Broom and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2769 (29 August 2023)
Division:GENERAL DIVISION
File Number(s): 2022/5701
Re:Sophie Patricia Broom
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:29 August 2023
Place:Perth
The decision of the delegate of the Minister dated 11 June 2022 to refuse to grant Brian Hedley Thomas an SC 600 Visitor visa is set aside and substituted with a decision not to refuse the grant of the visa under s 501(1) of the Migration Act 1958 (Cth).
…………………[Sgd]………………....
Deputy President Boyle
Catchwords
MIGRATION – Migration Act s 501(1) – decision of a delegate of the Minister to refuse to grant a visitor visa – whether the visa applicant passes the character test - whether Tribunal should exercise the discretion in s 501(1) to refuse to grant the visa – Direction 99 – visa applicant an extremely low risk of offending - links to the Australian community – the weighing exercise - CRNL v Minister for Immigration, Citizenship and Multicultural Affairs considered - discretion not to grant the visa under s 501(1) not exercised.
PROCEDURE – Recusal - fair-minded lay observer would not reasonably apprehend that the Member might not bring an impartial mind to the resolution of the question or decide the case other than on its legal and factual merits – Ebner v Official Trustee in Bankruptcy applied.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511
Craig v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 196
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
D'Amico v Comcare [2018] AATA 54
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Kumar and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1180
Minister for Home Affairs v HSKJ (2018) 266 FCR 591
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200
Musumeci and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 2885
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
Plaintiff M1 v Minister for Home Affairs [2022] HCA 17
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2000] HCA 63; (2000) 205 CLR 337
Shi v Migration Agents Registration Authority [2007] FCAFC 59
STZS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 1255
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Taylor and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2889
XRGY and Minister for Immigration, Citizenship, and Multicultural Affairs [2023] AATA 755Secondary Materials
Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014)Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021)
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023) – paras 5.1(1), 5.1(2), 5.1(4), 5.2, 6, 7, 8, 8.1, 8.1.1, 8.1.1(1)(a)(i), 8.1.1(a)(ii), 8.1.1(1)(b), 8.1.1(1)(b)(ii), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(h), 8.1.2(1), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(c), 8.2, 8.3, 8.4, 8.4(1), 8.4(4), 8.5(1), 8.5(2), 8.5(2)(c), 8.5(3), 8.5(4), 9
REASONS FOR DECISION
Deputy President Boyle
THE APPLICATION
The Applicant seeks review of a decision of a delegate of the Respondent (Minister) dated 11 June 2022 to refuse to grant Brian Hedley Thomas, the Applicant’s father, an SC 600 Visitor visa (the Decision). The delegate found that Mr Thomas did not pass the character test and exercised the discretion under s 501(1) of the Migration Act 1958 (Cth) (Act) to refuse to grant the visa.
This application is made pursuant to s 500(1)(b) of the Act which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister made under s 501 of the Act.
The application is made, pursuant to s 347(2)(c) of the Act, by the Applicant as Mr Thomas’ sponsor on the basis that a criterion for the grant of the visa sought was Mr Thomas’ intention to visit a family member (s 338(7)(b)).
PRELIMINARY ISSUE – RECUSAL
Prior to the hearing, the Applicant made an application that I recuse myself from hearing and determining the application. The basis of the application for recusal was that I had previously heard and determined an application (Taylor and Minister for Immigration, Citizenship and Multicultural Affairs)[1] in which Dr Lorraine Sheridan had given expert evidence and that I had made certain comments about her evidence. The Applicant relies, in part, on opinion evidence of Dr Sheridan in the present application.
[1] [2022] AATA 2889.
The Applicant claimed, based on statements made by me in [75] and [77] to [79] of the decision in Taylor, that I “…was quick to conclude that the exchange [quoted in the identified passages] demonstrates a lack of credibility on Dr Sheridan’s behalf and the evidence provided by Dr Sheridan to be qualified”.[2] The Applicant also relied on the submission made in the Respondent’s Amended Statement of Facts, Issues and Contentions dated 10 February 2023 (Minister’s SFIC) in these proceedings that:
…the Tribunal should be cautious before accepting Dr Sheridan’s opinion on its face given the comments of Deputy President Boyle in Taylor and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2889 where it was stated that Dr Sheridan’s evidence in that matter had ‘more of the flavour of an advocate’s submission rather than independent expert’s evidence’.[3]
[2] Application for Recusal filed 22 February 2023 at page 2.
[3] R2 at para [26(b)].
The Applicant’s submissions in support of the application for recusal contended that I had “discredited Dr Sheridan as an Expert Witness” and that “a fair-minded person might find DP Boyle to subconsciously have a pre-conceived credit finding against Dr Sheridan, rather than assessing her expert evidence with an objective and open mind”.[4]
[4] Application for Recusal (n 2) at page 3.
The Minister provided submissions in opposition to the recusal application relying on the principles set out in Ebner v Official Trustee in Bankruptcy and other cases.[5]
[5] (2000) 205 CLR 337.
For the reasons that I gave orally at the commencement of the hearing on 7 March 2023, I reject the Applicant’s assertions and refuse the application for recusal.[6]
[6] Transcript at 4-5,
Contrary to the Applicant’s assertion, I did not in the paragraphs cited by the Applicant or elsewhere in the decision in Taylor, conclude that Dr Sheridan lacked credibility or that her evidence was “to be qualified”, whatever that means. As I noted at [72] of Taylor, Dr Sheridan herself, quite rightly, “qualified” her report by identifying a number of assumptions upon which her report and assessment were based.
As I said at the hearing of this matter in rejecting the recusal application, what I did in Taylor, as I was required to do, was to review all of the evidence, which included the written report and oral evidence of Dr Sheridan, to assess the likelihood of the applicant reoffending, the task mandated by para 8.1.2(2)(b) of Direction 90, the Ministerial Direction applicable at that time. In fact, as is made clear in the reasons for decision in Taylor, I accepted aspects of Dr Sheridan’s report and evidence. At [85] and [86] I accepted Dr Sheridan’s conclusions that Mr Taylor had not been rehabilitated, that Mr Taylor had “little control over his drug use”, that he “is likely to have co-occurring psychiatric and substance use problems” and, at [149], I accepted Dr Sheridan’s report insofar as it listed “physical and psychological conditions which have the potential, certainly if not treated, to be an impediment to the applicant obtaining and keeping employment and, therefore, in establishing himself in the United Kingdom”.
In dismissing the recusal application, I said at the hearing on 7 March 2023 that:
I have no pre-formed view of Dr Sheridan and insofar as the respondent has made the submission that I should have reluctance in accepting Dr Sheridan’s evidence, when I did receive that, I didn’t think that was [a] particularly appropriate submission to make and it’s a submission that I do not accept. I will treat Dr Sheridan’s evidence totally objectively…. Dr Sheridan is also, of course, supported by other evidence as well. I can assure the parties that I will have no preconception about Dr Sheridan, who I clearly accept, and the respondent does not contest, her expertise on the usual tests as laid out in [Makita] for a person to qualify as an expert.[7]
[7] Transcript/5.
Both parties in their submissions referred to the applicable principles for recusal being those set out by the High Court in Ebner v Official Trustee in Bankruptcy.[8] Most recently the High Court in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs confirmed that Ebner still represents the law.[9] At [67] of QYFM Kiefel CJ and Gageler J summarised the test as follows:
As this Court held in Ebner v Official Trustee in Bankruptcy, a judge is disqualified, subject to qualifications relating to waiver or necessity, "if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". The Ebner test has two steps: first, it requires the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits; and second, there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.
(Footnotes omitted)
[9] [2023] HCA 15.
At [38] their Honours observed that:
Application of the criterion was identified in Ebner, and has been reiterated, logically to entail: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.
(Footnotes omitted)
At [96] of QYFM, Justice Gordon referred to the plurality’s comment at [19] of Ebner that:
Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges.
(Emphasis added)
In the present case, I do not accept that a “fair-minded lay observer might reasonably apprehend that [I] might not bring an impartial mind to the resolution of the question [that I am] required to decide”, that is, to “decide [the] case other than on its legal and factual merits”. The fact that in another case, for reasons clearly articulated in the reasons for decision in that case, I did not accept some of the conclusions reached by an expert witness in that case, would not cause a fair-minded lay observer to reasonably apprehend that I would decide the present case other than on its legal and factual merits. A fair-minded lay observer would appreciate that it is the obligation of the Tribunal to thoroughly review all evidence presented, including expert evidence, and to assess the weight to be given to each piece of evidence. That is all that happened in the case of Taylor and my assessment was of Dr Sheridan’s evidence in that case. It was not an assessment of Dr Sheridan’s expertise or her credibility generally.
