BBXD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

BBXD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 280 (21 February 2020)
Division:GENERAL DIVISION
File Number: 2019/8244
Re:BBXD
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:21 February 2020
Place:Melbourne

The decision under review is affirmed.
............[sgd]............................................................
Senior Member A. Nikolic AM CSC
MIGRATION – Mandatory visa cancellation – citizen of New Zealand – Class TY Subclass 444 Special Category (Temporary) visa – criminal history in New Zealand and Australia – sexual offending involving a child – violent crime against a woman – failure to pass good character test – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) Migration Regulations 1994 (Cth)
Sex Offenders Registration Act 2004 (Vic)
CASES
Ali v Minister for Home Affairs [2019] FCAFC 93
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67
Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113
Brown v Minister for Immigration and Citizenship [2010] FCAFC 33
Director of Public Prosecutions v Rory Callaghan (A Pseudonym) [2016] VCC 1718
FYBR v Minister for Home Affairs [2019] FCAFC 185
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Murphy v Minister for Home Affairs [2018] FCA 1924
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Saleh v Minister for Immigration and Border Protection [2017] AATA 367
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
21 February 2020
INTRODUCTION

The applicant seeks review of a decision by a delegate of the Minister for Home Affairs, made under s 501(2) of the Migration Act 1958 (Cth) (“the Act”), to cancel his Class TY Subclass 444 Special Category (Temporary) visa (“the visa”).[1]
The hearing was held in Melbourne on 17 February 2020. The applicant was self-represented. The Minister was represented by Ms Melinda Jackson from the Australian Government Solicitor.
For the reasons that follow the Tribunal affirms the decision under review.
APPLICANT’S IDENTITY
In the specific circumstances of this case it is appropriate to restrict the identification of the applicant. He has been convicted of a sexual offence involving a child, whose future interests merit protection. Accordingly, the applicant will be referred to as “BBXD”. The identity of witnesses will not be disclosed and certain details tending to identify BBXD and his victim have been redacted.
BACKGROUND
The factual background is as follows:
(a)The applicant is a 59 year old citizen of New Zealand. He married in 1980 and had five children with his former partner before they separated in the early 1990s.[2] He is a grandfather to multiple grandchildren;
(b)After the applicant separated from his wife, he relocated to Australia in 1999 at the age of 39.[3] He submitted an incoming passenger card to the effect that he did not have any criminal convictions;[4]
(c)The applicant worked consistently in Australia, predominantly as a truck driver and regularly remitted money to support his family members in New Zealand;
(d)With the applicant’s support one of his daughters, her husband, and their children moved to Australia in 2012.[5] In early 2015 the applicant committed sexual offences against his then nine-year old granddaughter. On 9 November 2016 he was convicted in the County Court of Victoria of ‘Indecent act with child under 16;’[6]
(e)A notice dated 15 June 2019 was sent to the applicant regarding possible cancellation of his visa,[7] inviting him to make submissions in response. Included with the notice was an Australian National Police Certificate dated 28 February 2017,[8] a New Zealand Police Criminal History dated 29 November 2016,[9] and sentencing remarks from the County Court of Victoria dated 9 November 2016[10] (“2016 sentencing remarks”). A record in evidence from Australia Post states that the notice was delivered on 19 June 2019.[11] The respondent’s unchallenged submission is that the applicant did not respond to the notice;[12]
(f)On 5 December 2019 the applicant’s visa was cancelled on character grounds.[13] He acknowledged receipt of this decision on the same day;[14] and
(g)By application dated 12 December 2019 the applicant requested that the Tribunal review the cancellation decision.[15]
Pursuant to s 500(6L) of the Act the Tribunal must discharge its review function in respect of this application by 27 February 2020.
LEGISLATIVE FRAMEWORK
Taken together, s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and s500(1)(b) of the Act are the sources of the Tribunal’s jurisdiction to review decisions of a delegate of the Minister under s 501 of the Act.
Section 501(2) of the Act is one of a number of discrete powers conferred under s 501. It provides that:
…
(2) The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
The character test is defined at ss 501(6) - 501(12) of the Act and refers to a range of character matters that the Minister or their delegate may have regard to in deciding whether to refuse, cancel, or revoke the mandatory cancellation of a visa. Section 501(6)(e) of the Act provides:
(6) For the purposes of this section, a person does not pass the character test if:
…
(e)a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child; or
…
Section 501 of the Act was amended in 2014 by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) to introduce s 501(6)(e), amongst other amendments. The Explanatory Memorandum for the Amendment Act states:
New paragraph 501(6)(e) of the Migration Act provides that a person does not pass the “character test” if a court in Australia or a foreign country has convicted the person of one or more sexually based offences involving a child or found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction.
For the purposes of new paragraph 501(6)(e) of the Migration Act, the term “sexually based offences involving a child” would include, but would not be limited to, offences such as child sexual abuse, indecent dealings with a child, possession or distribution of child pornography, internet grooming, and other non-contact carriage services offences. This amendment is intended to apply irrespective of the level of penalty or orders made in relation to the offence.
The purpose of this amendment is to ensure that a person who has been found by a court to have engaged in sexually based offences involving a child objectively does not pass the character test. Currently, such offences may be considered under subsection 501(6) of the Migration Act when deciding whether a person fails the character test, but this amendment removes the subjectivity from this assessment in cases where the person does not fail the substantial criminal record test in subsection 501(7) because a sentence of imprisonment of at least 12 months has not been imposed.[16]
(emphasis added)
If the applicant fails the character test, the Tribunal must then determine whether the discretion under section 501(2) of the Act to cancel his visa should be exercised.[17] Guidance in exercising the discretion is found in Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”).
Direction No. 79
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) mandates that the Tribunal, must comply with the Direction.[18]
The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Clause 6.1 of the Direction sets out a number of objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’ Clause 6.1(2) states:
…
(2) … A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
By way of general guidance, cl 6.2(1) of the Direction provides:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) …
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to…cancel a non-citizen’s visa under section 501…The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B…
The principles referred to under the General Guidance are reproduced below and constitute a framework within which decision-makers apply relevant considerations:
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) 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.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Clause 7(1)(a) of the Direction provides that in cases relating to the cancellation of a visa, decision-makers must take into account the considerations in Part A of the Direction to determine whether a non-citizen forfeits the privilege of continuing to hold a visa.
If an applicant fails the character test, the following primary considerations at cl 9(1) of the Direction must be applied to the specific circumstances of the case:
a.    Protection of the Australian community from criminal or other serious     conduct;
b.    The best interests of minor children in Australia; and
c.    Expectations of the Australian community.
Clause 10(1) of the Direction requires that other considerations to be taken into account include but are not limited to:
a.    International non-refoulement obligations;
b.    Strength, nature and duration of ties;
c.    Impact on Australian business interests;
d.    Impact on victims; and
e.    Extent of impediments if removed.
Clause 8(2) of the Direction states that in applying the primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
Clause 8(3) of the Direction states that ‘Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.’
Clause 8(4) states that ‘Primary considerations should generally be given greater weight than the other considerations.’
Clause 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461 at [57] and [78], in relation to previous ministerial directions:
[57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
…
[78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
DOES THE APPLICANT PASS THE CHARACTER TEST?
On 9 November 2016 BBXD was convicted of a sexual offence involving a child. Pursuant to s 501(6)(e)(i) of the Act he does not pass the character test.
ISSUE TO BE RESOLVED
The issue to be determined is whether the discretion under s 501(2) of the Act to cancel BBXD’s visa should be exercised.
EVIDENCE BEFORE THE TRIBUNAL
Following a Directions Hearing on 18 December 2019, BBXD was required to lodge with the Tribunal and give to the respondent by 24 January 2020, any witness statements, any other evidence on which he intended to rely at the hearing, and a Statement of Facts, Issues and Contentions. The Tribunal also advised the applicant that under the Act, no regard could be had for any statement or information presented orally at the hearing, unless the information was set out in writing and given to the respondent at least two business days prior to the hearing. The applicant did not lodge any materials with the Tribunal or respondent by 24 January 2020. The Tribunal contacted BBXD’s then representative (his daughter) about this non-compliance, but she did not respond.
