BMVM and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2022] AATA 4374

BMVM and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4374 (18 November 2022)

Division:GENERAL DIVISION

File Number(s):      2022/7089

Re:BMVM

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Dr N A Manetta

Date:18 November 2022

Date of written reasons:        16 December 2022

Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the applicant’s visa be revoked.

...................[SGND].....................................................

Senior Member Dr N A Manetta

Catchwords

MIGRATION – mandatory cancellation of applicant’s visa – serious offending involving children – infrequent offending history – substantial risk of reoffending – whether “another reason” for revocation of cancellation decision – Direction 90 – applicant has below-average cognitive functioning – applicant more likely to receive rehabilitation treatment in Australia – family supports in Australia – decision set aside

Legislation

Migration Act 1958 (Cth)

Cases

Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286

Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119

Secondary Materials

Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member Dr N A Manetta

16 December 2022

1. After I delivered my decision with oral reasons, I received a request for written reasons, which I now publish.   These are the reasons I read out to the parties, with minor amendments. 

2. This is an application by “BMVM”, a citizen of New Zealand whose name is subject to a confidentiality order and to whom I shall refer in these reasons as “the applicant”. The applicant seeks a review of a decision of the respondent’s delegate dated 26 August 2022. By this decision the delegate confirmed an earlier decision that had been taken under section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) to cancel the applicant’s visa.[1] The visa was cancelled after the applicant had been sentenced to a term of imprisonment exceeding 12 months, part of which he was required to serve on a full-time basis in jail.  I shall describe the offending in due course.

   [1] A Class TY Subclass 444 Special Category (Temporary) visa.

3. The applicant made a timely request seeking an internal review of the cancellation decision. The delegate who was responsible for the internal review was required to address two questions under section 501CA(4)(b) of the Act; namely, whether the applicant satisfied the so-called “character test” in s 501(6), and, if not, whether there was “another reason” for the cancellation decision to be revoked. The delegate first decided that the applicant did not pass the character test given the lengthy term of imprisonment he had received. In addressing the second question, the delegate was bound to apply Direction no. 90, issued under section 499 of the Act.[2] The delegate decided that a weighing of the considerations under the Direction did not lead him or her to favour a revocation of the cancellation decision. There was, accordingly, no other reason to revoke the cancellation decision under section 501CA(4)(b)(ii), and the visa remained cancelled.

   [2] Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.

   TRIBUNAL’S TASK

4. The Tribunal’s task is to address the same two questions. In matters like this, the Tribunal conducts a hearing on the merits, reaching the correct or preferable decision on the evidence before it.[3] It hears oral evidence and submissions, receives written documents and written submissions, makes findings of fact, and draws its own conclusions. The Tribunal does not merely review the delegate’s decision for error. This manner of proceeding implies that I may affirm the decision under review notwithstanding the presence of an error in the delegate’s reasons if that is the correct or preferable decision on the evidence before me.  Equally, I may set aside the decision under review notwithstanding the absence of any discernible error in the delegate’s reasons if that is the correct or preferable decision on the evidence.   At the hearing before me, Mr Chand appeared for the applicant; Mr Duldig, for the respondent.  I acknowledge Mr Duldig’s measured and helpful advocacy which reflected appropriately the respondent’s obligations as a model litigant.

   [3] See, for example, Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 at [98] and [141].

   STATEMENT OF CONCLUSION

5. I have decided to set aside the decision under review and to substitute a decision that the cancellation of the applicant’s visa be revoked. I now turn to set out the background facts and my reasons. 

   BACKGROUND FACTS

6. The applicant is now 50 years of age.  He has been living here for the last 24 years, having first arrived in 1998 in his mid-twenties.  He was born in the Cook Islands. I might first mention an event from the applicant’s early life there.  The applicant indicated that he was kicked in the head as a child when living in the Cook Islands. He said that there was often inter-village strife. During one such conflict he was kicked in the head by an assailant with steel-capped boots. He indicated that from that time on his scholastic ability declined markedly. This seems to be supported in the expert report prepared by the psychologist that was before me in evidence[4] where it is noted that the applicant had indicated he had repeated Year 8 four times. 