Further, if the Applicant’s recusal application were to be accepted, it would come close to the Applicant “choos[ing] their judge” (in this case, Tribunal member) contrary to the plurality’s observation in Ebner quoted in [14] above. The jurisdiction of this Tribunal requires it to hear many types of applications which involve competing expert opinion, in particular medical expert opinion. As noted above, it is the job of the Tribunal to understand and assess that expert opinion evidence and, where there is competing expert opinion, to prefer one opinion or set of opinions over the other. It is therefore inevitable that in discharging its statutory function properly, the Tribunal will not accept some expert opinion evidence or will prefer other expert opinion evidence. In certain fields, psychology and psychiatry in particular, the pool of qualified experts is very limited, and the same experts often give evidence to the Tribunal. If a Tribunal member were to be excluded from hearing a matter because he or she had not accepted an expert’s opinion (for reasons explained) in an unrelated previous matter, then that would significantly interfere with the Tribunal’s ability to process its workload. It would be a litigant choosing their judge.
The Applicant has not established a legal basis upon which I should recuse myself.
THE ISSUES FOR DETERMINATION
The substantive issues for the Tribunal to determine are whether the Mr Thomas passes the character test as defined in s 501(6) of the Act, and if he does not, whether the Tribunal should exercise the discretion in s 501(1) to refuse to grant the visa.
BACKGROUND
The following background is taken largely from the Applicant’s Statement of Facts, Issues and Contentions (Applicant’s SFIC) and is not disputed by the Minister.
Mr Thomas is a 69-year-old citizen of the United Kingdom.
On 17 June 2018, Mr Thomas applied for a SC 600 Visitor visa to visit his family in Australia. Mr Thomas had successfully applied for and received grants of similar visitor visas on 13 occasions over the last 34 years and had arrived in Australia 14 times.
In the visa application of 17 June 2018, Mr Thomas made a disclosure to the Department of the then recent convictions. These convictions occurred on 24 March 2017 and related to events between 11 April 2012 to 29 August 2015. Mr Thomas pleaded guilty and was convicted of criminal offences in England with no custodial sentence imposed.
The above disclosure caused the Department to issue Notices of Intention to Consider Refusal dated 25 May 2020, 28 May 2021 and 12 March 2022. Mr Thomas made submissions in response to the notices.
On 11 June 2022, Mr Tomas received notice of the Decision of the delegate to refuse the grant of the visa under s 501(1) referred to in [1] above.
Mr Thomas purported to lodge an application for the review of the Decision in the Tribunal, however, by operation of s 500(3) of the Act he was not entitled to make such an application.
On 11 July 2022 the Applicant, who has standing to make such an application (see [3] above), made the present application. As the application was not made within the time prescribed by s 29 of the Administrative Appeals Tribunal Act 1975 (Cth), an extension of time was sought by the Applicant and, with the consent of the Minister, an order was made by the Tribunal on 26 July 2022 extending time for the application to be made to 11 July 2022.
THE HEARING AND THE EVIDENCE
The application was heard on 7 March 2023. The Applicant was represented by Mr JD Tyndall and the Minister was represented by Ms D Jones-Bolla.
The following documents were admitted into evidence:
(a)Statutory Declaration of Mr Brian Hedley Thomas dated 10 January 2023 (A1);
(b)Statutory Declaration of Ms Sophie Patricia Broom dated 6 July 2022 (A2);
(c)Statutory Declaration of Ms Sophie Patricia Broom dated 25 January 2023 (A3);
(d)Statutory Declaration of Ms Sophie Patricia Broom dated 27 January 2023 (A4);
(e)Applicant’s Tender Bundle, filed 3 February 2023 (A5);
(f)Statutory Declaration of Ms Patricia Mary Yates dated 8 July 2022 (A6);
(g)Statutory Declaration of Ms Patricia Mary Yates dated 25 January 2023 (A7);
(h)Psychological Assessment and Report of Dr Lorraine Sheridan dated 14 December 2022 (A8);
(i)Independent Psychological Report of Joanna Brook dated 2 August 2020 (A9);
(j)Independent Psychological Addendum Report of Joanna Brook dated 12 July 2022 (A10);
(k)Independent Psychological Addendum Report of Joanna Brook dated 19 January 2023 (A11);
(l)Section 37 T-Documents, filed 3 February 2023 (R1); and
(m)Minister’s SFIC, filed 10 February 2023 (R2);
The following witnesses gave evidence at the hearing:
(a)Mr Brian Hedley Thomas
(b)The Applicant;
(c)Ms Patricia Mary Yates;
(d)Dr Lorraine Sheridan; and
(e)Ms Joanna Brook.
LEGISLATIVE FRAMEWORK
Section 501(1) of the Act is as follows:
The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
(Original emphasis.)
Section 501(6) of the Act relevantly provides:
For the purposes of this section, a person does not pass the character test if:
…
(e) a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child.
…
(Original emphasis.)
Section 499(1) of the Act provides that
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Section 499(2A) of the Act provides that “A person or body must comply with a direction under subsection (1).”
On 23 January 2023, the relevant minister for the purposes of s 499 of the Act, made a direction titled “Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 99). The commencement date for operation of Direction 99 was 3 March 2023. Upon its commencement, Direction 99 revoked the operation of “Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 90).
Paragraph 5.1 sets out the objectives of Direction 99. Sub-paragraphs 5.1(1) and (2) provide:
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa.
(2) Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they do pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
Paragraph 5.1(4) provides that:
The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 of Direction 99 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to refuse a visa under s 501 of the Act. These principles are 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 engaged 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 other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) 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 8.55(2) [sic] (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.
Paragraph 6 of Direction 99 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 99 (where such considerations are relevant) in order to determine whether the visa should be refused.
Guidance in relation to how the relevant considerations are to be taken into account is found in para 7 of Direction 99 which provides that:
(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.
Paragraph 8 of Direction 99 is as follows:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
Paragraph 9 of Direction 99 is as follows:
(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) Legal consequence of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests
CONSIDERATION
Does Mr Thomas pass the character test?
Annex A of Direction 99 contains an overview of and guidance on how the character test is to be applied. Relevant to the present case, para 7 of Section 2 of Annex A provides as follows:
(1) A person will not pass the character test if a court in Australia or a foreign country has convicted them of one or more sexually based offences involving a child or found them guilty of such an offence, or found a charge proven against them, even if the person was discharged without conviction.
(2) Sexually based offences involving a child include, but are not limited to offences such as:
a) child sexual abuse;
b) indecent dealings with a child;
c) possession or distribution of child pornography;
d) internet grooming; and
e) other non-contact carriage service offences.
(3) This provision applies irrespective of the level of penalty or orders made in relation to the offence.
The Applicant does not contest that Mr Thomas does not pass the character test.[10] Having been convicted of three counts of “Making Indecent Photograph or Pseudo-photograph of children between 11/4/2012 and 29/8/2015”,[11] I find that Mr Thomas has been convicted of one or more sexually based offences involving a child and, by operation of s 501(6)(e)(i), does not pass the character test (see [31] above).
[10] A5/341 at para 4.
[11] R1/35-6.
Should the Tribunal exercise the discretion in s 501(1) to refuse to grant the visa?
Having found that Mr Thomas does not pass the character test, the issue for determination is whether the discretion not to grant him a visa should be exercised. Paragraphs 8 and 9 of Direction 99 identify the primary considerations and other considerations to which a decision-maker is to have regard in determining whether to exercise the discretion not to grant the visa (see [40] and [41] above)
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)
Paragraph 8.1 of Direction 99 provides that, when decision-makers are considering the protection of the Australian community, they:
(1) ... 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.
(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)
Paragraph 8.1.1 of Direction 99 relevantly provides:
(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…
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….
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;
(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;
…
h) where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The parties’ contentions
The Applicant
The Applicant’s SFIC made the following submissions identifiable as relevant to the seriousness of Mr Thomas’ offending:
(a)The Applicant accepts that offences of a sexual nature involving a child are serious.
(b)The offences of which Mr Thomas has been convicted are his only criminal convictions either in Australia or elsewhere.
(c)Mr Thomas was never charged, accused or convicted of “creating” in relation to the “production” of images (i.e. capturing video or still images). The charges faced were in relation to the wider interpretation of the term “making”, i.e. as a result of downloading images from a website onto a computer.
(d)Mr Thomas did not receive a custodial sentence.[12]
[12] A5/347-348 at paras [3]-[4], [6].
The Minister’s SFIC made the following submissions relating to the seriousness of Mr Thomas’ offending:
(a)The offending should be viewed as very serious (para 8.1.1(1)(a)(i)).
(b)Regard must also be had to the frequency and cumulative effect of the offending (paras 8.1.1(1)(d) and (e) of Direction 99). The offences were not an isolated incident and occurred over a period of three years.
(c)The Pre-Sentence Report dated 21 March 2017,[13] identified the circumstances of Mr Thomas’ offences. Mr Thomas reported that he had “found all sorts of unsavoury images and was somewhat fascinated by these” and that he looked at the images on “average once a week over the past few years”.[14]
(d)While Mr Thomas was not sentenced to a term of imprisonment, he was sentenced to a 12-month community order, rehabilitation activity requirement (30 days); curfew requirement (three months) with electronic tagging; Sexual harm prevention order (five years); Sex offenders notice (five years); forfeiture order made for computer hard drive and ordered to pay costs and a victim surcharge (para 8.1.1(c) of Direction 99).
