BLBY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 2282

BLBY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2282 (15 July 2022)
Division:GENERAL DIVISION
File Number(s): 2022/3387
Re:BLBY
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:L M Gallagher, Member
Date:15 July 2022
Place:Perth

The Reviewable Decision, being the decision of the Delegate dated 21 April 2022, not to revoke the mandatory cancellation of the Applicant’s Protection (Class XA) (subclass 866) (Permanent) visa pursuant to s501CA(4) of the Migration Act 1958 (Cth) is affirmed.
.............[Sgd]...........................................................
L M Gallagher, Member
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – criminal record – sexual offence against a child – Direction No. 90 – primary and other considerations – protection of the Australian community – family violence – nature and seriousness of criminal offending – risk to the Australian community – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties to Australia – Applicant is a 40-year-old man who came to Australia as a 27-year-old – non-refoulement obligations –Sri Lanka – extent of impediments if returned to Sri Lanka – reviewable decision affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth
CASES
AIO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1105
Afu v Minister for Home Affairs [2018] FCA 1311
Bread Manufacturers of NSW v Evans (1981)180 CLR 404
BSJ16 v Minister for Immigration & Border Protection[2016] FCA 1181
BVLD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 6
CKL21 v Minister for Home Affairs [2022] FCA 1019
CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514
CZCV and Minister for Home Affairs [2019] AATA 91
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Ezegbe v Minister for Immigration and Border Protection (2019) 164 ALD 139
FYBR v Minister for Home Affairs [2019] FCAFC 185
GBV18 v Minister for Home Affairs [2020] FCAFC 17
Hambledon v Minister for Immigration & Border Protection[2018] FCA 7
Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3445
Jagroop and Minister for Immigration and Border Protection [2015] AATA 751
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Kelly and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396
LDDW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 255
LTT v State of Western Australia [2022] WASCA 31
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180
Minister for Home Affairs v HSKJ (2018) 266 FCR 591
Minister for Home Affairs v Omar (2019) 272 FCR 589
Musgrave v The State of Western Australia [2021] WASCA 67
Nigro v Secretary to the Department of Justice(2013) 41 VR 359
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Suleiman v Minister for Immigration & Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration & Border Protection (2014) 225 FCR 424
WAD 230/2014 v Minister for Immigration & Border Protection (No 2) [2015] FCA 705
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation Under s501 and Revocation of a Mandatory Cancellation of a Visa Under s501CA (20 December 2018)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 90: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (08 March 2021) – paras 2, 3, 4(1), 5.1, 5.1(2), 5.1(3), 5.1(4), 5.2, 5.2(5), 6, 7, 8, 8(1), 8.1(1), 8.1(2), 8.1.1(1), 8.1.2, 8.1.2(1), 8.1.2(2), 8.3, 8.4, 9, 9.1, 9.2, 9.3, 9.4.
Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
REASONS FOR DECISION
L M Gallagher, Member
15 July 2022

The Applicant seeks review of a decision made by a delegate of the Respondent
(the Delegate) on 21 April 2022 not to revoke, under s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act), the mandatory cancellation of the Applicant’s Protection (Class XA) (subclass 866) (Permanent) visa (the Visa) under s 501(3A) of the Migration Act (the Reviewable Decision).
The application for review was lodged with the Administrative Appeals Tribunal (the Tribunal) on 28 April 2022,[1] within the time prescribed by s 500(6B) of the Migration Act. The application for review of the Reviewable Decision is made in accordance with s 500(1)(ba) of the Migration Act, which allows applications to be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
[1]R1, G2.
The hearing was held on 21 June 2022 at the Tribunal in Perth. The Applicant was represented by Mr Selvadurai Raveendran of Ravi James Lawyers, instructing Mr Chris Oldham, of Counsel. The Respondent was represented by Mr Andrew Shinnick of Minter Ellison, instructing Mr Cheyne Beetham, of Counsel. The Applicant, his representatives and witness appeared by Microsoft Teams and telephone. The Respondent’s representatives appeared in person.
APPLICANT’S IDENTITY
Pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), the Tribunal ordered that the name and address of the Applicant and any member of his family, and the name, address or any other information tending to reveal the identity of the victim of the Applicant’s offending for which he was sentenced, not be published. As such, the Tribunal has assigned to the Applicant the pseudonym BLBY.
BACKGROUND FACTS
The Applicant is a 40-year-old man who was born in Sri Lanka and is a citizen of Sri Lanka. He is married with three children aged 15, 10 and 8 years of age, respectively.[2] He has been employed since he came to Australia and has volunteered in Sri Lankan community and religious associations.[3]
[2]The Applicant and his wife were married in Sri Lanka on [date]. The Applicant’s eldest child (his daughter) was born in Sri Lanka. The Applicant’s two sons were born in Australia. The Applicant’s wife and children are Australian citizens. See for example A1 [2], R1, G32, p124; G33, p125; G44 and transcript pp 63 and 64.
[3]A1 [2]; R1, G32, p 124; G35, p 127.
The Applicant arrived in Australia on 30 June 2009 as an unauthorised maritime arrival.[4]
[4]R1, G86, p 374.
On 17 March 2010 the Applicant was granted the Visa.[5]
[5]R1, G86, p 374.
Applicant’s offending
The Applicant’s criminal history is set out in a National Police Certificate, dated 4 January 2017.[6]
[6]R1, G6.
On 2 December 2016, the Applicant was sentenced to a term of imprisonment of 18 months by the District Court of Western Australia.[7] The details of this conviction are recorded as follows:
[7]R1, G6.

Court
Court Date

Offence

Court Result

Perth District Court of Western Australia
02 Dec 2016 Sexually penetrated a child over 13 and under 16 Imprisonment: 18 Months concurrent
from 22.11.16