   [4] Exhibit A1, at [17].

7. Whatever the exact cause, it is a fact that the applicant presented before me as a person of apparently more limited cognitive ability.  His lack of spontaneity in response‒ indeed his lack of comprehension on some occasions‒ was quite marked, even allowing for the fact that he was under stress and giving evidence over an internet connection from a place of detention.  I am satisfied that he was not feigning poor comprehension.

8. The applicant moved from the Cook Islands to New Zealand at some point: I note one set of sentencing remarks refers to the year as 1995.  His mother still lives in New Zealand with his sister. His mother is now aged 70, and his father died some 20 years ago.

9. The applicant came to Australia, as I have said, in 1998. He had a partner here but separated from her in 2006. They had five children together.  The applicant has a limited work history in Australia to the time of his separation from his wife; but from 2006 onwards the applicant has had no work.  It would appear he became a full-time carer of his five children when the relationship with his wife ended. 

10. I understand he cared for the children, or at least contributed to their welfare, until his incarceration for his first offence, when he lost the right to see his children until they turned 18.  All the applicant’s children are now adults with the exception of the youngest who was just one week short of his majority as at the date of my oral decision.

11. The applicant’s criminal record was before me:  see Exhibit R1, pp 28-29.  The first offence concerns an indecent treatment of a child under 16 on 22 May 2011.  I note that I accept and rely on the transcript of the sentencing remarks: see Exhibit R1, pp 34-37.  The applicant’s daughter had had a friend over to stay in her home. The daughter’s friend was 12 years old. She was awakened by the applicant when he pulled down her pyjama shorts and underwear. He licked her buttocks and touched her in the upper thigh area and on the outside of her vagina according to the sentencing Court.  The applicant was convicted and sentenced in respect of two charges of indecent treatment of a child in his care.  Two concurrent sentences of 14 months each were imposed. 

12. On 10 August 2018, the applicant was found guilty of several charges of failing to comply with a reporting obligation (applicable to him as a child-sex offender).  On all charges a conviction was recorded and 80 hours’ community service was ordered to be completed within nine months.

13. In 2019, the applicant committed two offences of indecent treatment of a child under 16 as well as a third offence of attempting to treat the same child indecently.  The offences are marked “domestic violence” in the record; but the victim was not a blood relative of the applicant.   Again, a transcript of the sentencing remarks were before me and I accept them: Exhibit R1, pp 30-33. A girl, whose age has been redacted from the transcript, was staying in the applicant’s home.  She was visiting others of her own age and was sitting on a couch covered with a blanket. The applicant approached her, put his hand under the blanket and under her shirt and bra, and touched her left breast, skin on skin. He moved away when an adult entered. When he was alone again with the girl, he put his hand on the outside of her shorts over her vagina.  Again, he moved away when adults entered the room. When they had gone, the applicant tried to put his hand inside the victim’s shorts. She stood up to get away from him and he told her not to tell anyone. These three events led to the two charges of indecent treatment and a further charge of attempted indecent treatment.

14. The sentencing Court records (Exhibit R1, at p 31) that the applicant knew he had done something wrong. When police contacted him, he told his daughter that he was “in trouble now”. The applicant was sentenced in respect of the two completed offences to two years’ imprisonment and in respect of the attempted offence to 18 months’ imprisonment.  The Court noted specifically that there was some degree of persistence in the behaviour and some escalation as well in that the applicant had moved from the victim’s breast to her vagina, and then he finally attempted to touch her vagina from inside her shorts.  The applicant was required to serve ten months in jail with the balance suspended for three years.

15. I note that the Court refers to the fact that the entirety of the 14-month sentence imposed in respect of the 2011 offending had been served by the applicant. Appropriate sex-education courses were not completed on that occasion. The Court refers to a submission by counsel that the applicant either did not understand the need for the courses or was incapable of completing them.  The Court further noted that it was important for the applicant to complete such courses.  The Court emphasised to the applicant that he had a problem and he needed to undertake courses: see Exhibit R1, p 32.  I accept those observations.