(e)Mr Thomas provided false and misleading information to the Department in respect of his 2017 application for a visa. When asked “Have you ever been charged with any offence that is currently awaiting legal action?” he relevantly answered ‘no’[15] (para 8.1.1(f) of Direction 99).
(f)The offences of which Mr Thomas has been convicted are also offences in Australia pursuant to s 220 of the Criminal Code Act Compilation Act 1913 (Cth) (para 8.1.1(h) of Direction 99).[16]
[13] A5/622.
[14] A5/619, Citing the report of Dr Whitty, consultant psychiatrist dated 6 October 2015.
[15] R1/219.
[16] R2/5-6 at [20].
The Applicant provided a reply to the Minister’s SFIC. Relevant to this consideration, the reply submitted that:
(a)While Mr Thomas was convicted of three offences in the period from 11 April 2012 to 29 August 2015, the individual convictions imposed by the Court relate separately to one offence each during that period, albeit over the extended period of time. This is not a case of multiple reoffending because the Court did not convict Mr Thomas of further offences and limited the convictions to those three offences in that time period.
(b)There is no further offending of which Mr Thomas has been convicted and there is no evidence of repeat offending.
(c)It is seven years since Mr Thomas offended and there is no cumulative effect because there has been no repeat offending. Mr Thomas has no history of recidivism, he therefore demonstrates no trend of increased seriousness of further offending.[17]
[17] Applicant’s submissions in reply filed 4 March 2023 at page 3.
In closing submissions, Mr Tyndall on behalf of the Applicant, sought to rebut the Minister’s characterisation of Mr Thomas’ offending as repeat offending because of “the duration of the period” over which the offending occurred and that there was, therefore a cumulative effect. The Applicant contended that that was not the case because the offending was “an isolated period” and there had been only “three offences”.[18]
[18] Transcript at 62.
In closing Ms Jones-Bolla repeated the Minister’s contention that Mr Thomas’ offending was not an isolated incident, but rather “was multiple incidents, that occurred over a period of three years”.[19] While the convictions related to 80 images, the evidence was that Mr Thomas had viewed over 100 images.
[19] Transcript at 66.
The details of the offences were set out in the Pre-Sentence Report as follows:
Mr Thomas has pleaded guilty to three counts of making indecent images of children
between 11 April 2012 and 29 August 2015. Crown Service Prosecution documentation indicates Mr Thomas viewed 11 Category A images of a child, 17 Category B images of a child and 52 Category C images of a child. The images viewed involved female children who were thought to be between the ages of 8 and 12 years.[20][20] A5/623.
Dr Sheridan’s evidence at the hearing described the different categories of image in the United Kingdom. Her evidence was:
A category A image in the UK is a very nasty image that often involves bestiality or suffering from child.
…
A category B is non-penetrative sexual activity. So the A was usually penetrative, or tortural, sadism or bestiality. And, B was non-penetrative but still sexual activity.
…
A category C is a bit of a catch all, as I recall C and - it would just catch things that are still unpleasant and wrong, but not within categories A and B.[21]
[21] Transcript at 43.
Following his original application to the Department for the visa, Mr Thomas provided a statement of the circumstances in which the offending had occurred.[22] In that statement dated 25 June 2018, Mr Thomas said:
Back in early 2012 when spam mail first started to become a problem in the UK I searched on line and down loaded a piece of software to hide my IP address. To prevent company’s [sic] I researched logging my IP address and using it to send me spam mail or marketing information.
I continued using this for several months without problems and it seemed to be working however what I did not know at the time was that is [sic] was also a gateway to the dark net. I only found this out after a small onion icon appeared on the screen of the software. On googling it I f a link and on inserting this into the software I found myself in a very different place. In 2012 I had not heard of the dark net nor what it contained and at that moment in time I regret to say instead of closing it down my inquisitive nature started looking around and found all sorts of illegal activity which eventually ended up with me coming across photos of child Pornography. My actions were not for sexual gratification and 1 know it is totally immoral. Irrespective of what I was looking at these are real children, and my actions only go towards encouraging the abuse of children. It is something I will have to live with for the rest of my life.
[22] R1/39.
Mr Thomas was cross-examined as to the number of images and the frequency of his viewing the images that he accessed:
COUNSEL: …Dr Whitty reported that you told him that you looked at the images on average once a week for the past few years. Would you agree with that statement now?
MR THOMAS: Probably not, actually…did say that to - I think it was very, very fresh in my mind. I have, over the period of my rehabilitation have thought long and hard about it and I honestly don’t believe that it was on a weekly basis because I just - it was not something that I necessarily was interested in every single week. It was periods. I might go on it for three or four times in a week, and I think probably what I - what I was meaning was that if I averaged it out over a period of time I probably went on.
…
COUNSEL: You reported to Dr Sheridan that the authorities found a hundred images?
MR THOMAS: Yes.
COUNSEL: Is that an accurate number in respect of the number of images that you would’ve viewed, and when I refer to images I’m talking about child pornography images? So, would that be an accurate number of what you viewed or is that just what the authorities found?
MR THOMAS: I would say - I would not think I viewed very many more to be honest with you. I don’t know where they found - or what they found it on, obviously my computers that they took away from me. They took all of my house computers, there’s all my work computers, my laptops and my phones. So, when I was on - online and, you know, if I was on there for 10, 15 minutes, you know you click through and you look and you close, and you look and you close. Did I see many more than that? I probably - probably saw more than that, to be honest with you, but I don’t know how many more. They weren’t, as I say, the images I looked at weren’t always of child pornography.[23]
[23] Transcript at 15-17.
In assessing the seriousness of Mr Thomas’ offending and other conduct against the considerations identified in para 8.1.1 of Direction 99 relevant in this case, I find that:
(a)Paragraph 8.1.1(1)(a)(i) – Mr Thomas has been convicted of three offences of a sexual nature which are viewed very seriously.
(b)Paragraph 8.1.1(1)(b) – Mr Thomas’ offending behaviour does not come within the categories set out in this subparagraph.
(c)Paragraph 8.1.1(1)(c) – Mr Thomas did not receive a custodial sentence, however, the terms imposed on Mr Thomas were extensive effective over an extended period (see [48(d)] above).
(d)Paragraph 8.1.1(1)(d) – while the Applicant is correct in her assertion that Mr Thomas was convicted of only three offences, Mr Thomas’ own evidence was that he viewed illegal images repeatedly. While at the hearing he did not necessarily accept his estimate provided to Dr Whitty of having gone online and viewed images “on average once a week for the past few years”, I conclude from Mr Thomas’ evidence (see [55] above) that he regularly went online and viewed images over a three-year period. In that sense, while he may only have been convicted for three offences, it is clear that the offending behaviour was repeated on numerous occasions over the three-year period.
(e)Paragraph 8.1.1(1)(f) – Mr Thomas conceded that he had provided false information in relation to pending legal action in his application for the visa.[24]
[24] Transcript at 19; R1/219.
Mr Thomas offending involved crimes of a sexual nature against children. While his criminal record is limited only to those offences, this consideration requires assessment of the nature and seriousness of the subject’s “criminal offending or other serious conduct”. I am mindful of para 8.1.1(1)(a)(i) and that crimes of a sexual nature are to be viewed very seriously, but I am also mindful of the limited nature of Mr Thomas’ offending and the fact that the Court did not see the offending as being so serious as to warrant a custodial sentence (para 8.1.1(1)(c)). It is, in my assessment, appropriate to view Mr Thomas’ criminal offending as serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
Paragraph 8.1.2 of Direction 99 relevantly provides:
(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 non citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(c) where consideration is being given to whether to refuse to grant a visa to the non-citizen- whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
In assessing the risk that the Applicant poses to the Australian community, I am required to assess the nature of the harm that would be caused should the Mr Thomas engage in further criminal or other serious conduct (para 8.1.2(2)(a)). This consideration also requires an assessment of the likelihood of Mr Thomas re-offending (para 8.1.2(2)(b)). There is no statutory constraint on the way risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment [25]
[25] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J who referred to the basis for the assessment of the risk of re-offending as requiring a ‘rational and probative basis’.
Nature of harm to individuals or the Australian community (8.1.2(2)(a))
The Applicant’s SFIC made no submission on the nature of the harm to individuals or the community if Mr Thomas were to reoffend. The Minister’s SFIC contended that, if Mr Thomas were to reoffend, it would be likely to result in significant physical and psychological harm to members of the Australian community including children.[26] The Minister further contended that the nature of the harm to individuals should Mr Thomas engage in further criminal or other serious conduct is so serious that any risk of similar conduct in the future is unacceptable.[27]
[26] R2/7
[27] Ibid.