The Applicant has no other known criminal history in Australia or Sri Lanka.
The Applicant is currently detained at Yongah Hill Detention Centre in Western Australia.
Present proceedings
On 07 March 2017, the Visa was cancelled by the Delegate under subsection 501(3A) of the Migration Act (the Cancellation Decision).[8] The Visa was cancelled on the basis that the Applicant did not pass the character test in s 501(7)(c) of the Migration Act, by virtue of his having been sentenced to a term of imprisonment of 12 months or more.[9]
[8]R1, G5, p 20.
[9]R1, G5 [4]. See Sections 501(6)(a) and 501(7)(c) of the Act. The Tribunal also notes that given s 501(6)(e)(i) of the Act, the Applicant would not have passed the character test irrespective of the term of his sentence, and in any event, given he was convicted of a sexually based offence involving a child.
On 3 April 2017 the Applicant requested the Cancellation Decision be revoked under s 501CA of the Migration Act and made representations in that regard.[10]
[10]R1, G8.
[11]R1, G9 to G44.
These representations were accompanied by a large number of attached documents.[11]
On 30 May 2017, 30 January 2018, 12 February 2018, 27 April 2019, 19 February 2020, and 22 January 2021 the Applicant provided further submissions and documents in support of his application for revocation.[12]
[12]R1, G45 to G62; G64 to G73; G75 to G77; G88.
On 28 March 2018, the Minister's Department began an International Treaties Obligations Assessment (ITOA) in order to assess whether the Applicant’s circumstances engage Australia’s non-refoulement obligations.[13]
[13]R1, G80.
On 11 September 2019, the Department wrote to the Applicant inviting him to comment on information related to the ITOA and in particular on various matters which in the view of the Department may mean that the Applicant's circumstances do not engage Australia's non-refoulement obligations.[14]
[14]R1, G81.
On 3 November 2019, the Applicant made submissions in response to the invitation to comment on the matters raised in respect to the ITOA.[15]
[15]R1, G82.
On 23 July 2020, the Department further invited the Applicant to comment on information related to the ITOA.[16]
[16]R1, G83.
On 30 September 2020, the Applicant made further submissions in respect to the ITOA and provided a letter of support from the President of the Tamil Congress (WA).[17]
[17]R1, G84 to G85.
On 1 December 2020, the Department completed the ITOA and concluded that the Applicant was not a person in respect of whom Australia had non-refoulement obligations.[18]
[18]R1, G86.
On 22 January 2021, the Applicant provided submissions in response to the ITOA decision.[19]
[19]R1, G87.
After considering the Applicant’s representations, the Delegate made the Reviewable Decision on 21 April 2022.[20] The Applicant was notified of the Reviewable Decision on the same date.[21]
[20]R1, G4.
[21]R1, G2, p 7.
On 28 April 2022, the Applicant lodged an application in the General Division of the Tribunal for review of the Reviewable Decision.[22] Therefore, the Applicant filed his application for review within the nine-day period prescribed by s 500(6B) of the Migration Act.
[22]R1, G2.
In his application for review, the Applicant stated that he was seeking review of the Reviewable Decision because the decision had not properly considered all of his claims.[23]
[23]R1, G2, p 8.
ISSUES
The Applicant does not dispute that he does not pass the character test.[24] The Tribunal, in any event, so finds: s 501(6)(a) and 501(6)(e) of the Migration Act preclude a person from passing the character test if they have a “substantial criminal record,” which includes a person who has been sentenced to a term of imprisonment of 12 months or more,[25] or if they have been convicted in an Australian court of a sexually based offence involving a child. On the basis that on 2 December 2016, the Applicant was sentenced to a term of imprisonment of 18 months[26] for the offence of “sexually penetrated a child over 13 and under 16”[27] he has a substantial criminal record as defined and therefore does not pass the character test.
[24]A1 [3]; Transcript, p 8 [35] and p 10 [15].
[25]s 501(7)(c) of the Migration Act.
[26]See [9] above.
[27]Pursuant to s 321(2) of the Criminal Code Act Compilation Act 1913 (WA).
Accordingly, the remaining issue is whether the Tribunal should exercise the power in s 501CA(4) of the Migration Act to revoke the Cancellation Decision.[28] That will require determination under s 501CA(4)(b)(ii) of the Migration Act, as to whether there is “another reason”[29] why the decision to cancel the visa should be revoked,[30] having regard to the primary and other considerations in Direction No. 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (Direction No. 90).[31]
[28]Direction No. 90 para 5.1(3).
[29]See BVLD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 6 at [19] and [21].
[30]
[31]Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), (08 March 2021).
The Tribunal’s decision must be made within the 84-day period after the day on which the Applicant was properly notified of the Reviewable Decision, in accordance with s 501G of the Migration Act. If the Tribunal does not deliver a decision by the end of this date, the Reviewable Decision will be taken to be affirmed, under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (pursuant to s 500(6L) of the Migration Act).
The 84-day period for the Tribunal to decide this matter ends on 15 July 2022.
LEGISLATIVE FRAMEWORK
Migration Act
Mandatory cancellation of a visa under s 501(3A) of the Migration Act
Section 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test
Section 501(6) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by
subsection (7)); or
…
(e) a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child;
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of
12 months or more; or …
(Original emphasis.)
Power to revoke cancellation decision
Section 501CA of the Migration Act further provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
(Original emphasis.)
Section 501E(1) of the Act provides that visa cancellation precludes a person within the migration zone from applying for, or obtaining, certain other classes of visa. However, under s 501E(2) of the Act, the preclusion does not apply to applications for a Protection Visa or a Bridging Visa pending a person’s removal.
Refusal of a Protection Visa application, or relevantly, cancellation of a Protection Visa, precludes a further Protection Visa application, subject to the favourable exercise of a Ministerial public interest discretion.[32]
[32]Sections 48A and 48B of the Act.
Direction No. 90
Pursuant to s 499(1) of the Migration Act, the Minister may give written directions to a person or body exercising powers under the Migration Act if those directions are about the performance of those functions or the exercise of those powers. Further, s 499(2A) of the Migration Act provides that a person or body must comply with such a direction.
On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (as he then was)[33] made Direction No. 90 under s 499 of the Migration Act. Direction No. 90 commenced operation on 15 April 2021, replacing the previous Direction No. 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (Direction No. 79), which was revoked on the same date.[34]
[33]From 1 July 2022, the title has changed to Minister for Immigration, Citizenship and Multicultural Affairs.
[34]Direction No. 90 paras 2–3.
The Tribunal notes that the Reviewable Decision was made by the delegate applying Direction No. 90, which was the Ministerial direction in force at the time that the decision was made. As there are no transitional provisions in Direction No. 90, all decisions made on or after 15 April 2021 must apply that direction, as the Tribunal must apply law and policy in place at the time that it makes a decision.[35]
[35]See the discussion of the application of previous directions made under Jagroop and Minister for Immigration and Border Protection [2015] AATA 751 upheld on appeal in Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461.
The purpose of Direction No. 90 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[36] In exercising the power under s 501CA(4) of the Migration Act, the Tribunal must have regard to the primary and other considerations set out in Direction No. 90.[37]
[36]Direction No. 90 para 5.1(4).
[37]Direction No. 90 para 6.
Paragraph 5.1 of Direction No. 90 sets out ‘[o]bjectives’, with para 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.

Paragraph 5.2 of Direction No. 90 sets out ‘[p]rinciples’ which must be taken into account by decision makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’ and are expressed as follows:
(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)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian Community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by any other non-citizens 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.
(5)Decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in para 5.2 of Direction No. 90, the Tribunal must take into account the primary considerations listed in para 8, and the other considerations listed in para 9, where relevant having regard to the specific circumstances of the case, in deciding ‘whether to revoke the mandatory cancellation of a non-citizen’s visa’.[38]
[38]Direction No. 90 para 6; see also the definition of ‘decision-maker’ in para 4(1) of Direction No. 90, which includes the Tribunal.
The primary considerations in Direction No. 90, in deciding whether to revoke the refusal or cancellation of a non-citizen’s visa, are:[39]
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia; and
(4) expectations of the Australian community.
[39]Direction No. 90 para 8.
Paragraph 9 of Direction No. 90 sets out other considerations that the decision maker must take into account. It relevantly provides that:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests.
Further guidance as to how a decision-maker is to apply the considerations in

Direction No 90 can be found in para 7, ‘[t]aking the relevant considerations into account’, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
EVIDENCE
The Applicant gave oral evidence at the hearing and was cross-examined. The Applicant called only the Applicant’s wife (TJ) as a witness.
The Tribunal admitted the following documents into evidence at the hearing:
(a)Applicant's Statement of Facts, Issues and Contentions (SFIC), filed on 15 June 2022 (A1);
(b)Respondent’s G Documents, being a 438-page set of documents provided under s 501G of the Act numbered G1 to G91 (R1);
(c)Respondent’s Supplementary G Documents, being a 62-page set of documents provided under s 501G of the Act numbered S1 to S2 (R2);
(d)Respondent’s SFIC filed on 27 May 2022 (R3); and
(e)Respondent’s Reply Submissions filed on 17 June 2022 (R4).
The Tribunal has taken into account the letters of support and statutory declarations of the Applicant’s family and friends, previously provided and contained within R1.[40]
[40]See R1, G21 – G30, G36 – G40 (duplicated at G53 – G60, G67 – G68), G70 and G85.
The Applicant
The Applicant adopted his statements dated 28 March 2017 and 2 April 2019.[41]
[41]R1, G12 and G66; Transcript, pp 30-33.
In his statements and other materials,[42] and orally at hearing the Applicant gave the following evidence:
[42]See R1, G12, G32, G42 and G66.
(a)
Prior to his being imprisoned, he supported his family by working as a cleaner.[43]
[43]Transcript, p 17 [25]-[35].

His wife did not work at that time, but she was studying English.[44]
[44]Transcript, p 19 [5].
(b)While he was in prison, his wife supported their children by relying on friends to bring food, by receiving Centrelink benefits and from the monies received from the sale of their “two or three” motor cars.[45]
[45]Transcript, p 21 [20]-[25].
(c)He is afraid of the prospect of returning to Sri Lanka because his brothers were killed by the Sri Lankan army.[46]   He believes there is a continuing danger to his life[47] because he belongs to the Tamil community and because the Sri Lankan authorities suspect he belonged to the LTTE.[48] If his family follows him to Sri Lanka they will similarly be killed.[49]
[46]R1, G12; G66, p 223, p 225.
[47]R1, G12; G32 p 124; G33, p 125; G66, p 224.
[48]Referring to the Liberation Tigers of Tamil Eelam; Transcript, p 22 [35]-[45]. During cross-examination, the Applicant confirmed that although the Sri Lankan authorities believe so, he is not a member of the LTTE; Transcript, p 30 [25]-[30].
[49]R1, G34, p 126.
(d)
He could not bear abandoning his family to fend for themselves in Australia.[50]
[50]R1, G12.

It would be a great burden on his wife to raise their child alone in Australia.[51]
[51]R1, G66, p 224.