16. On both occasions, the Court adverted to the distress and psychological harm that had been caused to the victims.  The Court noted on the second occasion that the applicant was a significant risk to others: see Exhibit R1, p 32.

17. The sentencing took place on 30 April 2021 and the applicant’s visa was mandatorily cancelled on 17 June 2021.

18. By way of further background, I note that the applicant was served with certain notices while he was in jail after his earlier offending in 2011. The first notice indicated to the applicant that consideration was being given to cancelling his visa under the discretionary power to do so in section 501(2) of the Act. The applicant was invited to make submissions. It is not clear to me whether any submissions were in fact made by the applicant on that occasion. He was in jail when he received the notice. The applicant received a further notice on 5 July 2013 advising him that a decision had been taken not to cancel his visa, but also warning him that further offending might lead to a cancellation of his visa. The letter specifically cautioned him, in boldface type, that a disregarding of the warning would weigh heavily against him in the future. He signed an acknowledgment of receipt of the notice: see Exhibit R2 (Attachment F).

19. I doubt on the evidence before me that the applicant, given his lower cognitive ability and the effluxion of time, would have had any conscious memory of these documents when he reoffended in 2019, some six years later.

    REASONS

20. With that background in mind, I now turn to address for myself the two questions the delegate answered.  First, there is no doubt that the applicant does not pass the character test.  He fails that test because of his most recent jail sentence, which exceeded 12 months: see section 501(6)(a) and 7(c).  

21. The second question involves the application of Direction no. 90, to which I now turn. In this regard, I frequently quote certain earlier prefatory remarks I made in the matter of Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

    (Migration) [2021] AATA 2119 at [32]ff. I do so again here:-

    32. I first make some prefatory remarks about Direction 90. It is clear that the Direction is framed against the stated objective of the Act which is to regulate in the national interest the coming into and presence in Australia of noncitizens: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(3) to consider the specific circumstances of the case in deciding whether to exercise the discretion to revoke the cancellation decision. The explicit purpose of the Direction is to guide decision-makers in performing their discretionary functions under the Act: see paragraph 5.1(4).

    33.  I have considered the principles that appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. These principles are set out against paragraphs numbered (1) to (5). I set out some of the salient features of these principles without setting them out in exhaustive detail.

    34.  First, remaining in Australia is a privilege conferred on noncitizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, noncitizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas where noncitizens have engaged in conduct that raises serious character concerns. This expectation arises regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by noncitizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the noncitizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove insufficient to revoke a mandatory cancellation. In particular, I note that the inherent nature of certain conduct such as family violence or conduct mentioned in paragraph 8.4 (2) is so serious that even strong countervailing considerations may be insufficient in some circumstances to warrant revoking a mandatory cancellation even if the noncitizen does not pose a measurable risk of causing harm to the Australian community.

    35.  I have had regard to these principles and accept them as the framework within which I must approach my task of deciding whether to revoke the mandatory cancellation of Mr Rai’s visa.

    36.  Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that section 7 directs me to give appropriate weight to information and evidence from independent and authoritative sources. Section 7 also directs me to give greater weight “generally” to primary considerations over other considerations.

22. I turn now to apply the Direction. There are four primary considerations that I must consider. The first of the these is the protection of the Australian community. I note and bear in mind what appears in paragraph 8.1(1) without setting it out in these reasons.

23. I must give consideration to the nature and seriousness of the applicant’s conduct to date: (see paragraph 8.1(2)(a)) and to the risk to the Australian community should he commit further offences or engage in other serious conduct (see paragraph 8.1(2)(b)).

24. Paragraph 8.1.1(1) requires me, when considering the nature and seriousness of the applicant’s criminal offending to date, to have regard to a number of matters listed in subparagraphs (a) to (g).  I propose not to deal further with the applicant’s failures to comply with his reporting obligations.  It is a matter to which I am required to have regard under the Direction, but I am of the view that this offence would not tip the balance in my decision-making against the applicant. It is appropriate that I focus my attention on the sexual crimes against the children.