The Minister’ SFIC contended that:
The creation of such material necessarily involves the actual abuse of children in order to photograph or film them. That could involve Australian children as a result of any such activity taking place in Australia. The Minister relies on the following in support of this submission:
a. the opinion in the pre-sentence report which states:
the children in the images are subjected to abuse and sexually harmed in the making of the material. Each child in the images will have suffered significant emotional, psychological and possibly physical harm within the context of creating images. Each time the images are viewed the children are repeatedly victimised. Whilst Mr Thomas did not create the images, accessing such material via the internet creates a demand for such material.
b. …
c. the findings of Full Court of the Federal Court of Australia in Craig v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 196 at [11]:
The Minister’s reasoning involves no more than common sense extrapolation from the known facts, rather than being unsupported and thereby illogical or irrational. In particular it is obvious and logical that those who in some way use child exploitation material contribute to market demand for the creation of more such material. The creation of such material necessarily involves the actual abuse of children in order to photograph or film them. That could involve Australian children as a result of any such activity taking place in Australia. It was therefore open to the Minister to find that there was a risk (albeit low) to the Australian community in the appellant remaining in Australia and committing further child exploitation material offences here. That the appellant might find a way to pose a similar risk to children in Australia from committing such offending overseas does not render that conclusion without rational support. Precise equivalence of risk in such a predictive exercise is impossible in any event.[28]
[28] R2/7-8.
In relation to the nature of the harm that would be caused if Mr Thomas were to offend as he has in the past, the Applicant’s reply submitted:
84) The Applicant acknowledges that Thomas’ actions may have impacted the community at large, especially the victims subjected to the production of child pornography.
85) It is also understood that Thomas' actions, in viewing the pornographic images in question, may have contributed to the market demand of such material.[29]
[29] Applicant’s Submissions in reply (n17) at page 11.
I make two observations about the above Applicant’s submissions in reply. The first is that they miss the point of para 8.1.2(2)(a) of Direction 99 which requires consideration of “the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct”, not what harm Mr Thomas’ past criminal behaviour may have caused. The second observation is that both statements seek to downplay or demonstrate a lack of appreciation of the consequences of, and the harm caused by, people “consuming” online child abuse material by couching the apparent concession in terms of “may have” rather than conceding, unconditionally, that such criminal behaviour does cause harm. As quoted at [61] above, the Full Court of the Federal Court found in Craig, “...it is obvious and logical that those who in some way use child exploitation material contribute to market demand for the creation of more such material”.
I can do no better than adopting the above finding of the Full Court in Craig as to the nature of harm to individuals or the Australian community that would be caused if Mr Thomas were to offend as he has in the past.
The likelihood of the non-citizen engaging in further criminal or other serious conduct (8.1.2(2)(b))
The Applicant’s SFIC made the following contentions relevant to the risk of Mr Thomas offending as he has in the past:
(a)The applicant relies on the Pre-Sentence Report, the reports and oral evidence of Ms Brook-Tanker (sometimes referred to as Ms Brook)[30] and Dr Sheridan,[31] and the report of Dr Whitty.[32]
(b)Based on the evidence before the Tribunal, it is apparent that Mr Thomas is objectively unlikely to reoffend based on professional opinions some of which are long standing; and does not present an unacceptable risk to the Australian community.[33]
[30] A9/11.
[31] A8.
[32] A5/784.
[33] A5/349.
In relation to the risk of Mr Thomas reoffending, the Minister’s SFIC:
(a)Referred to the assessment in the Pre-Sentence report that ‘Mr Thomas presents a medium risk of serious harm towards children’.
(b)Submitted that the task of the Tribunal necessarily involves a degree of postulation as to what might occur in the future should the visa applicant’s application not be refused and, in this regard, the Tribunal is “entitled to speculate as to what might happen in the future by reference to evidence of what had occurred in the past”
(c)Contended that Dr Sheridan’s assessment that Mr Thomas “is not a risk of reoffending” should not be accepted. In particular, the Minister contested Dr Sheridan’s assessment that none of the variables on the Child Pornography Offender Risk Tool (CPORT) applies to Mr Thomas in circumstances where he has been convicted of an offence which is, presumably, captured by the CPORT.
(d)Ms Brook-Tanker’s assessment of Mr Thomas being a low risk of re-offending should be viewed in the context of her observation that ‘there remain gaps in professional knowledge with respect to the extent and type of possessors of sexually explicit material and whether they share most or all of the characteristics of other types of sex offender’.
(e)The Tribunal should be cautious in accepting Ms Brook-Tanker’s views as she previously treated Mr Thomas.[34]
(f)While Mr Thomas has completed five sessions at the Lucy Faithful Foundation in 2016 and a further four sessions in 2016 and 2017, these sessions were not a treatment program. Further while he had ‘a number’ of sessions with Ms Brook-Tanker in 2015 he still refers to the reason for his offending as being inquisitive.
(g)Mr Thomas viewed child pornography for three years and only sought help after he was arrested.
(h)Mr Thomas has been described by a retired detective constable as having a ‘streak of recklessness’.[35]
(i)Mr Thomas provided false information when applying for the visa.
(j)As for para 8.1.2(2)(c) of Direction 99, the visa applied for is a visitor visa which would allow Mr Thomas to remain in Australia for a period of up to 12 months. Further, in light of the nature of the offending, this is not a matter in which the “short probable duration of the… visa” militates against a finding that the visa applicant presents an unacceptable risk of harm to the Australian community [36]This is also not a case where there are strong or compassionate reasons for granting a short stay visa.[37]
[34] Citing D'Amico v Comcare [2018] AATA 54.
[35] R1/112.
[36] Citing Kumar and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1180 at [75].
[37] R2/8-12.
The Applicant’s reply was to the following effect:
(a)Dr Sheridan’s opinion is that Mr Thomas is “genuinely remorseful and continues to be pained by both his offending, and its continued impact on his family”.[38]
[38] A5/664.
(b)Mr Thomas has stated that he will continue to “take responsibility for [his] actions and offending behaviour" and has proven this through his commitment to maintaining his rehabilitation on an ongoing basis and by not engaging in any future re-offending or offending.
(c)The Pre-Sentence Report assessment that “Mr Thomas presents a medium risk of serious harm towards children” is outdated. The report does not present the tests and expert knowledge currently available
(d)According to Ms Brook-Tanker, risk assessments prepared by the Probation Service for the purposes of a Pre-sentence report are “inherently limited in considering an individual and the specific risk factors associated with one’s propensity for offending”. The Pre-Sentence Report is six years old. The evidence of Ms Brook-Tanker and Dr Sheridan should be preferred.
(e)The CPORT test administered by Dr Sheridan placed Mr Thomas at the lowest end of the risk category. Dr. Sheridan specifically stated in her report that: “I am of the view that Mr Thomas does not pose a risk of physical and psychological harm to the Australian community, especially children.”[39]
[39] A5/664.
(f)Ms Brook-Tanker concluded “I do not have any significant concerns about risk to self or others”.[40]
[40] A5/640.
(g)The case of Craig is distinguishable on its facts.
(h)The Applicant admits that Mr Thomas’ previous offending may have contributed to the market demand for child pornography at that time (see my comments at [63] above)
(i)Dr Whitty reported that, in his Expert Opinion, he did “… not have any significant concerns about risk to self or others. I do not think he is likely to re-offend”. Retired Detective Constable Michael Horigan also stated “I would in no way consider him (Thomas) to be a danger, either physically or psychologically to any member of the public…I have no doubt in my own mind that any chance of his reoffending is virtually none”.[41]
[41] R1/112.
(j)The visa sought is only for a short period for Mr Thomas to visit his family.
(k)Muggeridge is distinguishable on the facts. The Tribunal ought not to accept that speculation can exceed the rational connection to the facts in hand, the facts in hand in relation to Mr Thomas bear no relation to the seriousness of the conduct in Muggeridge.
(l)Thomas’ previous offending behaviour is serious, however, Mr Thomas has not committed any other criminal offences. His offending is isolated, and he remains committed to a life of rehabilitation. Mr Thomas is truly remorseful and contrite for his previous offending behaviour. He stated that “I have no intention of causing harm to anyone or committing any further offences”.
(m)Clinical Psychologist, Dr. Sheridan, stated that “Mr Thomas’ CPORT scores and my clinical interview with him lead me to the opinion that he is not at risk of offending. I saw no pathological indicators that would suggest he may reoffend”.
(n)Mr Thomas has engaged with Lucy Faithful Foundation and has been treated by Ms Brook-Tanker.
(o)Dr. Sheridan clearly stated that her determination of Mr Thomas as being “not at risk of reoffending” was reached by utilising not only the results of the CPORT assessment but also her clinical interview with him and the other material available to her. There is no evidence Dr. Sheridan’s assessment and determination of Mr Thomas is incorrect.
(p)Ms Brook-Tanker’s expert opinion and report is well-grounded and based on her professional experience, not just academic learning. For that reason, the Tribunal ought to accept it.
(q)There is substantive evidence before the Tribunal that holds significant probative value and demonstrates that Mr Thomas’ conduct is not “so serious” that there is “an unacceptable risk”.