His children, in particular, love being in Australia, attending school and being with their friends.[52] His wife continues to support him.[53] He loves his wife and children very much and enjoys spending time with them.[54]
[52]R1, G12.
[53]R1, G12.
[54]R1, G34, p 126; G66, p224.
(e)He and his wife do not have any other family in Australia and rely on each other for support.[55]
[55]R1, G33, p 125.
(f)His friends who wrote references in support of him understand that he committed an offence and that he was imprisoned.[56] His friends, JV[57] and PP[58], for example, are aware of why he went to prison and continue to support him.[59]
[56]Transcript, p 23 [10]-[15].
[57]R1, G24, p 109.
[58]R1, G27, p 114.
[59]Transcript, pp 24-25.
(g)As to the following extract from his statement dated 28 March 2017:[60]
[60]R1, G12, p89. Similarly, the Applicant stated he is very remorseful “for the circumstances that caused him to be in [sic] Detention Centre” (R1, G66, p 223).
I am very remorseful about the circumstances that coursed [sic] me to be in prison and I can reassure the Australian Government that the behaviour that led to my imprisonment will never again. I have rehabilitated myself and I totally reject my previous actions which were so wrong.
The Applicant said he recalled writing those words, with full understanding and an understanding of what “remorse” means.[61] He said he has told his wife that he is remorseful and sorry for what he did.[62]
[61]Transcript, p 28 [35]-[45].
[62]Transcript, p 29 [20]-[25].
(h)Referring again to the paragraph extracted from his statement at [49(e)] above, the Applicant agrees that does not identify what his previous actions were nor does it mention that the actions were sexual offending against a child.[63]
[63]Transcript, p 35 [5]-[10].
(i)The Applicant said he did not fully disclose the nature of his offending in his statement because he did not want other people in the detention centre to come to know and he thought they were (already) aware, not because he did not accept that the offending occurred.[64]
[64]Transcript, p 35 [20]-[35].
(j)The Applicant speaks with his wife and children four to five times a day.[65]
[65]Transcript, p 29 [5]; R1, G33, p 125.
(k)As to his reiteration to Brooke Chapman, Social Worker, at their meeting in 2017[66] that “…this crime was a silly error on his behalf, moment of weakness…” [67] the Applicant said that the crime he committed was a “mistake,” that “this has happened by an error, by an oversight,” “as an accident” and he “did not do it purposely.”[68]
[66]Related report dated 30 March 2017 at R1, G10.
[67]R1, G10, p 61 (page 6 of report).
[68]Transcript, p 37 [30]-[45].
(l)The Applicant had also used the word “mistake” in describing to his friends as to what had occurred when he committed the offence.[69] He did not fully disclose to his friends the details of the offending so as “not to spoil the reputation of that girl.”[70]
[69]Transcript, p 38 [30]-[45].
[70]Transcript, p 41 [5].
(m)As to the detail he did disclose to his friends about his offending, he told people, including all of the people who gave character references for him, that the offence was a sexual offence against a child,[71] and that:[72]
[71]Transcript, p 41 [15]-[40].
[72]Transcript, p 42 [20]-[30].
INTERPRETER:          I told my friends that while I was taking her in my car, I put my hand on her body, which is a big error.
MR BEETHAM:            Did you tell them that a court found that you had inserted a finger or fingers into her vagina?
…
INTERPRETER:         I did not specifically or exactly mention that I put the   fingers there. I did not exactly mention the place, because I felt it was not a civilised thing.
MR BEETHAM:          All right. Do you accept that the offending you have been convicted of is very serious offending?
INTERPRETER:       Yes.
(n)Mr Beetham then asked the Applicant a number of times to explain to the Tribunal why he used the words "mistake"[73] and "oversight" to describe what is very serious offending.[74] The Applicant maintained he made a mistake and that he understands it is a serious offence.[75]
[73]See also R1, G66, p223 and p225 for example, where the Applicant refers to his offending conduct as “the mistake” he has committed.
[74]Transcript, pp 42-43.
[75]Transcript, pp 43-44.
(o)As to the note recorded by his counsellor on 6 April 2018[76] that he:
[76]See clinical record of International Health and Medical Services (IHMS) counsellor at R1, G71, p 270.
Described the circumstances surrounding his charge where it was alleged that he inappropriately touched two girls who were his friends’ daughters…[BLBY] stated that he…did not do [sic] commit the crime he was accused of…
And on 13 April 2018[77] that he had read from the IHMS notes dated 6 April 2018 and:
[77]See clinical record of IHMS counsellor at R1, G71, p 267.
…clarified that there were two girls, (friends daughters) [sic] who he dropped home but it was alleged that he only touched one girl.
The Applicant maintained that he had not before read the IHMS notes dated 6 April[78] 2018 and then stated that he could not remember.[79]
[78]Transcript, p 49 [40]-[45].
[79]Transcript, p 50 [40].
(p)As to the record that he wanted to appeal the decision but did not due to legal costs,[80] the Applicant said he did not tell the counsellor that,[81] that he might have mentioned that he wanted to appeal the visa cancellation decision, but not against “this order, this fine.”[82]
[80]See clinical record of IHMS counsellor dated 22 May 2018 at R1, G71, p 239.
[81]Transcript, p 51 [5].
[82]Transcript, p 51 [20]. When given the opportunity, the Applicant was unable to offer an explanation for the inconsistency in his evidence on this point (Transcript, p 51 [25]-[40].
(q)As to the Applicant having denied his offending to the police,[83]
[83]See WA Police Statement of Material Facts dated 30 September 2015 which records the Applicant having stated he initially denied ever having driven the girls home, before claiming his wife had been with them during the drive, then denying the offending and then claiming he had been set up by the victim’s mother (R2, S1, p 10).
INTERPRETER:          Yes, in the very beginning, firstly, when I was taken by the police, due to fear, I suppress the fact. Suppress the truth.   Thereafter, with the advice of my lawyer, I told the truth and I was sentenced by the jury.
MR BEETHAM:            Well, you lied to the police, didn't you? You told them that you didn't drive the girls home?
INTERPRETER:          Maybe the beginning I might have. There's a possibility that I would have told like that, but I have told afterwards the truthful.
MR BEETHAM:            And then you denied the offending for trial, is that right?
INTERPRETER:          Yes. I denied (indistinct) in the beginning. Thereafter they sentenced me for having committed that offence.
MR BEETHAM:            And during the sentencing process you continued to deny the offending then as well?
INTERPRETER:          No, thereafter I did not deny the offence…
MR BEETHAM:            And as part of that sentencing process you maintained your innocence and denied the offending?
INTERPRETER:           In the beginning, yes, I denied, being to fear for the police [sic]. Then after I accepted the offence.

So having accept - having taken into consideration my acceptance, they found - they sentenced me.
…
MR BEETHAM:            During sentencing, BLBY, the learned trial judge said:
I reject, of course, your account in the pre-sentence report, which is consistent with your evidence that the complaint by this victim was some form of extortion carried out against you.
…
MR BEETHAM:            That version of events that the judge rejected was your case at sentence [sic], wasn't it, BLBY?
INTERPRETER:          Yes. Having rejected my statement, they sentenced me.
MR BEETHAM:            So it was the case that when you were sentenced, at the time of sentence you maintained your innocence and did not accept the offending, isn't that right?
INTERPRETER:          I only asked for the reduction of my (indistinct) but I did not deny … when I was sentenced.
MR BEETHAM:            You appreciate, BLBY, that's contrary to the sentencing judge's remarks?
INTERPRETER:          I accepted that (indistinct words). I did not argue that I was correct.
(Emphasis added).
The Applicant’s wife
The Applicant’s wife TJ adopted her undated statement[84] and her statement dated 12 April 2019.[85] At hearing, TJ gave the following evidence:
[84]R1, G29 p 116 duplicated at G53, p 190.
[85]R1, G29 p 117 duplicated at R1, G67, p 226.
(a)Prior to the Applicant going to prison, he supported the family and spent a lot of with them taking them on outings and holidays.[86]
[86]Transcript p 65 [10]-[30]; R1, G29, p 116.
(b)After “the incident” their family has been severely disrupted[87] and their life has been “turned upside down.”[88]
[87]R1, G29 p 116.
[88]R1, G29 p 117.
(c)She has spoken to the Applicant about “the incident” and “he is extremely remorseful”[89] for “the mistake he has made.”[90]
[89]R1, G29 p 116.
[90]R1, G29 p 117.
(d)The Applicant knows their children’s needs very well and she cannot fill the gap created by his absence.[91]
[91]Transcript, p 66 [10]; p 70 [40]; R1, G29, p 117.
(e)As to the great distress she and her children have been living in since the Applicant has been away from them:[92]
[92]See R1, G29, p 117 and transcript, p70 [15], [30], [40].
INTERPRETER:          Yes, my children experienced shock and my last son used to sleep with his dad, my husband. So he sometimes get up from the bed and asks for my husband, asks for his dad. So I have no answer. I also don't sleep. I get up and I cry. My daughter also can't sleep. So I didn't have any answer to provide them when they were asking from that, or when they get up from the bed.
…
INTERPRETER:          My daughter could not concentrate on study. Education was badly affected. She could not do her NAPLAN. My son also could not study. She doesn't have much friend [sic]…She doesn't engage in games…
…
INTERPRETER:          When children were suffering, I could not help. I could not fill up the gap created by my husband. After time I was unable to do by myself, being alone. I could not do all what my husband had done for my children. I was not well at the time. The daughter was a little bit scared to approach me at that time. Only the last son was moving with me.
(f)If her husband were to remain in detention, she and their children can speak to him on the phone any time they like[93] and they can and do visit him there.[94]
[93]Transcript, p 71 [40]-[45] and p 72 [5].
[94]Transcript, p 72 [15]-[20].
(g)Speaking to the Applicant on the telephone at the detention centre is different to speaking to him face to face at home in that:[95]
[95]Transcript, p 73 [40]-[45], p 74 [5], [15] and p 75 [30].
My husband, if he was by the side of us, he would be able to watch the activities of our children and he can interest them and in addition to that he can understand my feeling, I can understand his feeling.
…
[The children] used to ask from me, 'Will my beloved dad come and watch our activities and clap his hand like other fathers watching their children?' Even when they are facing difficulties, he's the only person who has been providing me support.
…
I want to emphasise the fact that in order to provide strength to me and my children my husband should be with us, by the side of us. When you asked me about the difference in between talking to my husband when he is detained in the prison, detention centre, and when he is by the side of us, I can tell you the difference: he is the strength. Without him, we don't have any strength, me and my children.
(h)If the Applicant was returned to Sri Lanka:[96]
…we also would join him. We don't want to live here without him. We want to live together as a family. So if he is sent to Sri Lanka, we also will travel with him, we will go back to Sri Lanka. Without him, no life, no future for us and our children.
[96]Transcript, p 72 [25]. See also Transcript, p 74 [30]-[35] and p 75 [10].
DISCRETION TO REFUSE TO GRANT THE VISA