25. The sexual crimes against the children are to be regarded very seriously under subparagraph (a).  I note by way of background that neither victim was a member of the applicant’s family. Although one victim was referred to as a “niece”, this appellation was indicative of a friendly connection between the families and not of any blood relationship. The respondent accepted in its Statement of Facts Issues and Contentions (see Exhibit R2, at [45]) that there was no blood relationship, and I accept that as an appropriate concession on the evidence before me.

26. As I have said, I regard the offending that I have described in some detail above as very serious indeed.  The crimes were clearly sexual in nature.  They involved a child on both occasions, and, therefore, a particularly vulnerable victim. The children were in the applicant’s house where they no doubt thought their safety was certain. The sentences were long, and this is a matter that I am required to consider under subparagraph (c). Each sentencing Court records the victim’s distress and the psychological harm done to her.

27. I must have regard to the frequency of the applicant’s offending and whether there is any trend of increasing seriousness. There have been two occasions now of serious offending. I accept that the offending is separated by some eight years. Nevertheless, I do have regard to the fact that there have been two instances now of this most serious offending. Comparing the two incidents in question, I do not think that there is a trend of increasing seriousness in that the second episode does not appear to be worse than the first in terms of the acts that were performed upon the victims. Nevertheless, the experience of jail and the loss of contact with his own children did not prove to be a sufficient deterrent to the applicant in this case. Accordingly, there is a trend of increasing seriousness in that the second crime was committed after an earlier jail experience and when the applicant would have had at least some appreciation of the potential consequences for him of further offending. I say this bearing in mind what I believe to be the limited intellectual capacity of the applicant. There is a cumulative effect of repeated offending, and I take this into account.

28. Subparagraph (g) requires me to have regard to the written warning the applicant received in 2013. I take this into account. I accept that the applicant did receive notices from the Department after his first offending. He signed an acknowledgment of receipt. Even if I assume, as I am prepared to do, that he understood their contents ‒ at least partially ‒ I do bear in mind that the correspondence dates from the middle of 2013 which is some six years before the second offending. The applicant would not have had in mind, or even at the back of his mind, the contents of the notices when he assaulted his second victim in 2019. Nevertheless, the Government has given him due warning, and that is a matter that I must take into account under the Direction, and I do so.  But this is not a case where it would be right to say that the applicant has taken a calculated risk, so to speak, in respect of his immigration status.  

1. I turn now to consider the risks to the Australian community should the applicant reoffend or engage in other serious conduct.  I note, without setting it out, the principle that appears in subparagraph (1) of paragraph 8.1.2.  It is an important principle because the sexual abuse of minors is undoubtedly a very serious offence and one where the harm to minors, particularly psychological harm, can be very grave indeed.

2. In assessing risk, I must have regard to two matters; first, the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and, secondly, the likelihood of his so doing taking into account the matters that appear in subparagraphs (i) and (ii).

3. I regard any repetition of these sexual assaults as giving rise to the most serious concerns.  The harm to a child on an ongoing psychological basis can be profound, depending on the child and the severity of the abuse. Parents and other family members also suffer when they learn that a child has been assaulted in this way.  It is, self-evidently, a very serious thing to assault a child indecently.  Precisely because the child is not able to rationalise fully the crime that has occurred, there is, in my opinion, a special risk to the ongoing psychological health of that child. I take very seriously harm done to the psychological development of children, who should live their teenage and young-adult years in a degree of security so that their subsequent adult lives are rewarding and unburdened by experiences of this type.

4. So far as the likelihood of the applicant reoffending is concerned, I regard it as a real risk. I say immediately that I did not find the expert report I received of much assistance: see Exhibit A1. It seemed to me to be deficient in a number of respects. 