(r)Ms Brook-Tanker’s opinion and impartiality should not be eroded because she was Mr Thomas’ treating psychologist. She is trained to be objective and impartial when practicing and acting as an expert witness.
(s)Mr Thomas completed five sessions of an individualised course known as “Inform Plus” run by the Lucy Faithfull Foundation and four additional sessions with the foundation between 15 September 2016 and 10 February 2017. These sessions were two hours duration each and were self-funded. Mr Thomas actively participated in them.
(t)Dr. Sheridan reported that Thomas “…viewed all sorts of material on topics which were morbid and dark but not specifically illegal to read about such as hiring hitmen, buying illicit drugs and purchasing illicit weapons (none of which he acted on)”. Dr Sheridan further opined that “In [her]view this added credibility to his argument that he developed a fascination with delving into the more dangerous part of the dark web and seeing what was there. Further, his offending did not escalate. He did not seek out and communicate with other people who view this type of material, and he did not collect a large number of images. Instead, he stopped using the dark web completely.”
(u)Mr Thomas’ arrest and convictions were a wake-up call for him to come to terms with his offending behaviour. Mr Thomas stated in his Statutory Declaration that “The whole experience of being arrested, being charged, and having to look my family and friends in the eyes to inform them of my charges and being convicted was frightening”.
(v)The Applicant conceded that Mr Thomas in his 2018 visa application stated “no” to question one on page 10 of 13 in relation to the question “has the applicant ever been convicted of an offence” and that he said “no” to question three on page 10 of 13 “has the applicant ever been guilty for a sexually based offence involving a child”. However, immediately below those two questions, in answer to the next question, Mr Thomas states “yes” and disclosed the details of his convictions and sentences.[42]
(w)In relation to the period of the visa, Mr Thomas applied for the shortest period, three months. In his application he identified the arrival and proposed departure dates.
(x)The intended visit to a family member it is submitted a compassionate ground for granting a short stay visa. To date, Mr Thomas has been unable to travel to Australia to see his Australian family in-person for over six years. Dr Sheridan’s report identifies psychological health reasons for Mr Thomas visiting his grandchildren.[43]
[42] A5/889.
[43] Applicant’s submissions in reply (n 17).
Ms Brook-Tanker provided three reports.[44] Ms Brook-Tanker summarised her qualifications in her first report dated 2 August 2020.[45] They are:
·Consultant Clinical and Forensic Psychologist having 29 years-experience in the forensic field.
·Chartered Psychologist in both the Clinical and Forensic specialities accredited by the British Psychological Society.
·Member of the Faculty of Forensic Clinical Psychology, British Psychological Society. Registered with The Health Care Professions Council as a Registered Psychologist, Clinical and Forensic.
·Chartered Scientist (British Psychological Society).
·29 years’ experience of providing psychological reports to the Courts, Parole Boards and Mental Health Review Tribunals.
[44] A9-A11.
[45] A9/2.
In her report dated 2 August 2020, Ms Brook-Tanker:
·Identified the various reports and documents and the research and academic material upon which she based her assessments.
·Described her interview with Mr Thomas including her discussions with Mr Thomas on the drivers for his offending and the rehabilitation that he had undertaken.
·Concluded that:
Consideration of Mr Thomas’ history, and the research in this area, suggests that he is a low risk of offending in terms of sex offences. He is unlikely to engage in criminal conduct generally. He displays genuine remorse. He is of good character.[46]
[46] A9/13.
In her report dated 12 July 2022,[47] which she described as an addendum report, Ms Brook-Tanker again identified the reports, other information and research upon which she relied. She concluded that:
5.1 I remain of the view that Mr Thomas is at a low risk of re-offending for the reasons outlined in my initial report and as described in this addendum report.
5.2 It would be of benefit for all parties emotionally, in regard to psychological wellbeing, for Mr Thomas to have face to face contact with his family in Australia.[48]
[47] A10.
[48] A10/9.
In her most recent report dated 19 January 2023,[49] Ms Brook-Tanker commented on further material provided to her and responded to comments made by the Minister on her previous reports and assessments. Ms Brook-Tanker’s comments were extensive and responded to specific questions posed by the Applicant’s solicitors. Relevant to this application, her report included the following:
[49] A11.
·Do you believe Thomas has been rehabilitated? Please explain.
Consideration of Mr Thomas’ personal history, his current lifestyle and sources of personal support, a formulation of his offending behaviour and consideration of his progress in treatment and rehabilitation, as well as him having desisted from offending behaviour since his conviction, suggest that he has been rehabilitated in regard to addressing the salient factors that appear to have contributed to his offending.
·The Department submit that the Pre-sentence Report dated 21 March 2017 assesses Thomas as presenting a “medium risk of serious harm towards children” (See: para.4.2 of the Presentence Report dated 21 March 2017). In your professional opinion and by referring to your reports do you believe this has changed or do you still hold the view that he is of low risk to the Australian community especially children?
The risk assessments prepared by Probation staff, for the purposes of a
presentence report, are based on a model of offending referencing group data and
actuarial measures which produce categorical descriptors of risk (OASYS). The
disadvantages of this approach are that there are, inherently, limitations in regard
to considering an individual and the specific risk factors associated with one’s
propensity for offending. I remain of the opinion that my conclusions and risk
assessment are objective and evidence based in this regard.
·The Department have made submissions which implies you might not be impartial as you are Thomas’ treating Psychologist….
I have been trained to be objective and impartial in regard to my practise and
in acting as an expert witness concerning criminal justice proceedings. The timing
and nature of my work with Mr Thomas is also relevant to understand; my reports
concerning his application for a Visa were prepared some time after my sessions
with him had ended, having taken instruction from his Solicitor. The conclusions
reached are impartial and evidence-based taking into account information
obtained from the collateral.[50]
[50] A11/12-13.
Ms Brook-Tanker gave evidence (by video) at the hearing. In cross-examination she agreed that there was a paucity of research into the type of offending committed by Mr Thomas and the causes of such offending. In re-examination, she was asked whether, despite the paucity of research, she still held to the assessment of Mr Thomas as being a low risk of re-offending:
MR TYNDALL: All right. So even though there’s a paucity of research, do you still hold by your opinion as being accurate?
MS BROOK: Yes, I do. There is an emerging body of research which I cited. I conducted and extensive literature review before preparing my reports.
…And my opinions are evidence based there, on that report.
MR TYNDALL: So your conclusion is that
He is unlikely to engage in criminal conduct generally, he displays genuine remorse, he is of good character.
Do you stick by that opinion?
MS BROOK: Yes, based on the evidence available to me, yes.[51]
[51] Transcript at 60-61.
Dr Sheridan’s report dated 16 December 2022 contained the following description of her qualifications and experience:[52]
I am registered to practice as a Forensic Psychologist in Australia. I worked as a Chartered Forensic Psychologist and Psychologist Practitioner in the UK, qualifying in 2004. I am an adjunct Associate Professor of psychology at Curtin University. I have conducted assessments and provided approximately 250 expert witness reports for the Justice System.
[52] A8.
Dr Sheridan conducted a two-hour clinical interview with Mr Thomas on 8 December 2022. She said that in addition to the clinical interview, she administered psychological assessment in the form of the Personality Assessment Inventory (PAI-Plus). Her report included the following assessments in response to questions asked by the Applicant’s lawyers:
What is the likely effect that Mr Thomas’ continuous physical absence/separation would have on his young Australian family members and their close relationship?
29. Given the closeness of the family, it would be expected that the continued physical separation that the family are experiencing would cause significant long-term stress. It is the case that research has identified a link between greater cohesion with grandparents reduced depressive symptoms in adolescent/adult grandchildren (e.g. Moorman & Stokes, 2016).
Could Mr Thomas’ continued physical absence destroy their family connections?
31. Although the continued physical absence of Mr Thomas is unlikely to destroy family connections, the bonds between family members could weaken. The emotional bond between Mr Thomas and his daughter and grandchildren appears to be very strong. Given that Mr Thomas does have some contact with his grandchildren and because he appears to be very committed to this, I would not anticipate that the connections would be broken. Rather, they would be reduced.
Do Grandparents play an important role in their Grandchildren’s lives? If so, how so?
32. The COVID-19 pandemic has resulted in an increase of research studies on the role of grandparents in the lives of grandchildren. For example, Cantillion et al. (2021) concluded that grandparents make concrete contributions to social, economic, and affective wellbeing through the provision of financial, practical, and emotional support. Earlier studies found that maternal grandparents in particular are highly involved in the lives of their grandchildren and that for many people, multigenerational bonds are more important than nuclear family ties for wellbeing and support over the course of their lives (e.g. Barnet et al., 2010).
Is it likely Mr Thomas will play a parental role, in some capacity, in his grandchildren’s lives?
35. Mr Thomas is an active and extraverted man who enjoys spending time with his family. In the past he has assisted with day-to-day childcare and has joined Sophie and her family on holidays. He has also taken the children on outings. Given this, I would expect that he would continue with these nurturing and supportive activities if he is allowed to return to visiting Australia.