Having determined the Applicant does not pass the “character test,” the Tribunal must determine whether the discretion should be exercised to revoke the Cancellation Decision.
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
As the Applicant does not pass the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction No 90, there is another reason why the Cancellation Decision should be revoked.[97]
[97]Pursuant to s 501CA(4)(b)(ii) of the Migration Act.
The Applicant contends that all the relevant considerations weigh in favour of revocation to some extent,[98] as follows:
[98]Other than the family violence and impact on victims considerations, which do not arise in this matter.
(a)The considerations that are of “most weight”[99] are:
[99]The Tribunal takes this to mean that the Applicant considers these three considerations weigh the most strongly in favour of revocation. See also transcript, p 80 [10], where the Applicant refers to these considerations as the “highest points” of his claim for revocation.
(i)The best interests of minor children in Australia[100],
[100]Similarly, the Applicant contends in his written submissions that this consideration weighs substantially in favour of revocation: A1 [21].
(ii)That he is owed international non-refoulement obligations;[101] and
(iii)The strength, nature and duration of his ties to Australia,[102] and
(b)Additionally, in his written submissions, that:
(i)The protection of the Australian community consideration weighs heavily in favour of revocation;[103] and
(ii)The extent of impediments if removed consideration weigh substantially in favour of revocation;[104]
(iii)The Applicant’s links to the Australian community weigh considerably in favour of revocation;[105]
(iv)The expectations of the Australian community weigh in favour of revocation,[106] and
(v)The Tribunal should have substantial regard to the Applicant’s loss of liberty, and its effects, in the context of the prospect of indefinite detention.[107]
[101]The Applicant’s submission that he is owed non-refoulement obligations was raised for the first time orally at hearing. It does not appear in the Applicant’s written submissions (A1). This is discussed further below at [181]–[187].
[102]Transcript, p 10 [20]-[25] and p 11 [35].
[103]A1 [16].
[104]A1 [31].
[105]A1 [34].
[106]A1 [25]
[107]A1 [44].
The Respondent is of the view, however, that:
(a)The primary considerations of the protection of the Australian community[108] and the expectations of the Australian community[109] ought to weigh heavily against revocation;
(b)The best interests of minor children consideration[110] and the prospect of indefinite detention[111] weigh in favour of revocation;
(c)The Applicant’s links to the Australian community consideration weighs moderately in favour of revocation;[112]
(d)The extent of impediments if removed consideration, at best, weighs slightly in favour of revocation and really, is a neutral consideration when considered broadly against all of the material;[113] and
(e)The family violence and business interest considerations are neutral as they do not arise.[114]
First primary consideration: Protection of the Australian community (paragraph 8.1 of Direction No. 90)
[108]R1 [22]; transcript p 12 [15].
[109]R1 [30]; transcript p 12 [15].
[110]R1 [27]; transcript p 12 [20].
[111]Transcript, p 12 [30]. See also R3 [55], which is addressed at [186] below.
[112]Transcript, p 12 [25]; R1 [48].
[113]Transcript, p 12 [35]. See also R1 [43] in this regard.
[114]R1 [23]; [51].
Paragraph 8.1(1) of Direction No. 90 provides that:
(1) When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or 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.
Paragraph 8.1(2) of Direction No. 90 then provides:
(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.
Nature and seriousness of the conduct (para 8.1.1 of Direction No. 90)
Paragraph 8.1.1(1) of Direction No. 90 provides:[115]
[115]See also Direction No. 90 para 8.1(2)(a).
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)     crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)     acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)     crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)     any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)    where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
(Emphasis added).
In determining whether the Applicant’s conduct should be viewed as serious, the Tribunal notes the facts and circumstances of the Applicant’s offending and the conviction imposed.
The Applicant’s offending conduct is briefly detailed above.[116] The facts of the Applicant’s offending are set out in the sentencing remarks of Troy DCJ on 2 December 2016 as follows:[117]
[116]See [8]-[10] above.
[117]R1, G7, pp 46-50.
…
In August of last year you lived in [suburb] with your wife and children. The victim in this case is a young girl, [name], She was born on [date] and at the time of your offending was aged 13.
She lived with her mother and her five siblings in the nearby suburb of [name] and your family and her family became known to each other through the Sri Lankan community in Perth.
In August of last year your wife offered to teach [victim] and her younger sister [name], traditional Sri Lankan dancing and early in that month the children’s mother drove her two daughters [names], to your house for your wife to teach them dancing. Nothing untoward happened on that occasion.
There was a second dancing lesson then held for both children on 22 August 2015. On that day, the children’s mother [name], was running somewhat late in dropping her daughters off and didn’t get to your house until 6.30pm in the evening.
[The victim’s mother] spoke with you and I find that you offered to give the girls a lift home after the dancing lesson ended and she agreed. And so it was that after the girls finished their dancing lesson, you got the two girls in your car and drove them home. [The victim] was seated in the front passenger seat and therefore seated next to you. [The victim’s sister] was in the back. During the journey home, [the victim] started to bite her nails, which was apparently a habit that she had.
You grabbed her hand and told her to stop, but you then moved your hand down her body into her underpants and inserted a finger or fingers into her vagina. [The victim’s sister] who was seated, as I say, in the rear of the car noticed your arm or elbow reaching across in the direction of her sister. Once you removed your hand, you then stopped at petrol station briefly and then continued the drive home.
You were aged 33 when you offended this way and so there is a substantial disparity of age between you and your victim. I accept that the offence was momentary and opportunistic and that there was no demonstrable grooming prior to 22 August 2015. I am satisfied, however, beyond reasonable doubt that you developed a sexual interest in [the victim] in the time that she was at your home on those two occasions.
And I am satisfied beyond reasonable doubt that when you offered the girls a lift, you did so because you wanted to be in a position where you potentially indulge that sexual interest in [the victim] by offending against her. Accordingly, I do not find that your actions were spontaneous. There is no actual threatened violence or added perversion in what you did, but there is an abuse of trust and a wide age disparity.
…
And she was plainly vulnerable in that she was strapped into a car that was moving with no other adults in the car, other than you, and any aggravating and mitigating factors.
…
You took advantage of your acquaintance with [the victim’s] mother which gave you access to your victim and allowed you the opportunity to offend against her.
…
I reject, of course, your account in the pre-sentence report which is consistent with your evidence that the complaint by this victim was some form of extortion carried out against you. No remorse has been expressed by you, none can be inferred.
…
(Emphasis added).
The Applicant contended as follows in relation to the nature and seriousness of his offending conduct:
(a)His offending conduct is very serious, in accordance with paragraph 8.1.1(1)(a) of Direction No. 90.[118]
(b)The sentencing Judge noted there was an absence of physical coercion or violence.[119] Accordingly, it is open to consider the sentence imposed[120], being an 18-month term of imprisonment with eligibility for parole.[121]
(c)While an immediate term of imprisonment was warranted due to the gravity of the offending, the sentence imposed,[122] and the allowances for backdating and parole indicate the Court took into account the Applicant’s otherwise good character and his prospects for rehabilitation and re-entering the community following his sentence.[123]
(d)The offending was a one-off offence, it did not escalate and there was an absence of aggravating factors.[124]
(e)He did not provide false or misleading information to the Department regarding his offending and he has not reoffended.[125]
[118]A1 [7(a)]; Transcript, p 84 [45].
[119]R1, G7, p 49. However, Troy DCJ goes on to state that the absence of an aggravating factor does not automatically equate to mitigation.
[120]See para 8.1.1(1)(c) of Direction No. 90.
[121]A1 [7(b)].
[122]In this context, the Applicant noted that the maximum penalty for his offending is 14 years imprisonment (A1 [7(b)]).
[123]A1 [7(b)]. On the Tribunal’s interpretation, there is nothing in the sentencing remarks referring to or otherwise indicative of this, or anything like this. Rather, Troy DCJ’s consideration of all the relevant sentencing factors was, as he stated, geared toward answering the question of whether the Applicant’s case required the imposition of an immediate term of imprisonment. See R1, G6, p 50.
[124]A1 [7(c)].
[125]A1 [7(d)], [7,(e)]. See para 8.1.1(1)(e) and 8.1.1(1)(f) of Direction No. 90. While it is true the Applicant has not reoffended, one explanation for this is that he had been in custody or detained in immigration detention since November 2016.
The Respondent contended as follows in relation to the nature and seriousness of his offending conduct:
(a)The Applicant’s conviction relates to a serious sexual offence against a child and accordingly must be viewed very seriously.[126]
(b)The victim of the Applicant’s offending was a child and therefore a vulnerable member of the community and as such is very serious.[127]
(c)The particular circumstances of the offence were very serious,[128] and must be considered to be so regardless of the sentence imposed.[129] Nevertheless, the imposition of an immediate term of imprisonment in relation to the Applicant’s offending, being the last resort in the sentencing hierarchy, is probative of the seriousness of that offending particularly noting the remarks of the sentencing Judge.[130]
(d)Although the sentencing Judge concluded that digital penetration is ‘generally speaking’ regarded as less serious than penile penetration,[131] this statement does not reflect the law in Western Australia.[132]
(e)The underlying sentence imposed on the Applicant, being 18 months immediate imprisonment, reflects the objective seriousness of the offence.[133]
[126]R1 [21(a)(i)]; See para 8.1.1(1)(a) of Direction No. 90.
[127]R1 [21(a)(i)]l See para 8.1.1(1)(b)(ii) of Direction No. 90.
[128]R1 [21(a)(ii)].
[129]R1 [21(a)(iii)].
[130]R1 [21(a)(iii)]. See G8, extracted at [59] above.
[131]See R1, G8, p 48.
[132]R1 [21(a)(v)]. The Respondent drew the Tribunal’s attention to Musgrave v The State of Western Australia [2021] WASCA 67 at [5], where Quinlan CJ observed that the proposition that penile penetration is inherently more serious than digital penetration is ‘not only wrong, as a matter of law. It is incoherent.’ See also Pritchard JA at [281] and [283]. This was applied more recently in LTT v State of Western Australia [2022] WASCA 31 at [60], where Buss P, Mazza and Beech JJA determined that the seriousness of every offence of unlawful sexual penetration must be determined by its own individual circumstances.
[133]R1 [21(a)(v)]. See para 8.1.1(1)(c) of Direction No. 90.
The Respondent submitted that therefore, the nature and seriousness of the Applicant’s offending weighs heavily against revocation.[134]
[134]R1 [21]; Transcript p 12 [15].
The first primary consideration, Protection of the Australian community from criminal or other serious conduct,[135] requires the decision-maker to look at “the non-citizen’s criminal or other conduct to date” (emphasis added). [136] For completeness, the Tribunal notes there is no “other conduct” to date that falls for consideration in this matter.
[135]Para 8(1) of Direction No. 90.
[136]Direction No. 90, para 8.1.1(1).
In assessing the Applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction No. 90:
(a)Paragraph 8.1.1(1)(a) – the parties agree and the Tribunal finds that the type of crime committed by the Applicant is to be viewed seriously.[137]
[137]See para 8.1.1(1)(a)(i) of Direction No. 90.
However, in the Applicant’s case, the Tribunal is hesitant to fully recognise his acceptance of his conduct as “very serious”[138] as anything more than a formality in circumstances where, even at hearing, he refers to his offending conduct as a “mistake,”[139] an “oversight”[140] an “accident,” a “silly error” and a “moment of weakness.”[141]
[138]See [60(a)] above.
[139]Transcript p 23 [15].
[140]Transcript p 37 [40].
[141]Transcript pp 37–38.
The Applicant digitally penetrated the vagina of his victim, a vulnerable member of the community and a child in his care, while she was restrained in the passenger seat of a moving vehicle, while another child was seated in the rear of the car and no adults other than the Applicant were present.
The words used by the Applicant to describe his conduct do not, in the Tribunal’s view, sit comfortably, if at all, with his submission that he recognises that he has committed a very serious offence.[142]
[142]The Tribunal considers this also bears on the question on the likelihood of the Applicant reoffending, which is addressed at [86]–[89] below.
(b)Paragraphs 8.1.1(1)(b) and 8.1.1(1)(c) – The conduct relating to the Applicant’s offence for which he ultimately was sentenced to 18 months imprisonment:
(i)Includes conduct that formed the basis of the finding that the Applicant did not pass the character test;[143] and
(ii)Is, in the Tribunal’s view, probative of the seriousness of that offending conduct.
(c)
Paragraph 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f) and 8.1.1(1)(g) - the Tribunal has considered these sub-paras of Direction No. 90 and finds that the Applicant’s conduct and the present factual matrix does not come within their scope.