On Wednesday 12 February 2020 the Tribunal again contacted BBXD’s daughter to inquire whether any witnesses would be called and to emphasise that any final materials had to be lodged by midnight that day. She advised that some statements had been provided to the respondent and she would provide further statements later that day. She was experiencing technical difficulties attaching files to emails on her phone, and was unable to lodge documents in person or access a fax machine or public computer.
On Wednesday 12 February 2020, the Tribunal received copies of three support letters provided by BBXD’s daughter. On Thursday 13 February 2020, the Tribunal received a further statement lodged by BBXD’s daughter before midnight on Wednesday 12 February 2020. On Friday 14 February, the respondent provided the Tribunal with a copy of two statements lodged by BBXD’s daughter on Thursday 13 February 2020.
The Tribunal informed the parties at the hearing that pursuant to s 500(6J) of the Act, regard could only be had for the documents lodged by midnight on 12 February 2020. This meant that the last two statements lodged on 13 February 20120 would not be accepted into evidence.
“G-documents” numbering 314 pages were taken into evidence,[19] as were:
(a)an email dated 12 February 2020 from BBXD’s daughter;[20] and
(b)a reference from BBXD’s most recent employer.[21]
The Tribunal heard oral evidence from BBXD and his daughter.
National Police Certificate
BBXD does not dispute the information in his Australian National Police Certificate.[22] During the hearing he expressed general uncertainty about one of the dishonesty offences listed in his New Zealand criminal history report,[23] but did not make specific submissions or refer to other evidence. The Tribunal considers that the Australian and New Zealand criminal history reports are accurate records of BBXD’s offending.
Medical Evidence
There is no recent medical evidence before the Tribunal. BBXD’s oral evidence is that he has no current medical or psychological issues. When asked by the Tribunal about the references in evidence to a potential heart problem, BBXD stated he had experienced chest pain while playing tennis in September 2019. Tests were subsequently conducted including a heart stress test and a blood test a ‘couple of weeks ago,’ but nothing abnormal was detected.
Applicant’s evidence
The applicant’s oral evidence can be summarised as follows:
(a)BBXD said his early life in New Zealand was difficult due to his parent’s divorce soon after he was born. He was raised by his maternal grandmother. He undertook schooling in New Zealand and a mechanical apprenticeship for two-and-a-half years, but did not complete it due to health problems from diesel exposure. He subsequently worked in construction and as a truck driver;
(b)BBXD met his wife in New Zealand and they had five children. His two domestic violence convictions in 1994 were against his wife, which was around the time of their separation. He claimed that domestic conflict arose because of ‘little things,’ mainly arguments about money. Approximately seven-and-a-half years after separating from his wife, BBXD said he sought a better life in Australia at the prompting of his grandmother;
(c)BBXD said he worked consistently since arriving in Australia and financially supported his family members in New Zealand, including his children and siblings. In 2012 he assisted one of his New Zealand-based daughters, her husband, and their five children to relocate to Australia. Four of the children are still under the age of 18 and one is the victim of his offending;
(d)BBXD said because his daughter and son-in-law worked, he wanted to ‘give them a break’ by helping look after their children. At times he cared for them at his daughter’s home and on other occasions in the house he boarded at. BBXD agreed with the facts contained in the Agreed Summary of Prosecution Opening[24] and 2016 sentencing remarks, explaining that it was ‘the situation’ that caused him to ‘just get out of control.’ When asked to elaborate, BBXD said alcohol played a role ‘most times’ in the assaults against his granddaughter: ‘I just went off track and couldn’t concentrate on anything…When I didn’t drink I didn’t do that sort of thing and at that time I didn’t understand what made me do it.’ When asked if other female grandchildren had slept in his bed, BBXD said an older one had, but he never assaulted her. When asked why he assaulted the victim, he replied: ‘I don’t know.’ Even after counselling he could not understand his actions, but had assured his son-in-law and daughter that ‘it will never happen again’;
(e)In relation to his alcohol history, BBXD said he started drinking spirits socially with family in New Zealand at the age of 21. During his early years in Australia he claimed to have also been a social drinker, consuming alcohol on one or two nights a week. Alcohol only became a real problem for him approximately nine years ago. In the eight months prior to the offending against his granddaughter, he claimed to be engaging in heavy drinking, which could be up to ‘a slab a night;’
(f)When asked about his granddaughter’s claim in a police interview that he assaulted her ‘morning and night’ whenever she stayed at his residence, BBXD denied doing so in the mornings because he left for work very early. BBXD agreed his conduct only stopped after being confronted by his son-in-law, who telephoned him and a ‘few bad words were said.’ BBXD was asked to ‘come over and talk about it.’ At a subsequent family meeting, which BBXD said went for about three to four hours, the victim was told by her parents to reveal everything that occurred and she cried while recounting BBXD’s abuse. The other grandchildren were present at this meeting;
(g)BBXD often found it difficult to respond to questions about the specifics of his offending. He claimed to be unable to recall what had occurred until confronted by his son-in-law. It was put to him that given the duration and frequency of his abuse, that seemed unlikely. BBXD conceded he had a ‘bad feeling’ some mornings about bad things happening during the night, but ‘most times’ he could not remember. When asked to elaborate on the cause of this ‘bad feeling,’ he said his granddaughter ‘wasn’t there’ and he discerned from the way she talked to him and was ‘not accepting’ him that something was amiss. He didn’t recall if she cried in response to his abuse as claimed during her police interview. In response to further questions, BBXD recalled putting his ‘hand on her backside,’ then telling himself ‘that’s not going to happen again.’ He claimed that he tried not to have his granddaughter stay at his home for about two or three weeks, but the abuse recommenced upon her return. BBXD said he did not seek help, agreeing he knew ‘it was bad’ but ‘didn’t do anything about it’;
(h)BBXD said he initially gave a ‘no comment’ interview to police and about three months after the offending, he relocated to a regional community. He was advised to do so by a counsellor, but also wanted a fresh start. He found a new job with better hours and engaged in social and sporting interests. BBXD said he liked his job and found the ‘local people wonderful.’ He had seen a counsellor approximately three times after relocating and also saw another psychologist who prepared a report for the Court. When asked if he had seen any other psychologists or counsellors, BBXD replied: ‘No’;
(i)BBXD said he pleaded guilty on his first day in court, which was approximately seven months after being charged. He had initially been charged with 12 counts by police but this had ‘dropped to the three’ he pleaded guilty to as one charge which was representative of his offending on these three occasions;
(j)BBXD agreed he breached the trust of his family, but claimed to still be close to his Australian-based daughter and grandchildren, including the victim of his offending. When asked about any restrictions or obligations he was under following his convictions, BBXD thought they related to alcohol and counselling. In response to further questions he said his obligations under the Sex Offenders Registration Act 2004 (“SORA”) required him to ‘report in, don’t be interstate and overseas, always inform them of what I’m doing like moving address’. When prompted as to whether he also had to report contact with children, BBXD agreed he did;
(k)BBXD said he had not seen his three youngest grandchildren since his offending was revealed during the family meeting. One of the older grandchildren surprised him with a hospital visit in late 2019 while his chest pain was being assessed. No-one had visited him in immigration detention because it was too far away and he had told them not to come because of the distance;
(l)BBXD said after his trial he was required to undertake a two-year course ordered by the Court, which taught him a lot, ‘mainly control’. The course had modules, relating to ‘anger and alcohol.’ When asked if the course dealt with the reasons for his offending against his granddaughter, BBXD responded: ‘That’s hard for me to answer.’ When asked what he learned during the alcohol component of the course, BBXD responded: ‘That I’m not a person to drink alcohol.’ When asked if he ever tried to stop drinking, BBXD said he had, including most recently for six months after relocating to regional Victoria. He had done so to ‘find myself and get back on track again.’ He now claimed to have his drinking under control and limited himself to social drinking after sporting and other events on Fridays and weekends, but ‘hardly ever’ from Monday to Wednesday. When asked if the alcohol program he undertook recommended he stop drinking, BBXD replied: ‘Not that I can remember.’ He claimed: ‘I can take more control of alcohol now than I could then’;
(m)In relation to his risk of violent or sexual reoffending, BBXD claimed he constituted ‘zero risk.’ When asked what that was based on, he replied; ‘That’s not me. I’m not a violent person at all. I love being with people. I love being with children. It’s not in my nature and I really care about my family;’ and
(n)BBXD said he had a father, siblings, an aunt, four children and multiple grandchildren living in New Zealand. Two other siblings live in Queensland. He gets on well with all of his family members and they talk to each other frequently.
Evidence of BBXD’s daughter