Is electronic communication an adequate means to facilitate the close family ties between Mr Thomas and his young Australian family?
36. No. There are many studies that attest to the inadequacy of maintaining close family ties by electronic means alone. Whilst electronic communications can go some way towards keeping the family link alive, the loss of contextual knowledge that in-person contact allows is particularly important to children. This is a major limitation in the usefulness of child-adult digital contact (e.g. Iyer et al., 2020). Children have difficulty in staying engaged when they get bored, will walk off screen, and struggle with interactions based on conversation alone (e.g. Ames et al., 2010). Further, touch is central in building relationships with children (Baeza et al., 2019).
Do you believe Mr Thomas presents a “streak of recklessness”? Please explain as this is taken out of context of the bulk of what the Constable Hicks said as being positive about Thomas.
40. Mr Thomas is an extraverted character and he has engaged in dangerous sports, i.e. competitive dinghy racing and long distance sailing, in his younger days. His viewing of illicit material on the dark web is consistent with thrill seeking and potentially dangerous behaviour. It should be noted that engaging in these types of activities sharply declines as age increases.
Conclusions
42. As a result of the application of the CPORT and the clinical interview I conducted with Mr Thomas, I am of the view that he does not present a risk of reoffending. He seems to be genuinely remorseful and continues to be pained by both his offending and its continued impact on his family. Mr Thomas is planning to partially retire in 2023 and he is physically active and has good social functioning. I am of the view that if he were allowed to visit Australia, the wellbeing of his family would be positively benefitted.[53]
[53] A8/6-8.
Dr Sheridan gave evidence at the hearing (by video). Dr Sheridan’s evidence at the hearing was that she had administered the CPORT and the PAI-Plus tools.[54] Her evidence was that Mr Thomas had scored zero on the CPORT, primarily because the CPORT is structured to assess the risk of reoffending in offenders aged 35 and younger. A score of zero translates to a 2.4 per cent risk of reoffending.[55]
[54] Transcript at 37
[55] Transcript at 41.
As noted above, Dr Whitty, consultant psychiatrist, provided a report dated 6 October 2015.[56] That report is referred to by both Dr Sheridan and Ms Brook-Tanker in their reports. Dr Whitty’s report made the following observations:
·Mr Thomas feels ashamed of what he has done and often wonders why he acted in such a way. He reported that he looked at the images, on average, once a week.
·Mr Thomas has some psychological distress as a result of his recent contact with police and has a form of adjustment disorder. Dr Whitty did “not have any significant concerns about risk to self or others”.
·There was no need for psychiatric or psychological intervention at that stage.
·He assessed “All current risks low”.[57]
[56] A5/619.
[57] A5/619-621.
The other report to which mention has already been made, was the Pre-Sentence Report dated 21 March 2017 which assessed Mr Thomas “as a low risk of further sexual offending” and “as presenting a low risk of further general offending”.[58]
[58] A5/626.
Based on Mr Thomas’ evidence, both in his statements and at the hearing, I accept that he is very remorseful for his conduct which gave rise to the convictions. I also accept that that conduct was out of character. He has sought appropriate treatment and programs and I accept that, as he said in his statutory declaration dated 25 January 2023 at para 55,[59] he is “committed to maintaining my rehabilitation on an ongoing basis rehabilitative and not engaging in any future re -offending or offending”.
[59] A5.
Based on the above evidence, in particular on the expert reports of Dr Sheridan, Ms Brook-Tanker, Dr Whitty and the Pre-Sentence Report, I assess the risk of Mr Thomas offending as he has in the past as extremely low. While the harm that could be caused if Mr Thomas were to engage in the criminal conduct that he did in the past is potentially significant, the risk of his engaging in that conduct in the time that he would be in Australia on a temporary visa is so low that the risk is acceptable. This consideration weighs against the grant of the visa, however, given the limited period for which the visa is sought and the extremely low risk of Mr Thomas offending as he has in the past, only minor weight should be given to this first primary consideration of the protection of the Australian community.
Second primary consideration: Family violence committed by the non-citizen (para 8.2)
The parties treated this primary consideration as not being relevant (see Minister’s SFIC para 29 and Applicant’s reply para 232). I agree that it is not relevant.
Third primary consideration: The strength nature and duration of ties to Australia (para 8.3)
Paragraph 8.3 of Direction 99 provides:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) The length of time the non-citizen has resided in the Australian community, noting that:
(i) Considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
(ii) more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii) less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant’s SFIC addressed this consideration as an “other consideration” under Direction 90, which it was at the time of the Applicant’s SFIC. She did, however, address this consideration as primary consideration in her reply. For this reason, in setting out the parties’ respective submissions, I have amalgamated the Applicant’s submissions in relation to this consideration in the Applicant’s SFIC and the Applicant’s reply. The Applicant’s position is as follows
(a)The delegate devalued the impact on Mr Thomas’ Australian family.[60]
(b)Mr Thomas has strong ties to the Australian community in which he has 20 family members that are Australian citizens who reside in Australia. Twelve of these family members are under the age of 18 years.
(c)Mr Thomas regularly travelled to Australia and has previously travelled to this country approximately 14 times to visit his daughter and Australian family. Mr Thomas has a close and loving relationship with his daughter, the Applicant.
(d)The Applicant has three children to whom Mr Thomas is the grandfather. Each of her children have had a close and special bond with Mr Thomas since they were born.
(e)Mr Thomas’ grandchildren miss him and want him to be able to visit them. It is not economically viable for the Applicant to take the children to the United Kingdom to visit Mr Thomas.
[60] Note: the hearing before the Tribunal is a hearing de novo. The role of the Tribunal is to “do over again what the original decision-maker did, working out, as a further step in administration, what it considers the decision ought to be” per Hill J in Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511 at 521. Accordingly, a critique of the basis on which the original decision-maker made their decision is not directly relevant to the task that the Tribunal is to undertake; see also Plaintiff M1 v Minister for Home Affairs [2022] HCA 17 and Shiv Migration Agents Registration Authority [2007] FCAFC 59 at [35]-[36] per Downes J.
The Minister’s submissions on this consideration were to the following effect:
(a)The Minister accepts it is open for the Tribunal to find a refusal decision would likely impact Mr Thomas’ immediate family in Australia, whom the Minister identifies as the Applicant, Mr Thomas’ sister-in-law (Ms Yates) Mr Thomas’ brother-in-law (Dr Yates) and Mr Thomas’ for adult nephews and the Applicant’s minor children, although the impact on those minor children, Mr Thomas’ grandchildren should “be brought to account in the Tribunal’s assessment of the fourth primary consideration and there is no need to ‘double count’”
(b)This consideration does not outweigh the primary considerations namely, the protection and expectations of the Australian community which weigh heavily against granting the visa.
The statements of Mr Thomas, Ms Broom, Ms Yates,[61] and their evidence at the hearing, establish that Mr Thomas has significant family links to Australian citizens and that a decision not to grant Mr Thomas a visa would have a significant impact on those family members. I also note Dr Sheridan’s evidence as to the role likely to be played by Mr Thomas in his grandchildren’s lives (see [74] above). Obviously, a decision to exercise the discretion not to grant the visa would deny those grandchildren the benefits identified by Dr Sheridan.
[61] A5/683-864.
There is little evidence of Mr Thomas having links to Australia other than through his family.
I am satisfied that a decision not to grant Mr Thomas a visa would have significant impact on his immediate family members in Australia. Accordingly, this third primary consideration weighs, in my assessment moderately, in favour of not exercising the discretion to refuse to grant the visa. The reason that I have given this consideration only moderate weight notwithstanding my assessment that a refusal would be significantly impact Mr Thomas’ immediate family, is that the impact would largely be emotional. Apart from, potentially, the cost of Mr Thomas’ family members, including grandchildren, having to fly to the United Kingdom to visit Mr Thomas, there was no evidence of any financial impact that a refusal of the visa would have on family members in Australia.
Fourth Primary Consideration: Best interests of minor children in Australia affected by the decision (para 8.4)
Paragraph 8.4 of Direction 99 provides:
(1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant refers to Mr Thomas as having 12 family members in Australia who are under 18 years of age (as at 28 April 2022).[62]
[62] Applicant’s SFIC para 17.
The Minister’s SFIC refers to the Applicant as having identified her three children and nine great nephews and nieces of Mr Thomas as being relevant to this consideration.[63] The Minister contended that this consideration has “limited weight” because the relationship is non-parental and there is no suggestion that the people fulfilling the parental roles are ineffective. The Minister contended that this consideration does not outweigh the other primary considerations which weigh heavily in favour of refusing the visa.
[63] Minister’s SFIC para 29.
The Applicant in her statutory declaration dated 6 July 2022 stated that it would be in the best interests of her three children aged eight, six and five to have face-to-face contact with their grandfather, Mr Thomas.[64] She said that while her children currently communicate with Mr Thomas through FaceTime each week for about 20-30 minutes each, the children find it difficult to concentrate on a small phone screen for longer than a few minutes and that the nine-hour time difference makes it difficult to organise times for the contacts. She fears that unless Mr Thomas is allowed to visit Australia, her children will lose their strong family ties with their grandfather.