5. I agree with the conclusion at [24] that the applicant’s estimated level of cognitive functioning was below average and that he had a limited level of insight.  How low his cognitive functioning and insight are may be open to question.  The psychologist, on a mental status examination, did not find evidence of “more significant cognitive impairment”.  But certainly, before me, the applicant presented as a person with a limited intellectual capacity, making allowances for the stress he was experiencing and the circumstances of his detention. 

6. The analysis at paragraphs [28] and [29] of the report is unhelpful in my view.  The author first notes that the applicant did not have any memory of the 2011 offending and that the applicant believed he had not engaged in inappropriate sexual conduct. All the applicant accepted was that if he was found guilty, he must have engaged in the behaviour. That the applicant was unable to remember such a significant life event ought to have caused the author more concern than it apparently did. It may have meant the applicant was lying, in which case that would be a serious issue in respect of any insight he might have developed; or it may have meant that the applicant was unwilling, or unable, to admit to his offending.  That too would impinge on any assessment of insight.  It may also be true, of course, that the applicant had blocked, or lost, the memory of the event. Again, issues arise if that is the case.  But it was wrong of the author to conclude that there was any real insight into this first offending, as the author apparently did. So far as the offending in 2019 is concerned, the applicant indicated to the psychologist that he did not believe his behaviour was of an inappropriate sexual nature. I note that before me the applicant denied that he did what the sentencing Court found he had done.  That is a serious matter.

7. There is, self-evidently, a break in logical reasoning when the next paragraph in the report, [29], is read. This paragraph makes it clear that the author believed the applicant “now appears to demonstrate insight into his past offending behaviour, accepting his behaviour was inappropriate and wrong”.    All in all, I do not place reliance on this part of the report or on the author’s subsequent risk assessment at [32]ff.

8. Whatever its causes, the applicant appears to have very limited insight into his latest offending. I would be speculating if I attempted to isolate why that might be the case.  Denying the offending took place might evidence, for example, an attempt by the applicant to improve his situation by lying; equally, denying the offending may indicate a blocking of a memory now perceived to be unpleasant or shameful, which may itself indicate deeper psychological problems.  As I say, I cannot judge this matter: I would be speculating in the absence of appropriate expert evidence.

9. One can say, however, that there are common elements to the offending; namely, the unnatural sexual interest in a child[5] and the commission of the offence in a home environment. There is no suggestion on the evidence before me that the applicant has sought to satisfy his deviant desires in public places or that there have been other occasions of indecent treatment, or attempted indecent treatment, of children. On the other hand, the offending has been quite bold.  This is particularly true of the second offending where the applicant resumed his indecent treatment of the child even though adults were coming in and out of the room. It was reckless behaviour when one considers his chances of being caught.

   [5] I note that I do not accept the statement appearing at p 8 of the expert report (Ex A1, fn 5 to [30]) that “no prosecution or defence information has been provided upon which any inference can be drawn that [the applicant] has a sexual attraction towards children…”. 

10. This suggests to me that the applicant may well have experienced an impulsive desire to assault a child opportunistically from within his home environment.  This would suggest that the risk of recidivism is serious, at least in the applicant’s home environment.  The applicant’s strict isolation from children will be necessary to safeguard their wellbeing.  

11. I do accept the applicant was under a great deal of stress at the time of the hearing before me. He appreciated quite clearly that he was facing deportation to New Zealand. I believe the reality of his situation had been brought home to him. I also accept that he finds deportation and the prospect of separation from his adult children (including the child about to turn 18) very confronting and that this prospect will operate as something of deterrent in the future if he is allowed to remain in Australia.  But I also believe that it remains a partial deterrent only for the applicant, because of the very limited insight he has into his offending and also because of what I consider to be an impulsive urge to gratify his sexual interest in children: he may well be unable to resist that urge if a further occasion arises. 