No arguments were put by the parties in relation to these matters, other than the Applicant noting that his offending history consists of the “one-off” offence for which he was convicted.[144]
[143]See, for example, [25] above.
[144]See [60(d)] above.
The Applicant has an offending history consisting of a single sexual offence. However, the nature of this offence, irrespective of the fact it constitutes the entirety of the Applicant’s offending history causes the Tribunal considerable concern. This concern is of the nature expressed by Senior Member Nikolic in LDDW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 255 (18 February 2021) at [45]:
Australian society abhors the sexual exploitation of children and insists that criminal sentences are sufficiently strong to protect children, punish offenders, and powerfully denounce such conduct. The legislature, at the state and Commonwealth level, has set relatively high maximum penalties for sexual crimes against children. Community abhorrence of such crimes arises from the inherent vulnerability of children, whose emotional maturity is not fully developed. They are consequently at a disadvantage when confronted with sexual conduct by adults. That disadvantage is undoubtedly amplified when the conduct is from a trusted figure…
(Footnotes omitted).
The Tribunal is also concerned by the degree of intent with which the Applicant acted in committing an offence involving a gross abuse of trust. The Tribunal is of the view the Applicant’s offending was not spontaneous in circumstances where the sentencing Judge was satisfied that he offered the victim a lift home in order to create a setting in in which he could potentially indulge in his sexual interest in that child.

The Applicant has sought to minimise (or even, at times, completely deny)[145] his offending conduct:[146]
(a)To police on his arrest in 2015;
(b)During sentencing in 2016;[147]
(c)To his social worker in 2017;[148] and
(d)At hearing.[149]
[145]See for example, fn 83. Further, under cross-examination at hearing, when taken to documented instances of when he denied his offending, the Applicant said those records were either incorrect, or that he was misunderstood. See [49(o)] and [49(p)] above.
[146]See [64(a)] above.
[147]See R1, G7, p 50.
[148]See [49(k)] above.
[149]Transcript p 37.
The Applicant’s continued minimisation of his offending conduct gives the Tribunal little faith in the Applicant’s submission that he has accepted he committed an offence of a very serious nature and that he is remorseful for doing so.
Further to the Applicant’s claims of remorse, which at the time of sentencing the Judge considered been neither expressed, nor inferred,[150] the only expressed remorse in his written statements consist of statements that he “ totally rejects his previous actions which were so wrong.” [151]
[150]See [59] above.
[151]The Applicant’s statements are at R1, G12 and G66.
While the Tribunal considers the Applicant’s explanation as to why he does not expressly address the offending conduct in conveying his remorse[152] is plausible, it does not take away from the somewhat imprecise language he uses to describe it or the fact the only context in which he specifically accepts his offending conduct is in the context of his submissions to a delegate dealing with the cancellation of the Visa.
[152]See [49(i)] above.
Therefore, while the Tribunal accepts the Applicant’s evidence that he is remorseful for the effect his offending has had on his family and on his life, it remains concerned about whether he is remorseful for the effect the offending had had on the victim, the victim’s sister and their family.
Finally, and for completeness, the overall seriousness of the Applicant’s offending is further indicated by his prison sentence, being the last resort in the sentencing hierarchy.
The Tribunal is satisfied that having regard to the evidence to which the above sub-paras of para 8.1.1 of Direction No. 90 are relevant, the nature and seriousness of the Applicant’s conduct is such that it ought to be viewed very seriously and weighs strongly against revocation.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2 of Direction No. 90)
Paragraph 8.1.2 of Direction No 90 states, in part:[153]
[153]See also Direction No. 90 para 8.1(2)(b).
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view 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 that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen 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 noncitizen 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).
…
(Emphasis added.)
The Tribunal in CZCV and Minister for Home Affairs[154] (CZCV) summarised the task for the Tribunal as follows:
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice (2013) 41 VR 359 , [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration & Border Protection (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration & Border Protection (No 2) [2015] FCA 705 at [42]–[43]):
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.
In BSJ16 v Minister for Immigration & Border Protection [2016] FCA 1181 Moshinsky J stated that, at [68]: “… there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration & Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a “rational and probative basis”.
[154][2019] AATA 91 [56]–[57]. The Tribunal in CZCV and the Courts referred to in the related cited cases were considering visa cancellation in the context of predecessors to Direction No. 90. Given the similarity in wording, the same considerations and principles apply to the present matters. The Tribunal therefore follows the approach in these cases.
Nature of the harm (para 8.1.2(2)(a) of Direction No. 90)
Broadly speaking, the Tribunal is required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct.