[64] Family tree A5/187.
I am satisfied that it would be in the best interests of Mr Thomas’ grandchildren and great nephews and nieces if he were to be allowed to visit Australia. I again note the evidence of Dr Sheridan as to the role that grandparents play in children’s lives. It is the case, however, that others fulfill the parenting roles and that the children can maintain contact with Mr Thomas through other means, albeit not particularly satisfactorily. There is no evidence that Mr Thomas’ conduct has had, or that any future conduct might have, a negative impact on the children.
Taking the above factors into account, my assessment is that this consideration, best interests of minor children in Australia, weighs moderately in favour of Mr Thomas being granted a visa.
Fifth primary consideration: Expectations of the Australian community (para 8.5)
Paragraph 8.5 of Direction 99 relevantly provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
…
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
The Applicant’s SFIC referred to Musumeci and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[65] and the statement of the Tribunal in that decision at [350] that;
The fact that a non-citizen has broken the law does not lead inexorably to the result that the mandatory visa cancellation will be upheld.
and to the statement of “their Honours” (actually Senior Member D. J. Morris) at [155] of STZS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs that:[66]
…while the expectations of the community are “deemed” to weigh against an applicant (a position accepted by the parties in this matter), the relative weight will be affected by circumstances in the individual case.
[65] [2022] AATA 2885.
[66] [2022] AATA 1255.
The Applicant then submitted that the following factors were properly to be taken into account when assessing the weight to be given to this consideration which, by operation of the “norm”, weighs against the grant of the visa:
·Mr Thomas’ remorse.
·Mr Thomas’ rehabilitation and the fact that he participated in courses and attended additional sessions which he requested and self-funded.
·Mr Thomas’ deep and loving relationship with each of his Australian family members.
·The fact that Mr Thomas presents no character concerns.
·Mr Thomas is assessed by independent and authoritative individuals as being a low-risk reoffender.[67]
[67] Transcript at 6-7, 65.
The Minister contended that, following FYBR v Minister for Home Affairs[68] this consideration weighs against the grant of the visa and the only task of the Tribunal is to determine the weight to be given to the consideration.
The Minister, citing principle 5.2 of Direction 99 (see [37] above), contended that nature of Mr Thomas’ conduct and the harm that could be caused if the conduct were to be repeated is so serious (having regard to the types of conduct in paragraph 8.5(2) in particular 8.5(2)(c) – commission of serious crimes being crimes of a sexual nature against children) that even strong countervailing considerations are insufficient to justify granting the visa even if Mr Thomas does not pose a measurable risk of causing physical harm to the Australian community.[69]
[69] Transcript at 69.
In reply, the Applicant submitted that the crimes of which Mr Thomas was convicted were offences involving a child but were not offences “against a child”. The Applicant’s reply also referred to a number of cases and Tribunal decisions. I note, however, that these decisions related to different legislation, different legal contexts and were not made in the context of a specific direction such as that in para 8.5(1) of Direction 99 that “the Australian community as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia”.
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated in para 8.5, without independently assessing the community’s expectations in the particular case.[70] The principles set out in para 5.2 of Direction 99 as set out in [37] above, are also relevant to this consideration.
[70] Ministerial Direction 99 at [8.5(4)].
In FYBR the Full Court of the Federal Court of Australia considered the operation of the corresponding provisions in Ministerial Direction No 65 (Direction 65), a predecessor to Direction 90 and Direction 99: see [34] above. The relevant provisions of Direction 99 contain generally similar wording to the corresponding provisions in Direction 65. Some provisions, in particular that dealing with the expectations of the Australian community (para 8.5(1)) were expanded by Direction 90 and subsequently incorporated into Direction 99.
In Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[71] I summarised the effect of the Full Court’s judgment in FYBR, as follows:
The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a ‘kind of deeming provision’ – expressing “an expectation deemed by the government to be held by the Australian community” (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]-[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Rehman). See also decisions of the Hon. John Pascoe AC CVO, Deputy President in Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [77]-[78].
[71] [2020] AATA 3953) at [156].
Justice Stewart in FYBR found at [89]-[91]:
It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.
However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.
(Emphasis omitted.)
In FYBR Justice Charlesworth observed at [75] and [79]:
Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
...
...The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do. Read as a whole, the reasons of the primary judge should not be understood as suggesting otherwise.
(Emphasis omitted.)
That “narrow view” found by Perry J at first instance in FYBR v Minister for Home Affairs,[72] approved by the Full Court in FYBR, is reflected in the amendments to the then ministerial direction which resulted in para 8.4(1) of Direction 90 subsequently caried over into para 8.5(1) of Direction 99. Due to the application of the “norm”, as it is now referred to in para 8.5(1), and the deeming operation of the corresponding Direction as found by the Full Court in FYBR, this primary consideration weighs against the grant of the visa.
[72] [2019] FCA 500.
The operation of this provision was considered by the Full Court in Minister for Immigration, Citizenship and Multicultural Affairs v HSRN.[73] While the Full Court in HSRN was considering Direction 90, the wording of the corresponding provisions in Direction 99 is the same. Relevantly, the Full Court found at [40] and [44]:
It is to be observed that s 499(2A) of the Act, as mentioned, provides that a person or body “must” comply with a direction given under s 499(1) – reference is expressly made to that requirement in para 5.1(4) of Direction No. 90. Also, the Direction provides that the decision-maker “must”, amongst other things, consider the expectations of the Australian Government as expressed in the Direction (para 5.2(4), 5.2(5) and 6 read with 8.4(4)), and that expression of the expectations applies as a “norm” (para 8.4(1)). In that context, “should” in para 8.4(4) is indicative of a requirement that must be followed; it is mandatory. That is because it would be inconsistent to read, for example, para 6 as being mandatory because of its use of the word “must”, with the result that the relevant consideration must be taken into account, but reading para 8.4(4) as merely offering guidance thereby permitting the decision-maker to arrive at its own view or assessment of what the expectations of the Australian community are. It is to be noted that one of the meanings of “should” is to convey duty or obligation rather than merely guidance: Oxford English Dictionary online version, “shall” (meaning no. 18.a). Reading “should” as indicating only guidance would also be inconsistent with what was held in FYBR, and the acceptance by the Court in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6] that a failure to comply with the relevant Direction’s express requirements as to the conditions to be brought into account and the manner in which those considerations were to be weighed in deciding whether to revoke a visa cancellation would be jurisdictional.
...
Leaving aside whether the Tribunal can permissibly have independent regard to community expectations as assessed by it, which must be considered at least doubtful given the Direction’s express provisions with regard to that subject which can be expected to cover the field, the submission fails on the facts. That is because the Tribunal did not take account of its own assessment of community expectations “outside the prism of para 8.4(4)”. On the contrary, it made its own assessment of community expectations expressly within the context of its consideration of para 8.4.
[73] [2023] FCAFC 68.
The application of the “norm” in para 8.5(1) of Direction 99 means that this primary consideration weighs against the grant of the visa. I must, however, determine the weight that should be given to this consideration. Some guidance in this regard is provided by para 8.5(2) of Direction 99, which provides that the Australian community expects that the Australian Government can, and should, refuse entry to non-citizens if they raise serious character concerns through conduct, in Australia or elsewhere, of the kind listed is sub-paras 8.5(2)(a)–(f) of Direction 99. Mr Thomas’ conduct which gave rise to his convictions for making indecent images of children was of the kind of conduct referred to in para 8.5(2) of Direction 99.
I have trouble accepting the Applicant’s overly literal contention that Mr Thomas’ offences “involved children” but were not “against children”, and therefore did not come within para 8.5(2)(c) of Direction 99. Given the Full Court’s observations in Craig quoted at [61] above and that Court’s acceptance of the direct link between viewing images of child abuse and the commission of the child abuse, the proposition that Mr Thomas’ offences did not involve crimes against children is questionable. In any event, as is made clear in para 8.5(2) of Direction 99, the conduct listed in subparas (a) to (f) are examples of conduct of a “kind”. Clearly the offences committed by Mr Thomas are, as a minimum, of the same kind as the offences listed in subpara (c).
While the nature of Mr Thomas’ offending is such that, absent countervailing circumstances, the Australian community would have a high expectation that he not be granted a visa, the extremely low risk of Mr Thomas reoffending and his close links to his Australian family, including his minor grandchildren, cause me to give this consideration only minor weight.
OTHER CONSIDERATIONS
Paragraph 9 of Direction 99 sets out the “Other considerations” to be taken into account as follows:
(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) Legal consequence of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests
Both parties contended that none of the other considerations had application in this case.[74] I agree.
[74] Minister’s SFIC para 51 and Applicant’s reply para 320.
THE WEIGHING EXERCISE
Direction 99 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 99 sets out the way in which the relevant considerations are to be taken into account (see [39] above).