12. The applicant proposes to live with one or other of his daughters if he is released. I accept that there will be some degree of supervision in that context and the ability to ensure children are not present on the premises. I accept that family members will provide at least partial vigilance in that regard.  And the applicant’s children do appreciate that he requires therapeutic intervention.  I accept that this therapy is intended to be facilitated by the family.  But that rehabilitation has not taken place to date and it would certainly have to be, in my opinion, a one-on-one tailored program.   It would also have to be quite prolonged, in my opinion, if headway is to be made in addressing the applicant’s deviance.  All in all, therefore, I regard the risk of reoffending, as at the date of my decision, as substantial without being able to quantify it exactly in the absence of a reliable expert opinion.  This conclusion is consistent, I note, with the sentencing Court’s conclusion: see Exhibit R1, at p 32.

13. There is no family-violence consideration to be addressed. I do not believe the consideration of the best interests of minor children in Australia is relevant either. Of the applicant’s children, only one is a minor, and only technically, since he was just one week short of his majority as at the date of my oral decision. I do not attach any weight to his interests as a minor.

14. The consideration involving the expectations of the Australian community in paragraph 8.4 counts substantially against the applicant. I note that the applicant has engaged in serious conduct in breach of the expectation that, as a non-citizen, he should obey Australian law while in Australia. I accept also that “as a norm” ‒ although not as an inflexible rule ‒ the Australian community would expect the Government not to allow the applicant to remain in Australia given his offending.  I note that by virtue of paragraph 8.4(2)(c), the commission of serious crimes against children gives rise to serious character concerns about the applicant’s continued presence in Australia. That is an important matter.  I further note that I am not to assess the community’s expectations in a particular case but to proceed on the basis of the Government’s views as articulated in paragraph 8.4. These expectations apply regardless of whether the applicant poses a measurable risk of causing physical harm to the Australian community.

15. I must take into account other considerations under paragraph 9.  There is a non-exhaustive list of four such considerations. There are no international non-refoulement obligations owed to the applicant. There is no impact on Australian business interests to consider. The impact of my decision on the applicant’s victims is not known to me and so I regard this as a neutral factor in this case.

16. The extent of impediments if removed, and the strength, nature, and duration of the applicant’s ties to Australia may be conveniently considered together, in conjunction with any other factors. The applicant has an elderly mother in New Zealand.  She apparently lives with the applicant’s sister. He would need, in my opinion, to move in with them if he were to cope with life on being removed to New Zealand. The applicant said that his mother is not yet aware of his offending. The applicant indicated that he would most likely receive “a hiding” from his mother if she found out what he had done in Australia. He explained that he was culturally obliged, as a Cook Islander, to allow his mother to vent her anger against him and to tolerate any physical violence she chose to inflict upon him as punishment for his behaviour.  That evidence appeared to be honestly given; but I am unable to weigh it because I do not know whether his mother would in fact attack him. I think in the circumstances it is better simply to leave it to one side as a purely speculative prospect.

17. I accept that the applicant is unlikely to find employment in New Zealand and will be dependent on social welfare there as he is here.  I assume a general equivalence between the two welfare systems.  I accept that his mother and sister will most likely accept him in and he will have a place at which to reside on arrival in New Zealand.  I do not think there will be any real impediments as such arising on the applicant’s removal to New Zealand.

18. I accept that the applicant’s children will feel some considerable loss were he to leave. They wish to arrange and pay for the mental-health assistance he needs to address his child-sex offending.  I accept also that the applicant wishes to maintain contact with his children.  Of course, he could maintain contact via phone or through the internet from New Zealand, but that is self-evidently a different sort of contact.

19. I think the applicant has established some ties to the Australian community. His family were all born here as I have indicated. He has also lived here a considerable time, since 1998 in fact; that is, approximately, half his life. His first offending occurred some considerable time after first arriving. He has undertaken the responsibility, with quite some limited capacity, of raising children after the break-up of his marriage in 2006.  I also accept that his parenting role ceased once he was jailed for his first offending and orders were put in place preventing contact with his children until they turned 18.  But I do give him credit for looking after his children, or for attempting to contribute to their welfare, until that time.