The evidence of BBXD’s daughter, who is also the mother of his victim, can be summarised as follows:
(a)The witness said her immediate family are all New Zealand citizens on Class TY Subclass 444 Special Category (Temporary) visas. BBXD had assisted their relocation to Australia in 2012, including by helping her husband secure work and providing a ‘settled home to come to’;
(b)The witness had returned to New Zealand since arriving in Australia, including in 2016 for a relative’s funeral. Her mother, siblings and other relatives live in New Zealand, and she is on good terms with them;
(c)When asked about her relationship with BBXD, the witness said he was a ‘great father, a great role model’ and her childhood had been ‘awesome.’ Her father was a ‘genuine bloke who would help anyone in need’;
(d)When asked about BBXD’s offending against her daughter, the witness said she was initially ‘shocked, angry, hurt and in disbelief.’ Despite not being able to ‘come to terms with it,’ she said her children ‘adore’ their grandfather and she has ‘unconditional love’ for BBXD. When asked whether her husband was equally forgiving, the witness said she could not speak for her husband and although ‘he’s not here, he does respect my dad’;
(e)The witness said that in the aftermath of BBXD’s offending, her daughter was ‘distraught, confused, lost in her world and still coming to terms with it.’ Her daughter had attended counselling to help ‘get her mind settled’ and had since been ‘up and down.’ She was well supported by various agencies. Her daughter was not currently going to school, which the witness attributed to bullying issues. There had been recent improvement and her daughter currently ‘walks, talks, smiles and interacts;’ and
(f)The witness said she would support BBXD if he returned to New Zealand, including by sending his possessions back, helping coordinate work references, and inviting his friends to a ‘farewell party’.
Evidence of BBXD’s former employer
The Tribunal has considered a letter addressed ‘To Whom It May Concern’ from BBXD’s former employer dated 6 January 2020. The author was not called to give evidence and could not be cross-examined. The letter does not disclose any knowledge about BBXD’s criminal conduct in New Zealand or Australia, and is more in the nature of a work reference. The author reflects favourably upon BBXD’s valued work performance, describing him as a ‘reliable, hard working’ employee who was ‘sorely missed…during his current misfortunes,’ which has ‘disrupted our operations and placed extra burden on other staff members’.
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
Clause 9.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 9.1.1(1) sets out factors that decision-makers must have regard to in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date.
Tribunal consideration: The nature and seriousness of the conduct
The 2016 sentencing remarks disclose that BBXD pleaded guilty to one charge of committing an indecent act with a child under 16, which was representative of three occasions over an approximately two-week period.[25] The offending involved BBXD’s granddaughter who was then nine years of age, while the applicant was 54. Her Honour referred to the applicant’s conduct as ‘very serious’ and a ‘clear breach of trust.’[26] The Court held that the nature of the acts for which he was convicted were brief, and involved touching but not penetrating the child’s vagina.[27] Her Honour considered the conduct was ‘at the lower end of seriousness for this type of serious offence.’[28]
A record from New Zealand Police dated approximately three weeks after BBXD’s trial was in evidence before the Tribunal, but was not available to the sentencing judge. This discloses that as a juvenile BBXD was admonished and discharged in 1975 for two counts of ‘Possess/carry firearm – under 16.’ He was subsequently convicted of the following offences in New Zealand between 1975 and 1995:[29]
(a)Two counts of ‘Male assaults female (manually)’ relating to offences in January and September 1994, for which he received sentences of eight months imprisonment, which were suspended for two years;
(b)Dishonesty offences such as ‘Receiving’ (1975), seven counts of ‘Unlawful takes motor vehicle’ (1977), and ‘Fraudulently parts with goods’ (1985);
(c)‘Breach probation’ (1979); and
(d)Seven traffic convictions encompassing four offences for ‘Drive while disqualified’ and two offences of ‘Driving with excess breath alcohol level’ in 1985 and 1995.
BBXD’s evidence during the hearing was that he did disclose a New Zealand drink-driving offence in the context of his 2016 trial. When challenged that any disclosure was not evident from Her Honour’s sentencing remarks, BBXD insisted he had referred to a drink-driving offence.
The respondent’s submissions can be summarised as follows:
(a)The applicant’s offending against his granddaughter is very serious, including because of his position of trust and responsibility;
(b)The sexual offending caused pain to the victim and on all three instances, the victim was reduced to tears by the applicant’s conduct;
(c)Although the applicant was only sentenced for a single offence against his granddaughter, the offending occurred on more than one occasion, demonstrating it was more than a ‘one off’ lapse of judgment. Further, had the victim not brought the offending to the attention of her parents, it would likely have continued and may have escalated;
(d)The applicant’s offending against his granddaughter involved a degree of forcefulness and coercion; on the second occasion he pulled the victim towards him in order to sexually abuse her, and on the third occasion he physically stopped the victim from covering her vaginal area whilst he sexually abused her;
(e)The applicant is a registered sex offender, which is reflective of the ongoing and unacceptable risk to the community he poses; and
(f)The applicant has committed multiple offences in New Zealand, including two counts of ‘male assaults female (manually)’. The use of violence should be viewed very seriously by the Tribunal. The pattern of the applicant’s convictions over an extended period suggests he has little regard for compliance with laws and would not take heed of further warnings. It should also be of concern to the Tribunal that, upon his arrival in Australia, the applicant failed to disclose his New Zealand offending. This speaks to the applicant’s lack of candour in dealing with government authorities and a lack of honesty more broadly.
Tribunal findings: The nature and seriousness of the conduct
The following aspects of cl 9.1.1(1) of the Direction are relevant to the specific circumstances of the applicant’s case:
(a)9.1.1(1)(a)-(b): The applicant committed a sexual crime against a child and violent crimes against a woman, which are viewed very seriously regardless of the sentence imposed;
(b)9.1.1(1)(c): As a child the applicant’s granddaughter is plainly a vulnerable member of the community;
(c)9.1.1(1)(f): BBXD’s criminal record in New Zealand was not disclosed to the court-appointed psychologist, during the Specialised Offender Assessment and Treatment Services (“SOATS”) assessment, or to the Court. In 1995 the applicant was sentenced to imprisonment in New Zealand, which was suspended for two years but still constitutes a ‘very serious form of punishment’.[30] Moreover, the assessment that BBXD was suitable for a CCO in relation to his Australian offending,[31] and that the CCO would provide ‘for all relevant sentencing principles,’[32] was based on an erroneous finding that he had ‘no prior convictions,’ and was entitled to have his ‘previous good character taken into account.’[33] This erroneous finding arose from BBXD’s lack of candor about his overseas convictions, which had clear potential to influence the Court’s reasoning and sentencing approach[34];
(d)9.1.1(1)(g)-(h): The frequency and cumulative effect of BBXD’s previously undisclosed New Zealand offending weighs against his application;
(e)9.1.1(1)(i): In 1999 BBXD failed to disclose his New Zealand offending on his incoming passenger arrival card;[35] and
(f)9.1.1(1)(k): BBXD’s New Zealand offences are classified as offences in Australia.
For the reasons outlined above the applicant’s offending is objectively very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 9.1.2 of the Direction states in part:
(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk it may be repeated may be unacceptable.
(2) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)        The nature of the harm to individuals or the Australian community should   the non-citizen engage in further criminal or other serious conduct; and
b)        The likelihood of the non-citizen engaging in further criminal or other   serious conduct, taking into account:
i. information and evidence on the risk of the non-citizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving   weight to time spent in the community since their most recent offence   (noting that decisions should not be delayed in order for rehabilitative   courses to be undertaken).