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 earlier Ministerial Directions issued under s 499 of the Act, the same considerations apply to the exercise required by Direction 99 which is materially in the same terms to those earlier Ministerial Directions. I am guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection[75] and the Full Court judgment in Minister for Home Affairs v HSKJ[76]see also XRGY and Minister for Immigration, Citizenship, and Multicultural Affairs[77] at [182]-[183] for analysis of those cases.
[75] [2018] FCA 594.
[76] [2018] FCAFC 217; [2018] FCAFC 217; (2018) 266 FCR 591.
[77] [2023] AATA 755.
Most recently the Full Court of the Federal Court considered the operation of Direction 90 (relevantly materially the same as Direction 99) in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs.[78] That case dealt with how Direction 90 was to be applied in determining whether there was “another reason”, for the purposes of s 501CA(4)(b)(ii) of the Act, to revoke the cancellation of a visa under s 501(3A). Section 501(1) is in more general terms than the specific requirement of s 501CA(4)(b)(ii) for the decision-maker to be “satisfied” that there is “another reason” to revoke the original decision. Accordingly, the application of some of the observations and principles identified in CRNL as to how the decision-maker is to undertake the task under s 501CA(4)(b)(ii), guided and bound by Direction 99, are not immediately obvious in the context of a refusal to grant a visa under s 501(1).
[78] [2023] FCAFC 138.
For instance, at [35] the Full Court described the process as follows:
The balancing process is directed to determining whether there is “another reason” why the visa cancellation should be revoked. It requires an identification of the matters that may constitute “another reason” and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute “another reason” capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.
In criticising the Tribunal’s reasons, the Full Court at [38] found:
…They do not disclose that there was any process by which the Tribunal grappled with the competing considerations, each of which had been ascribed a different descriptor of weight and some of which had the status of being “primary” considerations and others not, in order to bring them to bear in forming a state of satisfaction as to whether there was “another reason” to revoke the cancellation. The statutory task is not fulfilled by ascribing a descriptor of weight, such as “strong”, “significant”, “considerable” or “moderate” (in favour of or against revocation) to the different considerations, primary and other, and then stating a conclusion as if that conclusion was made inevitable by the application of a mathematical formula.
And at [43]:
… the Tribunal recognised in paragraph [113] that it was required to weigh “all the Considerations” (emphasis added), and because it had expressly gone through the process of considering each of the “other considerations in turn”, as explained above, it cannot be concluded that the Tribunal failed to consider the “other considerations”. However, there is nothing in the concluding section of the Tribunal’s reasons, or indeed anywhere, which reveals any process of balancing and evaluation… Nor is there anything which demonstrates that in reaching its ultimate conclusion, the Tribunal brought to bear its assessment of the weight of the various “other considerations”. After summarising, and rephrasing, its earlier ascription of descriptors of weight to each of the primary considerations, the Tribunal then simply concluded in paragraphs [114] and [115] by use of the words “therefore” and “consequently” that the visa cancellation should not be revoked. Such a conclusion does not inevitably or necessarily follow from those unexplained, un-balanced and un-weighed descriptors of weight; it may be that such a conclusion is justified by what preceded it but it is not apparent that the Tribunal undertook the required process of evaluation in order to reach its decision. It is not even apparent that the Tribunal considered that the weight of all the primary considerations were compelling against revocation of the cancellation of the visa, since it placed “significant weight” on one of those considerations, the interests of minor children, as favouring revocation.
And at [44]:
…What it did, on the face of its reasons, is ascribe weight to the various considerations having considered each in isolation and then express a conclusion without demonstrating that it actually weighed the various considerations against each other and undertook a proper evaluation of whether there was indeed “another reason” why the cancellation should be revoked.
What I understand the Full Court to be saying is that giving a weight to each consideration by ascribing a particular quantitative or qualitative adjective and then stating a conclusion without explaining how the conclusion flows from or arises out of a described process of assessing the weight of each consideration against each other consideration, is not discharging the statutory function. Applying those principles to the case of the exercise of the discretion under s 501(1) not to grant a visa, as distinct from being “satisfied … that there is another reason why the original decision should be revoked” (s 501CA(4)(b)(ii)), I take the Full Court to be directing the decision-maker to give appropriate weight to each relevant consideration, explain why such weight is given to the consideration and then, through a described, logical process, compare and balance all of the considerations to determine whether the discretion under s 501(1) not to grant the visa should be exercised.
Following the above-described process, I have ascribed a weight to each of the relevant considerations under Direction 99 and explained the basis upon which I have assessed the weight to be given to each consideration [79]Following that process, I now compare and balance all of the considerations to determine whether the discretion under s 501(1) not to grant the visa should be exercised.
[79] First primary consideration at [79]; second primary consideration, not relevant; third primary consideration at [86]; fourth primary consideration at [91]-[92] and fifth primary consideration at [108].
It is often the case that the first primary consideration, the protection of the Australian community, is the predominant consideration. The protection of the Australian community is at the core of the principle set out in para 5.2(6) and obviously plays an important part in the considerations prescribed by paras 8.1, 8.1.2(1) and 8.5(1) and (2). In the present case, however, I have assessed Mr Thomas as an extremely low risk of offending, mindful also that Mr Thomas will only be in Australia for a limited period, and have, accordingly assigned only minor weight to that consideration. For similar reasons I assessed that only minor weight should be allocated to the expectations of the Australia community which, by operation of the norm, weighs against the grant of the visa. The considerations of strength, nature and duration of ties to Australia and the best interests of minor children in Australia, particularly Mr Thomas’ grandchildren, both of which in my assessment weigh moderately in favour of granting the visa, outweigh the considerations against the grant of the visa to Mr Thomas.
For the reasons set out above, I am satisfied that in the case of Mr Thomas, the discretion to refuse to grant the visa under s 501(1) of the Act should not be exercised.
DECISION
The decision of the delegate of the Minister dated 11 June 2022 to refuse to grant Brian Hedley Thomas an SC 600 Visitor visa is set aside and substituted with a decision not to refuse the grant of the visa under s 501(1) of the Act.
I certify that the preceding 120 (one hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of
.......................Sgd........................
Associate
Date of hearing: 7 March 2023
Solicitor for the Applicant: Mr. J. de Vere Tyndall, Tyndall & Co.Solicitor for the Respondent: Ms D. Jones-Bolla, Sparke Helmore
- AGLC
- Broom and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2769
- Case
- [2023] AATA 2769
- Decision Date
CaseChat Overview and Summary
The legal issues before the Tribunal were twofold: firstly, whether Mr Thomas satisfied the character test, and secondly, if he did not, whether the discretion to refuse the visa under section 501(1) of the Act should be exercised. This second issue required the Tribunal to consider Direction 99, which provides guidance on the primary and other considerations for decision-makers when assessing whether to refuse a visa on character grounds, including the protection of the Australian community and the risk of further offending.
Deputy President Boyle reasoned that while Mr Thomas did not pass the character test due to convictions for offences related to child sexual material, the exercise of discretion under section 501(1) required a comprehensive weighing of factors. Applying Direction 99, the Tribunal considered the nature and seriousness of Mr Thomas's conduct, noting that his convictions were his only criminal record and did not involve a custodial sentence. Crucially, the Tribunal found that Mr Thomas presented an extremely low risk of offending and had significant links to the Australian community, having visited the country on numerous occasions over many years without incident. The Tribunal applied the principles from *CRNL v Minister for Immigration, Citizenship and Multicultural Affairs*, concluding that the discretion to refuse the visa should not be exercised.
The Tribunal set aside the delegate's decision to refuse the visa and substituted it with a decision not to refuse the grant of the visa under section 501(1) of the Act.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Having found that Mr Thomas does not pass the character test, the issue for determination is whether the discretion not to grant him a visa should be exercised. Paragraphs 8 and 9 of Direction 99 identify the primary considerations and other considerations to which a decision-maker is to have regard in determining whether to exercise the discretion not to grant the visa (see [40] and [41] above)First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1) Paragraph 8.1 of Direction 99 provides that, when decision-makers are considering the protection of the Australian community, they:(1) ... 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.(2) Decision-makers should also give consideration to:a) the nature and seriousness of the non-citizen's conduct to date; andb) 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) Paragraph 8.1.1 of Direction 99 relevantly provides:(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…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….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;(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;…h) where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.The parties’ contentionsThe Applicant The Applicant’s SFIC made the following submissions identifiable as relevant to the seriousness of Mr Thomas’ offending:(a)The Applicant accepts that offences of a sexual nature involving a child are serious.(b)The offences of which Mr Thomas has been convicted are his only criminal convictions either in Australia or elsewhere.(c)Mr Thomas was never charged, accused or convicted of “creating” in relation to the “production” of images (i.e. capturing video or still images). The charges faced were in relation to the wider interpretation of the term “making”, i.e. as a result of downloading images from a website onto a computer.(d)Mr Thomas did not receive a custodial sentence.[12][12] A5/347-348 at paras [3]-[4], [6].