20. The striking feature of this case is the unaddressed mental-health issues of the applicant. I do believe he will attempt to engage with a tailored program ‒ and, as I have said, it will have to be tailored specifically for him ‒ addressing his deviant sexual interest in children.  His children have indicated their willingness to help him in this regard.  The applicant does have a very real interest in his own rehabilitation. I believe this rehabilitation is more likely to occur in Australia with family support from his children than in New Zealand.  He will need to be prompted and assisted to undertake therapy if he is to make headway.

    WEIGHING THE CONSIDERATIONS

21. I turn now to weighing the considerations.  I acknowledge that all primary considerations count against the applicant.  Normally, primary considerations are to be given greater weight than the so-called "other” considerations: see paragraph 7(2). I accept that. I accept also that the Direction speaks very strongly, as one might expect it would, against sexual crimes involving children in the various provisions to which I have referred. I accept that the risk- profile at the present time for this applicant is not low, but is, to the contrary, substantial, depending on the circumstances and the degree of supervision or vigilance of those around him.  I also accept that an applicant from New Zealand, where there are no marked differences with Australia, would usually face removal given the offending that has occurred in this case.

22. I do need, however,  to give consideration to the individual circumstances of each case as the first sentence in paragraph 5.2(5) makes clear; and in an appropriate case, other considerations may outweigh even strong primary considerations.  I do not believe this is the case of a person of average or greater-than-average intelligence in relation to whom it may be fairly said that calculated choices were made to offend.  The applicant does have a more limited cognitive ability and certainly limited insight, even now, into the nature of his offending.  The second offending appeared, as I have said, to be reckless and impulsive.  The applicant requires treatment, and I believe he is less likely to engage in that treatment in New Zealand without active family support.   It follows that he will be at greater risk in New Zealand of lapsing into deviant behaviour with a consequential risk of jailing.  Moreover, I would note that this is not a case of a persistent offender who has indecently treated children on multiple occasions in Australia over a number of years. There are two such offences recorded against the applicant separated by eight years. I do not minimise, of course, the gravity of the offending or the suffering of the victims: I merely observe the relative infrequence of the offending as a factor I must weigh.

23. The applicant is, as I have said, a person with a less-than-average intellectual capacity.   I believe that I should give substantial weight to his need for appropriate treatment. I am satisfied that his children, who are now adults, will assist in arranging that treatment here in Australia.  I accept that the treatment may not be successful, but I cannot say at this time that it is unlikely to be successful.  There is a real possibility that the applicant may emerge from treatment with an ability to avoid situations of risk and to resist his deviant urges if he finds himself in a situation of risk. 

24. This is one of those unusual cases where I believe I should give substantial weight to the applicant’s own interests in rehabilitation given that he is a person of more limited intellectual capacity. I might reiterate here that although there is no formal report before me to that effect, the psychologist adverted (see Exhibit A1 at [34]) to the applicant having, on a mental status examination, a below-average level of cognitive functioning (although no “more significant impairment” was noted).  As I have said, the applicant impressed me at the hearing as a person of quite limited capacity. I believe I ought to have regard to this fact in weighing the considerations.

25. This has proved to be a very difficult matter.  All in all, I believe that, on balance, in this unusual case, a weighing of the various considerations does lead to the preferable outcome being a revocation of the cancellation decision notwithstanding the risk to the community.  This decision is clearly linked, in my opinion, to the applicant’s need, as a person of lower intellectual capacity, for one-on-one tailored rehabilitation, with family support. 

    FORMAL DECISION

26. Returning now to the statutory test under section 501CA(4)(b)(ii), I find that there is “another reason” for the cancellation decision to be revoked. My formal decision is to set aside the decision under review and substitute a decision that the cancellation of the applicant’s visa be revoked.

    ……[SGND]………….

    Associate

    Dated: 16 December 2022

Dates of hearing:	3 November 2022
Advocate for the Applicant:	Mukesh Chand Shiva’s Migration Services
Advocate for the Respondent:	Ingmar Duldig Clayton Utz