In Murphy v Minister for Home Affairs [2018] FCA 1924 at [37], Mortimer J reflected on the Tribunal’s consideration of risk:
‘…That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community… of how serious the risk was, or whether the risk should be “tolerated.”’
In Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213 (cited with approval by Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]), the following passage, at [111], related to what constitutes an unacceptable risk:
‘An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.’
(footnote omitted)
The 2016 sentencing remarks state that:
(a)BBXD’s offending occurred during a two-week period in 2015, was opportunistic, and took place in the context of heavy alcohol consumption, fatigue from a heavy workload, and unresolved grief relating to the death of family members.[36] While accepting that context Her Honour held it did not excuse BBXD’s conduct;[37]
(b)After the three incidents, the victim experienced very bad dreams and eventually told her mother what happened, which ‘made her feel bad and sad;’[38]
(c)When confronted by family members the applicant initially denied the allegations, which were not reported to police until approximately three months after the offending;
(d)On attending the police station the applicant made a ‘no comment record of interview,’[39] was formally charged approximately seven weeks later, and the matter resolved at committal prior to any witnesses being called;
(e)While there was no victim impact statement, the Court was satisfied from the child’s recorded evidence that she suffered hurt and upset. Her Honour considered the ‘potential for consequential harm in the nature of psychological harm is always present in these sorts of cases;’[40]
(f)The applicant acknowledged his breach of trust, demonstrated insight into the adverse effects on his granddaughter, and pleaded guilty at the committal before the child was called as a witness, which the Court said demonstrated genuine remorse;[41]
(g)The applicant sought treatment from a psychologist who diagnosed adjustment disorder with likely long term anxiety and additional problems with alcohol use, overwork, and sleep patterns.[42] A psychologist’s report tendered to the Court assessed the applicant as:
(i)a ‘low risk of reoffending,’ not ‘attracting a diagnosis of a specific sexual deviance’, and not having a ‘psychopathic personality disorder;’[43]
(ii)intermittently experiencing symptoms of depression since the end of his marriage in the early 1990s, which would have resulted in a diagnosis of adjustment disorder with depressed mood;[44] and
(iii)having alcohol as a primary risk factor for any future reoffending.[45]
(h)The applicant was receiving ‘offence specific treatment,’ had significantly reduced his alcohol intake prior to sentencing, and was considered suitable for a CCO;
(i)A SOATS report included a risk assessment that considered the applicant required a ‘low level of case prioritisation’ and was a ‘low risk…of future offending;’ and
(j)Until the offending against his granddaughter, the applicant was ‘a person who was otherwise of good character,’ with ‘no prior convictions,’ (sic) and was entitled to have his ‘previous good character taken into account’.
Her Honour did not consider there was a need in the applicant’s case to emphasise specific deterrence to the extent she otherwise would, because the applicant had taken steps to address his underlying offending behaviours and expressed a willingness to continue treatment.[46] Her Honour imposed as conditions of the CCO[47] that the applicant must undergo assessment and treatment for alcohol abuse and dependency, and participate in programs and/or courses to address his offending behaviour, particularly those recommended by the SOATS. Pursuant to s 34(1)(a) of the SORA, BBXD is required to comply with certain reporting conditions for a period of eight years following sentencing.[48]
In relation to his risk of recidivism, BBXD stated he constituted ‘zero’ risk and was able to ‘take more control of alcohol now’ than in the past. He claimed that work and alcohol previously controlled his life, but on relocating to a regional area, he had cut down his drinking, secured rewarding work, and has his life under control. He claimed to have completed all court-ordered requirements, including a two-year SOATS course and approximately three sessions of counselling.
The respondent’s submissions can be summarised as follows:
(a)Were the applicant to commit any further sexual offences, this could result in serious psychological and physical harm to the victim. Even a minimal risk of further sexual offences would not be tolerated by the Australian community. The applicant also has a history of non-sexual criminal offending in New Zealand. If offending of the nature disclosed in his New Zealand criminal history were repeated, the harm that may occur would likely result in loss or damage to property or physical harm to persons;
(b)In sentencing the applicant for ‘Indecent act with a child under 16,’ the sentencing judge noted that the applicant had expressed remorse for his offending, had significantly reduced his alcohol intake, and was undergoing offence-specific treatment and counselling. A court-ordered report by a clinical psychologist considered that the applicant had an adjustment disorder with a depressed mood, constituted a low risk of reoffending, and the primary risk factor for recidivism was alcohol use;
(c)Although the applicant’s offending occurred amidst a backdrop of grief and alcoholism, this does not explain nor excuse his offending. Why the applicant saw fit to sexually abuse a child on multiple occasions remains unexplained. In relation to the assessment that the applicant was a low risk of reoffending, it is appropriate to note that his New Zealand offences were not before the clinical psychologist or the court. The lengthy criminal history prior to his sexual offending against his granddaughter heightens the risk of re-offending. It should also be of concern that the applicant did not disclose this offending to the court-ordered clinical psychologist, raising questions about the reliability of the risk assessment; and
(d)There is a moderate risk of the applicant reoffending. However, even if the Tribunal were to consider the risk were low, such a risk is nonetheless unacceptable given the nature of the harm that would flow from further sexual offending committed against children, and should weigh heavily in favour of cancellation.
Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
BBXD’s Australian conviction was approximately 22 years after his last New Zealand convictions, which were for violent offences against his wife. It is noteworthy that his early crimes as a young adult in New Zealand were dealt with leniently, including by way of fines, community service, licence disqualifications, probation, social welfare supervision, and non-residential periodic detention. Despite previous opportunities to learn from his mistakes, BBXD continued to reoffend. His 1995 domestic violence convictions in New Zealand occurred at the age of 35. His sexual offence against a minor child in Australia was at the age of 54. It cannot be said that BBXD’s offending is isolated, impulsive or a product of his youth.
The Court dealt with BBXD’s sexual offending against his granddaughter without knowing about his New Zealand offending. The Tribunal does not accept BBXD’s submission that he made disclosures about some New Zealand offending, which is at odds with Her Honour’s sentencing remarks that he had no previous convictions. It is more probable that BBXD intentionally failed to disclose his New Zealand offending on arrival in Australia, to the court-appointed clinical psychologist, and to the Court. His lack of candour elevates recidivism concerns.
The Tribunal accepts that BBXD undertook the SOATS program, but there is a lack of probative evidence about what he specifically undertook during this course. Moreover, BBXD’s oral evidence about the behavioural changes he says resulted from completing that course was limited and unpersuasive. There are no certificates or corroborating expert evidence, and, on his own testimony, he did not attend all of the sessions during the alcohol module. There is a concerning and persistent association between BBXD’s alcohol abuse and offending. That is apparent from the drink-driving offences in New Zealand in 1985 and 1995, his evidence that alcohol became a real problem for him nine years ago, and his heavy drinking for approximately eight months proximate to the sexual abuse of his granddaughter. He currently claims to have ‘more control’ of alcohol, such that he can safely accommodate consumption on three nights a week following sporting and social events. The Tribunal is not satisfied on BBXD’s word alone that he has effectively dealt with alcohol as a persistent predisposing factor to his offending, which elevates concerns about his recidivism risk.