This firstly requires a consideration of the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct.[155]
[155]Para 8.1.2(2)(a) of Direction No. 90.
The Applicant made no specific submission on the nature of the harm if he were to engage in further or other serious conduct, other than to acknowledge: the seriousness of his offending, the lack of aggravating features, escalation, or repetition, that substance abuse played no role and that his sentence was not appealed.[156]
[156]
The Respondent is of the view that the nature of the harm in the context of this consideration is sufficiently serious as to be unacceptable.[157] The Respondent noted that the nature of the harm that would be caused if the conduct were repeated may be so serious that even strong countervailing considerations may be insufficient to justify revoking a mandatory cancellation.[158]
[157]R3 [21(b)(i)].
[158]R3 [22], referring to para 5.2(5) of Direction No. 90 (extracted at [40] above).
Should the Applicant commit further sexual offences against children, vulnerable members of the public could suffer physical and psychological harm. The Tribunal also notes that such conduct may cause long term mental health issues and social problems not only for the victim but also their families.
Having reviewed these matters, the Tribunal finds that the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct to be, objectively, high. The nature of the Applicant’s offending, irrespective of the fact that it is sole offence, demonstrates a recklessness toward the well-being of the Australian community that cannot be tolerated or dismissed.
Likelihood of the non-citizen engaging in further criminal or other serious conduct (para 8.1.2(2)(b) of Direction No. 90)
Next, the Tribunal is required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence.[159]
[159]Para 8.1.2(2)(b)(i) of Direction No. 90.
The Applicant made the following submissions regarding the likelihood of him engaging in further or other criminal conduct and the level of risk the Australian community ought to be prepared to accept in this regard:
(a)In assessing the risk, it is an error to merely speculate on conjecture or supposition unsupported by evidence[160] or to conclude that a fact has been proved because it has not been disproved.[161]
[160]A1 [8], citing CKL21 v Minister for Home Affairs [2022] FCA 1019 (CKL21) at [86].
[161]A1 [15], citing CKL21 at [79].
(b)Notwithstanding the absence of a psychological report assessing the Applicant’s prospects of rehabilitation and risk of reoffending, there is sufficient evidence to demonstrate the Applicant’s risk of committing further criminal or other serious conduct is low,[162] namely Ms Chapman’s report[163] and Ms Blackburn’s letter of support. [164] There is also a wide range of facts and circumstances demonstrating the Applicant’s commitment to rehabilitation[165] and that his risk of reoffending is highly unlikely, if not non-existent, being:[166]
[162]A1 [9].
[163]Report dated 30 March 2017 at R1, G10. Ms Chapman is a social worker who is “not trained in forensic interviewing” and hence noted the difficulties in her making an accurate assessment on the risk of reoffending (R1, G10, p63 [See note at p8 of report]).
[164]Ms Susan Blackman wrote a brief letter on 8 May 2017 in her capacity as the co-ordinating Chaplain at Acacia Prison (R1, G47). The letter confirmed the Applicant has been attending Christian services at the prison and was known to chaplains as a quiet and polite man.
[165]The Applicant submitted that his prospects of rehabilitation “can be inferred from Ms Chapman” (A1 [16]), however, he does not refer to any particular passage in her report in doing so.
[166]A1 [10].
(i)those matters set out at para [77] above;
(ii)his willingness to engage with a social worker;[167]
(iii)he served his prison sentence[168] and was generally well behaved in prison; and
(iv)he has family and community support and stable house and employment prospects.
(c)While he accepts that the sentencing judge found he showed no remorse:[169]
(i)An “instant display of remorse may be at odds with the defence case theory” and “may be seen as self-serving” for the purpose of obtaining a lesser sentence;[170]
(ii)There is no authority that an applicant must show remorse. Further, the word “remorse” does not appear in Direction No. 90;[171] and
(iii)It is foreseeable that an accused’s person’s attitude to their offending may change over time and may be influenced by the effect their offending had had on their life.[172]
[167]The Applicant further submitted that his ability to engage with mental health professionals was hampered by his going to detention after serving his prison sentence: A1 [10(f)].
[168]At hearing, the Applicant added that the risk to the community was alleviated after a term of imprisonment: Transcript, p 86 [5].
[169]A1 [11].
[170]A1 [12].
[171]A1 [13].
[172]A1 [14]. The Applicant submits this is evident (in his own case, as the Tribunal understands it) in “the various reports and submissions available to the Tribunal”. However, the Applicant does not identify any particular example or examples, or specify whether this is in the context of 1) having previously shown no remorse to now showing remorse and/or 2) whether he is now remorseful to the victim herself, rather than demonstrating remorse only in the context of his wife, family and community ties.
The Applicant submitted that in light of the above matters, the protection of the Australian community consideration weighs heavily in favour of revocation.[173]
[173]A1 [16].
The Respondent contended that the risk to the Australian community, should the Applicant commit further offences or engage in other serious conduct, is more than minimal or remote in light of the following:[174]
[174]R3 [21(b)(ii)].
(a)There is no expert evidence addressing the risk of the Applicant committing further offences (such as psychiatric or psychological reports).[175]
[175]The Applicant conceded this at hearing: Transcript, p 86 [25]. The Respondent noted Ms Chapman was unable to accurately assess the Applicant’s risk of future offending. See fn 163-164 above.
(b)The Applicant has engaged in some counselling sessions addressing sexual offending but has not undertaken any targeted rehabilitation to address a deviant sexual interest in children or programmatic intervention. There is no evidence that these counselling sessions have been successful or reduced the Applicant’s likelihood of future offending.
(c)Although Ms Chapman indicates the Applicant was eager to receive professional intervention upon his release,[176] the Applicant appears to have been concerned with receiving support for his anxiety and his ‘troubled thoughts.’[177]
(d)
The Applicant minimises the seriousness of his offending, referring to it as

“a silly error on his behalf, a moment of weakness.”[178] There is no evidence that the Applicant truly understands or appreciates the seriousness of the impact of his offending on the victim, or the seriousness of the harm that would result if further offending were to occur.
(e)The Applicant has not shown any convincing remorse or contrition for the offending and it remains unclear if the Applicant accepts responsibility for the offending. The Respondent referred to the sentencing judge’s finding that the Applicant expressed no remorse and that none could be inferred (see [59] above), to the Applicant’s apparent display of remorse to Ms Chapman, albeit one that appeared to be more concerned with the impact his punishment has had on him and his family, than any impact on his victim.
(f)Any remorse now expressed should be considered in light of the Applicant’s previous denials of the offending,[179] and the fact that such expressions of remorse are essentially self-serving.
(g)The Applicant displayed a significant lack of victim empathy following his offending, denying the offending and claiming his victim was attempting to ‘extort’ him.[180] There is no evidence to support this claim.
[176]See also A1 [10(e)].
[177]R1, G10, p64. See para 8.1.2(2)(b)(ii) of Direction No. 90, which requires the decision maker, in the context of assessing the likelihood of the non-citizen engaging in further criminal or other serious conduct, to have regard to evidence of rehabilitation achieved at the time of the decision.
[178]See [49(k)] above. At hearing, the Applicant submitted that his use of these terms, rather, acknowledge that “he knows he had done the wrong thing”: Transcript p 86 [30].
[179]See [49(o) and (p)] above.
[180]See [49(q)] and [59].
The Respondent submitted that therefore, the protection of the Australian community consideration weighs heavily against revocation.
The Tribunal has considered the available evidence and the parties’ submissions in relation to the Applicant’s risk of reoffending and makes the following comments and findings:
(a)While the Tribunal accepts the Applicant is remorseful for the effect his offending has had on his own life, on his wife and on his three minor children, it does not accept he is remorseful for the impact his offending has had on the victim, the victim’s sister, or their family.[181] There was no statement to this effect in his written submissions or orally at hearing. It is this insight which the Tribunal considers is lacking that one might view as a protective factor against reoffending.
(b)As noted above,[182] the Applicant’s failure to recognise his conduct as very serious bears on the likelihood of reoffending. This is because, in the Tribunal’s view, the fact that the Tribunal has concerns that the Applicant fails to recognise the seriousness of his offending, it cannot be satisfied that if he were presented with a future opportunity to reoffend, that he would not do so.
(c)The sentencing judge found that the Applicant developed and then indulged a sexual interest in the child victim. The Applicant has undertaken no rehabilitation to address this interest, an interest which the Tribunal considers the Applicant does not accept was as deviant as it was and, in turn, a risk that was not simply alleviated by the fact of his serving his prison sentence,[183] or by his formal acceptance of the seriousness of his offending conduct. As submitted by the Applicant, “there are more serious crimes out there.”[184]
(d)The assessed risk is that provided by Ms Chapman, namely that he is a low risk of reoffending, subject to the involvement of a government department such as the Department of Child Protection “for the safety of his children and others”, following his release from prison.[185]
(e)Ms Chapman acknowledges she is not properly qualified to assess the Applicant’s risk of reoffending and her assessment was largely made on the basis of the Applicant’s self-reporting, that is, where the Applicant controlled the narrative to a certain point.
(f)Further, it is difficult for the Tribunal to accept the Applicant’s willingness to engage with Ms Chapman, or any other social worker, as being indicative of his commitment to rehabilitation in circumstances where the Tribunal is unconvinced of the Applicant’s remorse to his victim or of the seriousness of his offending.
[181]See R1, G10, p66.
[182]See fn 142.
[183]See fn 162.
[184]Transcript, p99 [15].
[185]R1, G10, pp 60, 61, 67.
The Applicant would like the Tribunal to accept that there is a wide range of facts and circumstances demonstrating his commitment to rehabilitation and that his risk of reoffending is highly unlikely, if not non-existent. Simply, the matters raised by the Applicant do not demonstrate this,[186] nor is there any other evidence available to the Tribunal to support this proposition. Further:
(a)The Applicant’s continued denial of his offending and his previous desire to appeal his conviction stand contrary to his formal acknowledgement of the seriousness of his offending.
(b)The lack of aggravating features or escalation is, in the Tribunal’s view, irrelevant to his risk of reoffending.
(c)It does not follow that because the Applicant has sexually offended once, he is unlikely to repeat his offending. Rather, the single instance of sexual offending demonstrates that he developed and indulged his sexual interest in the child victim.
(d)The fact that the Applicant was unaffected by drugs or alcohol suggests his offending occurred in circumstances where his capacity to assess his conduct was unimpaired. This is not to his credit (contrary to the Applicant’s submission).[187]
(e)While the Tribunal accepts the Applicant will have family support and housing if released, and that this is a protective factor against reoffending, his community support and employment prospects are less clear. The Tribunal is not satisfied the facts of his offending are known to his prospective employers or community members and many of the letters of support are now a number of years old. Further, the Tribunal did not hear oral evidence from any of the Applicant’s community contacts or prospective employers and hence did not have the opportunity to hear from them on these matters.
[186]See [82(b)] above.
[187]A1 [10].

