation order. The Applicant submitted that he was asking the Tribunal for a chance to allow for him to prove himself in the community prior to the expiry of his visa in April 2020 so that he may satisfy the relevant character requirements for the purpose of being granted a further visa.

150.   In relation to the first matter, the Tribunal has considered that the Applicant has demonstrated aspects of good character in the past. The Tribunal is willing to accept that the Applicant has provided financial support to his immediate and extended family. The Tribunal is willing to accept that the Applicant has undertaken volunteer work previously in [Country 1]. The Tribunal is also willing to accept that the Applicant has supported other detainees in immigration detention. The Tribunal has also taken into account the letters of support provided to the Department and Tribunal by the Applicant’s family and friends which attest to the Applicant’s good character and indicate that they believed that his offending was an aberration.

151.   The Tribunal has also considered the other “salient aspects of [the Applicant’s] circumstances” which the applicant proffered in this post hearing submissions. The Tribunal has considered that the Applicant’s offending did not constitute him having a substantial criminal record for the purposes of section 501 of the Act, “his extensive rehabilitative efforts and that his wife makes valuable contributions to the Australian community through her [employment].”

152.   In relation to the second matter, that the sentence imposed on the Applicant for his offences did not reach the threshold necessary to enliven the cancellation power in section 501 of the Act, the Tribunal considers the submission to be misconceived.

153.   First, it appears the Applicant’s criminal offending and/or his risk of reoffending may have been sufficient to enliven the cancellation power in section 501 of the Act.

154.   Under section 501(2) of the Act, the Minister may cancel a non-citizen’s visa if the Minister reasonably suspects that the person does not pass the character test; and the person does not satisfy the Minister that the person passes the character test.

155.   A person will not pass the character test for the purposes of section 501 if a person has a substantial criminal record: section 501(6)(a). Section 501(7) provides for a number of circumstances where a person is taken to have a substantial criminal record. Under section 501(7)(c) a person has a substantial criminal record if they have been sentenced to a period of imprisonment of 12 months or more.

156.   While the Tribunal accepts that the Applicant, who was sentenced to 6 months imprisonment, wholly suspended, is not taken to have a substantial criminal record, that is, not to say that grounds did not exist for the cancellation of his visa under section 501 of the Act. There are a number of ways that a person can fail to pass the character test for the purposes of section 501 of the Act. Having a substantial criminal record is only one way in which a person will be taken to fail the character test.

157.   Another way that a person fails the character test is if, having regard to either or both the person’s past and present criminal conduct and/or the person’s past and present general conduct, the person is not of good character: section 501(6)(c) of the Act.

158.   A further way that a person fails the character test is if there is a risk that the person would engage in criminal conduct in Australia: section 501(6)(d)(i) of the Act.

159. The Tribunal notes that section 501(6)(d)(i) of the Act appears to have a similarly low, if perhaps not as low, threshold to section 116(1)(e) of the Act, in that a mere risk of a person engaging in criminal conduct in Australia is sufficient to engage the cancellation power in section 501 of the Act. Although, the Tribunal expresses no concluded view on the matter, it would not be surprising, given the Applicant’s previous offences, and notwithstanding the low risk that he will reoffend, if a decision maker found that the Applicant in the present case presented a risk of engaging in criminal conduct in Australia.

160. Secondly, even if the Applicant’s submission, that the Applicant’s offences did not reach the threshold for cancellation under section 501 of the Act, was correct, the cancellation powers under section 116 and section 501 of the Act are separate and distinct powers. Under section 116(1)(e)(i) of the Act the Minister may cancel a non-citizen’s visa if satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community. Under section 501(2) of the Act the Minister may cancel a non-citizen’s visa if the Minister reasonably suspects that the person does not pass the character test; and the person does not satisfy the Minister that the person passes the character test. Even if the circumstances relating to a person did not enliven the cancellation power in section 501 of the Act, if the circumstances enlivened the cancellation power under section 116 of the Act, the intention of Parliament was for decision makers to have a discretion to cancel the person’s visa.

161.   In relation to the third matter, that the magistrate’s sentencing remarks signified that the Applicant was considered a worthy candidate for a second chance and the opportunity to prove himself while subject to a probation order, the Tribunal makes the following comments.

162.   First, the sentencing magistrate’s task was to formulate an appropriate punitive sentence in relation to the Applicant. The considerations for a sentencing magistrate are quite different from the considerations of a decision maker in considering whether an Applicant’s visa should be cancelled. It is no part of the Tribunal’s function to mete out punishment to an applicant. Such a consideration would be unlawful. Similarly, it is not for a sentencing magistrate to determine whether an Applicant’s visa should be cancelled because he may present a risk to the community or a segment of the community.