The Tribunal has residual concerns about inconsistencies and evasive answers in BBXD’s evidence about the assaults on his granddaughter. That includes his claim, subsequently rebutted by his own evidence, that he could not remember what occurred during the time he abused her until being confronted by the child’s father. Later in his evidence he recalled an occasion when he put his ‘hand on her backside,’ purportedly took steps to stop her from staying at his home, but recommenced the abuse on her return. BBXD’s abuse of his granddaughter only stopped as a result of him being confronted by the child’s parents. He did not act on earlier opportunities to cease offending or seek help after realising what he was doing ‘was bad.’ The Tribunal concludes he lacks complete insight into his offending, which elevates recidivism concerns.
The Tribunal accepts BBXD is remorseful and acutely ashamed of his conduct. He has taken some rehabilitative steps, undertaken limited counselling, and relocated to a regional area for a fresh start. But that is insufficient, in the Tribunal’s view, to persuasively ameliorate the underlying factors relevant to his offending. Given the totality of BBXD’s criminal history, unresolved alcohol problem, lack of candour in relation to his overseas offending, incomplete insight, and absence of recent expert evidence probative to his claimed changes in behaviour, the Tribunal considers the harm caused by a repeat of his sexual offending against a child is so grave, that even a low risk is unacceptable. The Tribunal has considered whether knowledge of BBXD’s overseas offending or his failure to disclose it to immigration authorities may have increased the ‘low’ risk assessment by the court-appointed psychologist and SOATS assessment. While there is certainly that potential, a considerable period of time had passed since BBXD’s last New Zealand offences in 1995. The Tribunal is unwilling to speculate on the effect that information may have had on expert risk assessments, beyond concluding it would not have diminished the assessment of risk.
The nature and seriousness of BBXD’s criminal conduct, coupled with an unacceptable risk or recidivism, weighs substantially in favour of visa cancellation.
Tribunal consideration: Best interests of minor children in Australia
Clause 9.2 of the Direction requires decision-makers to make a determination about whether revocation is, or is not, in the best interests of the child. This consideration applies only if the child is, or would be, under 18 years old at the time when the visa cancellation decision is expected to be made. It is not required that the applicant has a parental relationship with the child in question. If there are two or more relevant children, the best interests of each child should be given individual consideration, to the extent that their interests may differ.
In considering the best interests of the child, the following factors at cl 9.2(4) of the Direction must be considered where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
BBXD submits he is close to his grandchildren who live in Australia. He wants to remain in Australia and be a part of their lives.
The respondent submits that while the sentencing remarks refer to BBXD as ‘grandfather to some 14 grandchildren,’[49] his contribution to them is predominantly financial, and could continue if he were repatriated to New Zealand. Moreover, his five grandchildren in Australia live with their parents, and BBXD’s contact with them since his offending and relocation to a regional area has been substantially reduced. He could continue to maintain the relationships with his grandchildren by telephone if repatriated.
Tribunal findings: Best interests of minor children in Australia
BBXD is a registered sex offender who plays no parental role in respect of his Australian-based grandchildren and cannot have unsupervised contact with any minor child by virtue of his obligations under the SORA. When he was entrusted with a more prominent caring role for his four older grandchildren in the past, he sexually abused one of them.
Soon after his offending, BBXD was advised by a counsellor to stay away from his family and relocated to a regional area. His subsequent contact with grandchildren has been relatively infrequent and largely by telephone. The evidence about their continuing relationship rises no higher than his daughters claim that they ‘adore’ their grandfather. There is no evidence from the children’s father, who did not attend the hearing or submit a statement, about the desirability of contact with his children, or whether he shares his wife’s belief that BBXD is a ‘role model.’ The views of BBXD’s grandchildren are not known. On the limited available evidence, the Tribunal is unable to differentiate between the interests of BBXD’s Australian-based grandchildren, or determine the extent to which he is likely to play, or be allowed to play, a role in their lives. It is clear from the 2016 sentencing remarks and evidence from BBXD’s daughter, that the victim has suffered emotional trauma as a result of BBXD’s conduct. The extent to which he is able to re-establish a close relationship with the victim and his other grandchildren remains an open question.
The Tribunal accepts the general proposition that it is in the best interests of children to have access to their parents, grandparents and other close relatives where that is possible and desirable. Based on the largely speculative premise that some of BBXD’s grandchildren may want to have a continuing close relationship with him in the future, the Tribunal accepts it is in their best interests not to cancel his visa. But given the specific circumstances of this case, this primary consideration only weighs slightly against visa cancellation.
Tribunal consideration: Expectations of the Australian community
Clause 9.3 of the Direction states:
‘The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
In FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”), the Full Court of the Australian Federal Court dealt with the construction and application cl 11.3(1) (Expectations of the Australian community). Although this case refers to a different part of the previous Direction 65 (Part B) relating to visa refusal, the clause is in identical wording as cl 9.3 of the current Direction. The majority in FYBR held that this primary consideration is a ‘deeming’ provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[50] As Stewart J held at [104], ‘it is not the decision-maker who makes an assessment of community values on behalf of the community’.[51] His Honour summarised the community’s expectations at [101] and [103]:
101. Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.
…
103. …In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely...
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but that ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[52] The Direction helps inform the weight a decision-maker attributes to this primary consideration. For example, cl 6.3(3) of the Direction states that non-citizens who commit serious crimes, including ‘of a violent…nature, and particularly against women or children…should generally’ expect to forfeit the privilege of staying in Australia. That being said, use of terms like ‘should generally’ convey discretion and judgements turn on the specific circumstances of each case (cl 6.1(3)). The reasoning in FYBR also reflects the potential, inherent in cl 8(3) of the Direction, that: ‘Both primary and other considerations may weigh in favour of, or against...’ Moreover, it reinforces the flexibility in cl 8(4) that requires the government’s assessment of community expectations to be ‘generally…given greater weight than the other considerations,’ which ‘contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors…’[53]
BBXD stated during the hearing: ‘I love it here in Australia’ and if given another opportunity, he undertakes to live a law-abiding life.
The respondent submits that in circumstances where the applicant has committed a sexual offence against a child, as well as violent offences against a woman and other offences, the expectations of the Australian community are that his visa be cancelled, and this weighs substantially in favour of cancellation.