At hearing, the Applicant submitted further that the Applicant’s character referees “are aware of his offending and they are still [prepared] to support him and his family.”[293]
[293]Transcript, p 84 [35]-[40].
In relation to para 9.4.1(2)(a)(i) of Direction No. 90, the Applicant also submitted that less weight should not be given to this consideration because his offending commenced soon after his arrival in Australia.[294] The Applicant relied on his offending having consisted of a “single incident” for which he was sentenced and for which there was no appeal by the prosecuting agency or the community.[295]
[294]A1 [39].
[295]A1 [39], [40]. The Tribunal is of the view that there is nothing in the wording in para 9.4.1(2)(a)(i) of Direction No. 90 or otherwise in para 9.4.2.1 that provides for these matters being taken into account.
The Respondent submitted that some weight must be given to the strength, nature and duration of ties consideration in the Applicant’s favour.[296] However, the Respondent also contends that this consideration should not attract significant or overwhelming weight and that it does not outweigh the primary considerations of the protection of the Australian community, and the expectations of the Australian community, which weigh in favour of non-revocation of the Cancellation Decision.[297]
[296]R3 [48].
[297]R3 [50].
The Respondent accepts the Applicant has made a positive contribution to the community, that he was working and paying taxes.[298] The Respondent acknowledged the Applicant’s involvement with his various community groups and that his immediate family and social connections are in Australia.[299] The Respondent also acknowledged the support letters provided from prospective employers and community members if the Applicant is released.[300] However, the Respondent also notes none of those letters acknowledge an understanding of the Applicant’s offending, in particular its nature and contends it is unlikely that the authors of those letters would trivialise the Applicant’s offending (by referring to it as a ‘mistake’ for example) if they were appraised of the circumstances of the Applicant’s offending.[301]
[298]R3 [48].
[299]R3 [48],[49].
[300]R3 [49].
[301]R3 [50].
The Tribunal has considered the evidence and the parties’ related submissions in the context of para 9.4.1(2) of Direction No. 90 and considers it uncontroversial that the Applicant’s ties to Australia, are reasonably strong and have endured over the time he has resided in Australia. The Tribunal also accepts TJ’s evidence regarding the strong familial connection the Applicant shares with her and their children.[302]
[302]Para 9.4.1(2)(b) of Direction No. 90.
As to the Applicant’s community ties, the Tribunal is concerned that none of the Applicant’s offers of employment[303] or letters of support[304] appear to demonstrate that the authors of those letters have an understanding of the Applicant’s offending that would include the specific nature and detail of the offending conduct.
[303]R1, G24, G38, G39.
[304]R1, G21 to G29, G37 to 40, G55, G57 to G60, G70, G85.
Similarly, the Tribunal is also concerned with the way in which the Applicant’s offending is referred to or characterised in those letters, for example the “allegations,” “unpredicted incident” or the “mistake.”[305] These vague statements regarding the Applicant’s offending conduct are concerning because the Tribunal considers they relate to the nature and strength of the Applicant’s ties with the community, given that whether his supporters would continue to support him if they knew the nature and particulars of his offending is unknown. Additionally, where these letters were provided some years ago,[306] there is a live question as to whether those connections have been maintained to the present as the authors were not called to give oral evidence at hearing. As such, the Tribunal treats these letters with caution and considers they necessitate a downward adjustment in the weighting of this consideration.
[305]R1, G21 to G29, G37 to 40, G55, G57 to G60, G70, G85.
[306]R1, G21 to G29, G37 to 40, G55, G57 to G60, G70, G85.
The Tribunal has considered that the Applicant has resided in Australia since 2009, that he arrived as an adult and committed the offence approximately 5 years after he entered the Australian community.[307] The Tribunal has also considered that since the Applicant’s offending, he has spent a significant period of time incarcerated or in immigration detention. The Tribunal is of the view that in these circumstances, this factor should be given less weight.
[307]Para 9.4.1(2)(a) of Direction No. 90.
As to the Applicant’s contention that less weight should not be given to this consideration because his offending commenced soon after his arrival in Australia,[308] this runs contrary to the wording in paragraph 9.4.1(2)(a)(i) of Direction No. 90.
[308]See [168] above.
As such, the Tribunal finds that the strength, nature and duration of the Applicant’s ties consideration weighs moderately in favour of revocation of the Cancellation Decision.
Impact on Australian business interests (para 9.4.2 of Direction No. 90)
Paragraph 9.4.2 of Direction No. 90 states:
(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
In relation to the impact on Australian business interests consideration, the Applicant submitted:[309]
It is conceded that the non-revocation of the Applicant’s visa is unlikely to impact on an Australia business interest, compromise the delivery of a major project or the delivery of an important service in Australia.
[309]A1 [41].
The Respondent submitted that there is no evidence, rather than it being unlikely,[310] that the non-revocation of the Cancellation Decision would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
[310]R4 [16].
The Tribunal is satisfied that this factor is not relevant in the present case and should be given neutral weight.
Prospect of indefinite detention
Generally, under s198 of the Act a legal consequence of a non-revocation decision would be that the Applicant would be liable to be removed from Australia as soon as reasonably practicable[311] and would be liable to be held in immigration detention until that time.
[311]See also [148] above.
As noted above[312], there is not presently any risk that the Applicant will be removed to Sri Lanka, given that the duty to remove under s 198 of the Act is not required or authorised to a country in respect of where there has been a protection finding in a protection visa process in relation to that person, other than in certain limited circumstances.[313] Those circumstances are where:
·     Section 197C(3)(c)(i) - the decision in which the protection finding was made has been quashed or set aside;
·     Section 197C(3)(c)(ii) - a decision has been made under subsection 197D(2) in relation to the non-citizen in complete within the meaning of subsection 197D(6);
·     Section 197C(3)(c)(iii) - the non-citizen has asked the Minister, in writing, to be removed to the country.
[312]See [151].
[313]Section 197C(3) of the Act. The Applicant indicated he does not dispute this approach: A1 [42].
The Applicant submitted that in conjunction with the escalating conditions of Sri Lanka, there is no prospect of the Applicant being returned to Sri Lanka and at present there is no country willing to accept him.[314] The Applicant also submitted that the legal consequences (of a non-revocation decision) are very daunting and the impact of the children, at their age, ought to attract much weight in favour of revocation.[315]
[314]A1 [43].
[315]A1 [43].
The Respondent submitted that:[316]
(a)Section 197C(3) of the Act applies to the Applicant in respect of Sri Lanka in the circumstances of the particular findings made in the course of determining his Protection visa application in 2010, and in the absence of any of the circumstances listed in section 197C(3)(c) of the Act being enlivened.
(b)Accordingly, removal under section 198 of the Act to Sri Lanka is neither required nor authorised, unless and until the Applicant requests in writing to be removed[317] or the Minister determines under section 197D(2) of the Act that the Applicant is no longer a person in respect of whom any protection finding would be made, and that decision is complete within the meaning of subsection 197D(6) of the Act.[318]
[316]R3 [53], [54].
[317]Section 197C(3)(c)(iii) of the Act.
[318]Section 197D(3)(c)(ii) of the Act.
The Tribunal accepts the Minister’s submission, and in turn, accepts that a legal consequence of a decision not to revoke the cancellation of the Applicant’s visa is that the Applicant is required to be detained until and unless one of the following applies:
(a)He can be removed to a country other than Sri Lanka;
(b)One of the exceptions under s 197C(3)(c) of the Act is engaged; or
(c)The Respondent intervenes to grant the applicant a visa under s 195A or to make a residence determination under s 197AB.
As noted by the Respondent,[319] this period of detention would have no chronologically-fixed endpoint such that it might be described as ‘indefinite’ and the duration of detention could be prolonged. Nevertheless, the parties agree with the Tribunal[320] that indefinite or prolonged detention is a consequence of a valid exercise of power for the purpose of removing a non-citizen from Australia, is not punitive and does not amount to any form of 'extra' or 'additional' punishment.
[319]R3 [55].
[320]A1 [44]; R3 [55].
Having regard to the Applicant’s loss of liberty in circumstances if the decision to cancel his visa is not revoked, the Tribunal accepts that the prospect of indefinite detention consideration weighs in favour of revocation. The Tribunal will consider the weight to be given to this consideration as part of the weighing exercise below.
CONCLUSION - THE WEIGHING EXERCISE
As to how to apply the primary and other considerations in Direction No. 90, the Tribunal in guided by Deputy President Boyle in Wightman:
Direction 90 guides the decision maker on how to apply the primary and other considerations. Paragraph 7 of Direction 90 sets out the way in which the relevant considerations are to be taken into account (see [31] above). It provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65 and Direction 79, the same considerations apply to the exercise required by Direction 90 which is materially in the same terms. The Tribunal is guided by Colvin J’s judgment in Suleiman v Minister for Immigration & Border Protection and the Full Court of the Federal Court decision in Minister for Home Affairs v HSKJ.
The Tribunal in CZCV at [164] summarised the legal position following the various cases referred to above as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so. …
(Emphasis added, footnotes omitted).
The Tribunal follows the approach directed by the above cases. The Tribunal also takes guidance from the principles set out in paragraph 5 of Direction No. 90, in particular paragraph 5.2(5) of Direction No. 90,[321] which in turn refers to paragraph 8.4(2) of Direction No. 90.[322]
[321]See [40] above.
[322]See [105] above.
The Applicant submitted that, overall, the considerations in Direction No. 90 either weigh in his favour or are neutral, such that there is another reason why the Cancellation decision should be revoked.
The Respondent submitted that, overall, the primary considerations of the protection of the Australian community, Australia’s serious concerns about sexual offences against children, and the expectations of the Australian community weigh heavily in favour of not revoking the Cancellation Decision, and should attract significant weight.[323] Further, the Respondent submitted that the primary consideration of the best interests of the child and the other considerations of the strength, nature and duration of ties, and the extent of impediments if removed, should not attract substantial or overwhelming weight in favour of revoking the Cancellation Decision, and do not outweigh the primary considerations favouring non-revocation.[324] Hence, in the Respondent’s submission, there is not another reason the Cancellation Decision should be revoked.[325]
[323]R3 [57(a)]; [54] above.
[324]R3 [57(b)]; [54] above.
[325]R3 [58].
As to the first primary consideration, the protection of the Australian community (para 8.1 of Direction No. 90), the relevant consideration is whether the risk is an unacceptable one, taking into account the nature and seriousness of the harm that would be caused if there was a repeat of the offences or other serious conduct and the likelihood of that occurring. For the reasons set out in paras [55]-[90] above, the Tribunal has found that given:
(a)the nature and seriousness of the Applicant’s conduct to date is “very serious” (paras 8.1(2)(a) and 8.1.1 of Direction No. 90); and
(b)the “unacceptably serious” nature of the harm and the low, yet unacceptable risk to the Australian community, should the Applicant commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No. 90),
the primary consideration of the protection of the Australian community weighs strongly against revocation of the Cancellation Decision.
Looking at the second primary consideration (para 8.2 of Direction No. 90), family violence is not applicable to this application and therefore carries neutral weight.
With respect to the third primary consideration, the best interests of minor children in Australia (para 8.3 of Direction No. 90), the Tribunal has found that for the reasons set out in paras [95]-[105] above, the best interests of the Applicant’s minor children weigh moderately in favour of revocation of the Cancellation Decision.
The fourth primary consideration, the expectations of the Australian community (para 8.4 of Direction No. 90), as it must and as is the “norm,” weighs strongly against revocation of the Cancellation Decision. For the reasons set out at paras [106]-[124] above, significant weight should be given to this primary consideration.
In relation to the “other considerations” identified in para 9 of Direction No. 90:
(c)The Tribunal is not satisfied that the Applicant’s current evidence enlivens Australia’s non-refoulement obligations, therefore considers this consideration carries neutral weight (para 9.1 of Direction No. 90).
(d)The extent of impediments if the Applicant were removed from Australia is a neutral consideration (see paras [154]–[161] above) (para 9.2 of Direction No. 90).
(e)The impact on victims consideration does not arise and is therefore neutral (para 9.3 of Direction No. 90).
(f)The Applicant’s links to the Australian community (para 9.4 of Direction No. 90); being:
(i)the strength, nature and duration of the Applicant’s ties (para 9.4.1 of Direction No. 90) weigh moderately in favour of revocation of the Cancellation Decision (see paras [165]–[176]); and
(ii) the impact on Australian business interests (para 9.4.2 of Direction No. 90), which has no relevance to the present matter and hence is a neutral consideration;
indicate that this consideration overall weighs moderately in favour of revocation of the Cancellation Decision.
The Applicant’s prospect of indefinite detention weighs in favour of revocation.
Having weighed the considerations in favour of revocation of the Cancellation Decision and the considerations against revocation of the Cancellation Decision, the Tribunal finds that the number of considerations weighing in favour of revocation are, prima facie, greater than those weighing against revocation.
There is factual material, which is moderately in the Applicant’s favour, in relation to the best interests of his minor children and the Applicant’s links to the Australian community.
There is also material regarding the Applicant’s prospects of indefinite detention that the Tribunal considers weighs in favour of revocation.
Despite the considerations weighing in the Applicant’s favour, the Tribunal is nonetheless of the exceptionally strong view that, due to:
(a)the unacceptable risk of harm to the Australian community; and
(b)the seriousness of the Tribunal’s concerns regarding there being any risk at all of the Applicant reoffending in a similar way,
the protection of the Australian community from future harm (from either the Applicant’s future offending, or any other serious conduct) is a primary consideration which, in addition to the expectations of the Australian community consideration, outweighs any and all considerations weighing in the Applicant’s favour.
Therefore, the Tribunal finds there is not another reason why the Cancellation Decision should be revoked.
DECISION
The Reviewable Decision, being the decision of the Delegate dated 21 April 2022, not to revoke the mandatory cancellation of the Applicant’s Protection (Class XA) (subclass 866) (Permanent) visa pursuant to s501CA(4) of the Migration Act 1958 (Cth) is affirmed.