163.   There are a number of problems with approaching the Tribunal’s function with a focus on providing applicants with chances to prove themselves. One such problem is that giving an applicant an opportunity to prove that they will not offend in Australia is also giving an applicant an opportunity to continue to offend against members of the community. If the Applicant is allowed to remain in Australia, and he does not reoffend, that would in no way be an enhancement of the protection of the Australian community. It would simply be that the Applicant did as he was expected, and refrained from committing offences in Australia. If the Applicant is allowed to remain in Australia, and he does reoffend, that could potentially cause great harm to members of the Australian community, as his offences have in the past.

164.   A better way to approach the exercise of the discretion to cancel is for the Tribunal to balance competing considerations, including the protection of the Australian community, the hardship to the Applicant and his family members if a visa is cancelled and the other considerations discussed above to come to an informed conclusion as to whether the Applicant’s visa should be cancelled. That conclusion will be informed by whether the Tribunal considers that the risk of offending posed by the Applicant is an acceptable one in all the circumstances of this case.

Conclusion

165.   The Tribunal has found that the Applicant’s offending was serious and resulted in harm to a number of women of the Australian community. While the Tribunal has accepted the evidence of psychologists that the Applicant presents a low risk of reoffending, the Tribunal considers that risk is not insignificant and presents a real risk. The Tribunal considers that the protection of the Australian community would be best served by the Applicant no longer being present in Australia. The Tribunal considers that this consideration weighs heavily in favour of cancellation of the Applicant’s visa.

166.   The Tribunal has found that the Applicant and his wife will suffer hardship if the Applicant’s visa remains cancelled and he has to return to [Country 1]. The Tribunal understands that the applicant and his wife hoped to be able to remain in Australia permanently and to start a family here. However, the weight to be afforded to this consideration is somewhat tempered by the fact that the Applicant and his wife both held temporary visas and did not have a right to remain permanently in Australia. If the Applicant’s visa had not been cancelled, his visa would have expired in April 2020. Even if the Tribunal were to set aside the cancellation decision, there is a good chance that he would not be granted a further visa on account of his numerous offences in Australia. The Tribunal has placed moderate weight against visa cancellation on the hardship that visa cancellation would cause to the Applicant and his wife.

167.   The Tribunal has carefully considered the matters which the Departmental policy guidelines suggest should be considered in the exercise of the discretion to cancel. The Tribunal has considered that the Applicant has complied with the conditions of his visa and that there is no evidence that he has behaved poorly in his dealings with the Department. The Tribunal has considered that if the Applicant’s visa remains cancelled, unless he is granted another visa, he will be detained in immigration detention until he is removed from Australia. The Tribunal has considered that the Applicant will be unlikely to be granted another visa for three years and that, owing to his previous offences, he may never be granted another visa to enter Australia. The Tribunal has also considered that, even if the Tribunal were to set aside the cancellation decision, owing to his previous offences, the applicant may not be granted another visa after April 2020.

168.   The Tribunal has considered that the Applicant has demonstrated aspects of good character in the past. The Tribunal has also taken into account the letters of support provided to the Department and Tribunal by the Applicant’s family and friends which attest to the Applicant’s good character and indicate that the Applicant’s offending was an aberration. The Tribunal has considered that the Applicant’s offending did not constitute him having a substantial criminal record for the purposes of section 501 of the Act, “his extensive rehabilitative efforts and that his wife makes valuable contributions to the Australian community through her [employment].”The Tribunal has placed some weight, in the applicant’s favour, on these matters.

169.   After considering all of the relevant considerations in this matter, the Tribunal considers that the protection of the Australian community outweighs all other considerations including the hardship to the Applicant and his wife which would result if the Applicant’s visa remains cancelled. The Tribunal considers that, notwithstanding that the Applicant’s risk of reoffending is low, the consequence of the Applicant reoffending would be likely to include serious harm and distress to members of the Australian community. In this case, the Tribunal considers that the Australian community, and especially women of the Australian community, should not have to bear that risk, especially in circumstances where the applicant only had a right to remain temporarily in Australia. The Tribunal finds that, while the Applicant presents a low risk of reoffending, that the risk is real and not insignificant, and that risk is unacceptable.

170.   Considering the circumstances as a whole, the Tribunal concludes that the Applicant’s visa should be cancelled.

171.   Therefore, the Tribunal finds that the Minister’s delegate’s decision, to cancel the Applicant’s visa, is the correct decision.

DECISION

172.   The decision under review is affirmed.

Tigiilagi Eteuati
Member