Tribunal findings: Expectations of the Australian community
The Tribunal considers it appropriate to act in accordance with the deemed community expectation that BBXD’s visa should remain cancelled. That follows from his sexual crime against a child in Australia and previously undisclosed overseas offences, which include violence against a woman. Given the specific circumstances of this case, this primary consideration weighs substantially in favour of cancellation.
OTHER CONSIDERATIONS
Tribunal consideration: International non-refoulement obligations
The applicant did not raise any claims, nor does the evidence disclose any plausible basis to suggest he would be harmed in New Zealand. Australia’s non-refoulement obligations are not enlivened as a relevant consideration in this matter.
Tribunal consideration: Strength, nature and duration of ties
Clause 10.2(1) of the Direction states:
… Reflecting the principles at 6.3, decision-makers must have regard to:
a)        How long the non-citizen has resided in Australia, including whether the non‑citizen has arrived as a young child, noting that:
i.          less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.         More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)        The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non‑citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The applicant has lived in Australia for approximately 20 years, having arrived here as an adult aged 39. In the 2016 sentencing remarks, Her Honour noted that the applicant was ‘a man who has made a real contribution to the community in the past through your active work history and also through the provision of financial and other support to your family.’ That contribution has been predominantly through employment and the Tribunal notes the reference from BBXD’s most recent employer in this regard.
In relation to the effect of visa cancellation on his family, BBXD said he has made his life in Australia and wants to remain close to his Australian-based relatives and support them into the future. He reflected about the new start he made after relocating to a regional community, where he is in a job he likes and engages in sporting and social activities with people whose company he enjoys.
The respondent submits that BBXD has resided in Australia for a ‘not insubstantial period’ of over 20 years and did not commit any offences here until 2015. BBXD’s contribution through work is also acknowledged. However, the respondent points to a dearth of specific evidence regarding BBXD’s familial or social links in Australia, which it is submitted does not persuasively point to any practical or emotional hardship in the event his visa remains cancelled. The respondent contends this consideration should be given limited weight in favour of not cancelling the visa.
Tribunal findings: Strength, nature and duration of ties
BBXD has lived in Australia for 20 years during which he displayed a strong work ethic and a sustained commitment to providing practical and financial support to his family. More weight is placed on this consideration to reflect the consistently positive contribution he has made.
The Tribunal accepts BBXD has enjoyed a particularly close relationship with his daughter, son-in-law and their children since supporting their relocation to Australia in 2012. For the reasons previously adduced, these family relationships have been challenged following his conviction. That being said, it is accepted he remains particularly close to his daughter who provides unconditional love and support in difficult circumstances.
Notwithstanding a dearth of corroborating evidence, the Tribunal accepts BBXD has an established network of friends and work colleagues in the regional area he relocated to in 2015. It is to his credit and a mark of his resilience that he was able, in his mid-50s, to relocate to a new area, secure fulltime work, and establish community links through sport and social interaction. There is limited evidence, however, about the precise impact of his possible repatriation on these people. Apart from the letter provided by his most recent employer, which does not refer to BBXD’s offending, there is little evidence on which to base judgements. The Tribunal is satisfied, however, that BBXD would be missed by his daughter in particular and other friends and relatives if unable to remain in Australia. There is no evidence, however, that those who wanted to stay in touch could not do so by telephone, mail or other avenues, or visit him in New Zealand. The evidence of his daughter, for example, is that she has visited New Zealand in 2016. It is also clear from the evidence that the majority of BBXD’s family, with whom he claims to have continuing good relations, reside in New Zealand and not Australia. On balance, however, this consideration weighs moderately against exercising the discretion to cancel BBXD’s visa.
Impact on Australian business interests
Clause 10.3(1) of the Direction states:
Impact on Australian business interests if the non-citizen’s visa is cancelled, noting that an employment link would generally only be given weight where visa cancellation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The letter from BBXD’s former employer dated 6 January 2020 could be seen as potentially enlivening this consideration, particularly the reference to BBXD’s departure disrupting the company’s operations and placing an additional burden on remaining staff. The author did not give evidence at the hearing and could not be cross-examined on the nature of any business disruption.
There is no corroborating evidence that BBXD’s absence from his former work duties has had any significant impact on company operations, or risks compromising the delivery of a major project or an important service in Australia. The evidence does not displace the presumption in the Direction that weight would generally only be given where visa cancellation significantly compromises the delivery of a major project, or delivery of an important service. Having regard to the evidence, the Tribunal finds this consideration is not enlivened and it is consequently given no weight.
Impact on victims
Clause 10.4(1), of the Direction states:
Impact of a decision not to cancel a visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for visa cancellation has been afforded procedural fairness.
There is no evidence from the victim of BBXD’s offending about the impact of a decision in this matter. BBXD’s daughter did give evidence at the hearing and is the mother of the victim. She said that her children, which the Tribunal inferred included the victim, ‘adored’ BBXD, but acknowledged the adverse effects that BBXD’s offending had caused. The victim had subsequently attended counselling to help ‘get her mind settled’ and her mood since the offending had been ‘up and down.’ The submissions by BBXD’s daughter must be viewed in the context of the other evidence, including the unacceptable risk BBXB poses and his continuing obligations under the SORA, which preclude contact with his granddaughter and other children. Moreover, the evidence of BBXD’s daughter, as it relates to unconditional support of her father, has been weighed under ‘Strength, nature and duration of ties’ and ‘Extent of impediments if removed.’ In weighing the impact of a decision on victims not to cancel BBXD’s visa with the other evidence, the Tribunal finds this consideration has neutral impact and is given no weight.
Tribunal consideration: Extent of impediments if removed
Clause 10.5(1) of the Direction states that:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)        The non-citizen’s age and health;
b)        Whether there are substantial language or cultural barriers; and
c)        Any social, medical and/or economic support available to them in that country.
BBXD is 59 years old and stated during his oral evidence that he has no diagnosed medical or psychological conditions. He expresses a desire to return to remunerative work as soon as possible to help support his family, and to continue working until the age of 70.