I certify that the preceding 203 (two-hundred and three) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher

.............[Sgd]........................................................
Associate
Dated: 15 July 2022

Date of hearing: 21 June 2022

Solicitors for the Applicant: Mr S Raveendran, Ravi James Lawyers

Counsel for the Applicant: Mr C Oldham, Douglas Menzies Chambers

Solicitors for the Respondent: Mr A Shinnick, Minter Ellison

Counsel for the Respondent: Mr C Beetham, Francis Burt Chambers

The Tribunal notes that the Applicant made representations in accordance with the invitation to do so.

See s 501CA(4)(a) of the Migration Act and [12] above.

A1 [10(a),(b),(c),(d) and (j)]. At hearing, the Applicant added that a prosecuting agency would have appealed the Applicant’s sentence “if it were deemed that the public wasn’t being protected” (Transcript

p 85 [5]).

Border Protection (2019) 164 ALD 139, [32]-[36], [39], [82]; GBV18 v Minister for Home Affairs [2020] FCAFC 17 at [31(f)]; [32(e)].

Court	Court Date	Offence	Court Result
Perth District Court of Western Australia	02 Dec 2016	Sexually penetrated a child over 13 and under 16	Imprisonment: 18 Months concurrent from 22.11.16

Date of hearing:	21 June 2022
Solicitors for the Applicant:	Mr S Raveendran, Ravi James Lawyers
Counsel for the Applicant:	Mr C Oldham, Douglas Menzies Chambers
Solicitors for the Respondent:	Mr A Shinnick, Minter Ellison
Counsel for the Respondent:	Mr C Beetham, Francis Burt Chambers