BBXD left New Zealand at the age of 39. He speaks English and ‘a little bit of Maori.’ Most of his family lives in New Zealand, including his father, four siblings, an aunt and nine grandchildren. He refers to a close relationship with all of his family, speaks to them frequently, and provides financial support to some.
The respondent submits that BBXD faces no language or cultural barriers if returned to New Zealand. Further, he has not put forward any physical or psychological issues posing an impediment to his successful reintegration into New Zealand society. The respondent acknowledges, however, that BBXD would face a period of transition and adjustment if returned to New Zealand, but submits that any impediments are not insurmountable. The respondent refers to BBXD’s extensive family in New Zealand as potential sources of practical and emotional assistance.
Tribunal findings: Extent of impediments if removed
The Tribunal finds that:
(a)BBXD was born and raised in New Zealand, was educated there, and worked in a variety of work roles until the age of 39. He retains a close familiarity with New Zealand and there is no apparent cultural or linguistic impediment to his return. That being said, BBXD has spent the last 20 years in Australia with the intention of residing here permanently. He has established friendship and work links that are not currently available to him in New Zealand;
(b)There is no evidence BBXD would be unable to work as the result of any medical or psychological condition. The Tribunal prefers his oral evidence in this regard to the psychological assessment prepared for the Court in 2016,[54] which is based on contextually different circumstances. BBXD reports that since relocating to regional Victoria, he works shorter hours in a job he loves, and has reduced his stress and alcohol consumption. There is no current health-related impediment to BBXD’s repatriation;
(c)BBXD’s history of consistent employment suggests he has reasonable prospects of finding work in New Zealand. He has a demonstrated capacity to independently support himself and others. That being said, BBXD is approaching an age where many people start to think about transition from work or retirement. Notwithstanding his aspiration to continue working until 70, his ability to do so may be impeded by factors like age, future illness, or a lack of work connections. If he was unable to secure stable accommodation or work in New Zealand, or if he needed medical treatment, there is no evidence he would not have access to the same social, medical, and income support available to other New Zealand citizens. Moreover, he has an extensive family support network in New Zealand, from which he may be able to draw practical and emotional support;
(d)Repatriation to New Zealand would separate BBXD from the new connections he has established since 2015. Given his resilience in establishing a new life for himself after relocating to a regional area, the Tribunal considers he would be similarly able to re-establish himself in New Zealand if returned;
(e)There is no evidence that any outstanding counselling or other rehabilitative steps BBXD may choose to pursue cannot be accessed in New Zealand; and
(f)BBXD would be confronted by the disruption of re-establishing himself in a country he last lived in approximately 20 years ago.
On balance, this consideration weighs moderately in favour of not exercising the discretion to cancel BBXD’s visa.
Other Considerations
No additional considerations were advanced, nor has the Tribunal identified any additional ‘other considerations’ that are relevant to the specific circumstances of this application, as provided for at cl 10(1) of the Direction.
CONCLUSION
BBXD does not pass the character test by virtue of being convicted of sexual offending against a child. He is undoubtedly remorseful and ashamed. He has taken some rehabilitative steps, undertaken limited counselling, and relocated to a regional area for a fresh start. But the totality of his criminal history is very serious. His unresolved alcohol problem, lack of candour relating to overseas offending, incomplete insight, and the absence of recent expert evidence probative to his claimed changes in behaviour, leads the Tribunal to conclude that his risk of recidivism is unacceptable.
BBXD is a registered sex offender who plays no parental role for his grandchildren and cannot have unsupervised contact with any child by virtue of his SORA obligations. His contact with Australian-based grandchildren following his offending has largely been by telephone. On the limited evidence, the Tribunal is unable to differentiate between the interests of these grandchildren, or the extent to which he is likely to play, or be allowed to play, a continuing role in their lives. The Tribunal accepts the general proposition that it is in the best interests of children to have access to their parents, grandparents and other close relatives where that is possible and desirable. Based on the largely speculative premise that some of BBXD’s grandchildren may want to continue their relationship with him in the future, the Tribunal accepts it is in their best interests not to cancel his visa.
BBXD has breached the trust of the Australian community by acting contrary to the expectation that visa holders will remain law-abiding and truthful in their dealings with the authorities. He should expect to forfeit the privilege of staying in Australia and it is considered appropriate to act in accordance with the deemed community expectation that his visa should remain cancelled.
BBXD has lived in Australia for 20 years, displayed a strong work ethic, and supported family members here and in New Zealand, which weighs in his favour. He remains particularly close to his daughter in Australia, who provides unconditional love and support in difficult circumstances. BBXD has also established a network of friends and work colleagues in the regional area he relocated to in 2015. This demonstrates commendable resilience and adaptability. There is limited evidence, however, about the impact of a decision in this matter on those with a permanent right to remain in Australia.
BBXD was born and raised in New Zealand, was educated there, and worked in a variety of roles until the age of 39. There is no apparent cultural or linguistic impediment to his return. That being said, he has spent the last 20 years in Australia with the intention of residing here permanently and has established friendship and work networks that are not currently available to him in New Zealand. If repatriated, he would experience inevitable disruption in in a country he last lived in two decades ago.
There is no current health-related impediment to BBXD’s repatriation. He aspires to return to and remain in work until the age of 70. His history of consistent employment in Australia suggests reasonable prospects of employment in New Zealand. He also has considerable family support to draw upon. That being said, if he were unable to secure stable accommodation or work in New Zealand, or if he needed medical treatment, there is no evidence he would not have access to the same social, medical, and income support available to other New Zealand citizens.
Having weighed all of the considerations individually and cumulatively, the Tribunal finds the discretion should be exercised to cancel BBXD’s visa. That is because the primary considerations ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ weigh substantially in favour of cancellation. These outweigh the primary consideration ‘Best interests of minor children’ which weighs slightly against cancellation and other considerations of ‘Strength, nature and duration of ties’ and ‘Extent of Impediments if removed,’ which both weigh moderately against cancellation.
DECISION
It follows that the discretion under s 501(2) of the Act should be exercised to cancel BBXD’s visa and the Tribunal affirms the decision under review.

I certify that the preceding 97 (ninety-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

……[sgd]…………………………….
Associate
Dated: 21 February 2020

Date of hearing: 17 February 2020

Applicant: In person

Advocate for the Respondent: Ms Melinda Jackson

Solicitors for the Respondent: Australian Government Solicitor

[1] Exhibit R1, 79-81.
[2] Ibid, 40 [39].
[3] Ibid, 33.
[4] Ibid, 242.
[5] Ibid, 38.
[6] Ibid, 34-45.
[7] Ibid, 28-31.
[8] Ibid, 24.
[9] Ibid, 26-27.
[10] Director of Public Prosecutions v Rory Callaghan (A Pseudonym) [2016] VCC 1718.
[11] Exhibit R1, 28.
[12] Ibid, 18 [4].
[13] Ibid, 79-81.
[14] Ibid, 82.
[15] Ibid, 1-6.
[16] Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth), 10 [48] -11 [50].
[17] The Federal Court has reinforced the importance of adhering to the two-step process mandated by s 501 of the Act. See for example: Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67 at 69 (Edmonds J); Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113 at 119 (Nicholas J, Moore and Rares JJ agreeing).
[18] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, at [9] per Collier, Flick and Perry JJ. See also: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J.
[19] Exhibit R1.
[20] Exhibit A1.
[21] Exhibit A2.
[22] Exhibit R1, 24.
[23] Ibid, 25-27.
[24] Ibid, 93-96.
[25] Ibid, [2].
[26] Ibid, 36 [14].
[27] Ibid, 37 [17].
[28] Ibid, 27 [16].
[29] Ibid, 26-27.
[30] Ali v Minister for Home Affairs [2019] FCAFC 93 at [32], reflecting favourably on Brown v Minister for Immigration and Citizenship [2010] FCAFC 33 at [11]-[12] per Rares J and at [114] per
Nicholas J (Moore J agreeing).
[31] Exhibit R1, 41 [44].
[32] Ibid, 41 [48].
[33] Ibid, 41 [46].
[34] Ibid, 40 [40]; 41 [45].
[35] Ibid, 242.
[36] Ibid, 38 [28].
[37] Ibid,38 [29].
[38] Ibid, 36, [10].
[39] Ibid, 36 [13].
[40] Ibid, 37 [18].
[41] Ibid, 39 [32]-[36].
[42] Ibid, 39 [37].
[43] Ibid, 40 [38]-[39].
[44] Ibid, 40, [39].
[45] Ibid, 40 [41].
[46] Ibid, 41-42 [49].
[47] Ibid, 42 [53].
[48] Ibid, 42 [55].
[49] Ibid, 37 [23].
[50] FYBR at [66] per Charlesworth J; and [91] per Stewart J.
[51] FYBR at [104] per Stewart J.
[52] FYBR at [75]-[76] per Charlesworth J.
[53] FYBR at [76] per Charlesworth J.
[54] Exhibit R1, 39 [37].

[2020] AATA 280

21 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies

Date of hearing:	17 February 2020
Applicant:	In person
Advocate for the Respondent:	Ms Melinda Jackson
Solicitors for the Respondent:	Australian Government Solicitor