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

Byron and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 2906 (9 September 2022)
Division:GENERAL DIVISION
File Number: 2022/5390
Re:Thomas Byron
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Deputy President Britten-Jones
Date:9 September 2022
Place:Melbourne

The decision of the Tribunal is to set aside the decision of the Minister’s delegate dated 7 June 2022 to cancel the applicant’s Five Year Resident Return (Class BB) (Subclass 155) visa under s 501(2) of the Migration Act 1958 (Cth).

......................[SGD]..................................................
Deputy President Britten-Jones
Catchwords
MIGRATION – cancellation of applicant’s visa on character grounds under s 501(2) of the Migration Act 1958 (Cth) – applicant came to Australia with his family when 8 years old - applicant committed murder in 1986 and was sentenced to life imprisonment – applicant has been in the community for 10 years having been released from prison on parole – applicant does not pass the character test - whether discretion to cancel the visa should be exercised – primary considerations – no measurable risk of reoffending – other considerations – links to the Australian community are very strong – decision under review set aside.
Legislation
Migration Act 1958 (Cth)
Cases
Assistant Minister for Immigration and Border ProtectionvSplendido [2019] FCAFC 132.
FYBR v Minister for Home Affairs (2019) 272 FCR 454; [2019] FCAFC 185.
Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559.
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395; [2014] FCA 303.
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673.
Secondary Materials
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)
REASONS FOR DECISION
Deputy President Britten-Jones
9 September 2022

The applicant, Mr Byron, emigrated from England as a child with his parents and four siblings in 1969. They settled in Sydney. He left school at the age of 14 to work with his brother. Later he moved to Adelaide to be with his parents. In August 1986, he and his brother committed a most horrendous and brutal murder of a young woman in her home. He pleaded guilty in the Supreme Court of South Australia and was sentenced to life imprisonment with a non-parole period of 36 years. He was released from prison on parole on 5 September 2012 after serving 25 years and 10 months. He was a model prisoner. Since his release from prison 10 years ago, he has participated actively in the community.
More will be said about the crime and his subsequent conduct but ultimately the question for the Tribunal is whether he should be entitled to remain in Australia or be returned to his country of origin which he left when 8 years old. His desire to stay in Australia is supported by those with whom he has been associated including the victim’s brother with whom he has met and reconciled. The evidence of his behaviour in prison for 25 years and in the community for the last 10 years is very positive. I believe that he has rehabilitated himself in the 36 years since the horrific crime was committed and that the decision cancelling his visa should be set aside so that he can return to the community.
The applicant seeks review of a decision of the Minister’s delegate dated 7 June 2022 (the cancellation decision) to cancel his Five Year Resident Return (Class BB) (Subclass 155) visa (visa) under s 501(2) of the Migration Act 1958 (Cth).[1] The Tribunal has the power pursuant to s 500(1)(b) to review the decision of the delegate of the Minister. The Tribunal may affirm or set aside the decision under review.
[1] All references to legislation are to the Migration Act 1958 (Cth).
On 15 June 2019, Mr Byron was given notice regarding a possible cancellation of his visa. He responded on 22 June 2019 and 23 July 2019. The delegate of the Minister considered those responses but decided to cancel the visa. Mr Byron was taken from the community and placed into detention on 22 June 2022. He applied for a review of the cancellation decision on 30 June 2022. The hearing in the Tribunal was heard by video on 24, 25 and 26 August 2022.
The LEGISLATIVE SCHEME
Section 501 deals with the refusal or cancellation of a visa on character grounds. Relevantly, it provides:
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
…
Character test
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7));
…
Substantial criminal record
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
The applicant has a substantial criminal record as defined in s 501(7) because he was sentenced to imprisonment for life and therefore he does not pass the character test. The issue for the Tribunal is whether to exercise the discretion to cancel the visa, guided by the considerations set out in Direction 90.[2] Section 499(2A) mandates that the Tribunal must comply with Direction 90.
[2] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021).
Direction 90
The purpose of Direction 90 is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA.
The relevant principles that the Tribunal must apply to the task of deciding whether to cancel a non-citizen’s visa are set out in paragraph 5.2 of Direction 90 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 measurable 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. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
In making a decision under s 501(2), the following are primary considerations:
(i)protection of the Australian community from criminal or other serious conduct;
(ii)whether the conduct engaged in constituted family violence;
(iii)the best interests of minor children in Australia;
(iv)expectations of the Australian community.
In making a decision under s 501(2), other considerations must also be taken into account, where relevant, including (but not limited to):
(i)international non-refoulement obligations;
(ii)extent of impediments if removed;
(iii)impact on victims;
(iv)links to the Australian community, including:
a)strength, nature and duration of ties to Australia;
b)impact on Australian business interests
In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[3]
CONSIDERATION
[3] Direction 90 at 7.
Protection of the Australian community – 8.1 of Direction 90
When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering 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. I 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.
The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 90
The applicant was convicted of assault occasioning actual bodily harm on 18 September 1985 and murder on 24 April 1987.
From about the age of 16, Mr Byron began drinking heavily and smoking marijuana and experimenting with drugs including LSD and speed. This continued up to and included the period when he committed his serious offences in 1985 and 1986.
The assault was committed in 1985 against a man who Mr Byron was told had killed a friend’s pet wallabies. It was a violent attack carried out by Mr Byron in the presence of co-offenders. Mr Byron admitted repeatedly punching and kicking the victim and said that he wanted to hurt the victim because of what happened to the wallabies. The victim received a broken nose and bruising to the face. He was convicted and given a four-month term of imprisonment suspended with 12 months’ probation.
My Byron pleaded guilty in the Supreme Court of South Australia to the murder of a young woman in her home on the night of 9 August 1986. The circumstances of the murder were described by the Judge, who said when sentencing both Mr Byron and his brother, Stephen:
Your victim was previously known to you and you had been to her house before. You were also aware that she worked for Bertram Sach, real estate agents and property managers whose premises were about 500 metres away from her house but on Norwood Parade.
Late in the evening of 9 August you drove together in Stephen Byron’s car to the house at 5 Gray Street, Norwood. The deceased was found the next day immersed in the bath of her bathroom. Before she had been so immersed it is clear that she had been brutally assaulted by you both.
Your respective counsel have asked me to take into account that you are both now full of remorse. I do take into account, in favour of you Thomas Byron, that you pleaded guilty at an early stage, and that you Stephen Byron at a much later stage admit your involvement. However, each of you has given conflicting accounts at different times about your respective involvement and even now I am not satisfied precisely who did what and when.
When your counsel made submissions to me some weeks ago you Thomas Byron admitted you were there but you sought to put much of the blame on your brother. Yesterday, Mr Caldicott told me and I quote his actual words, “the idea was Thomas’ idea which was formulated whilst they were in town, and that Thomas was the initiator and leader at all material times during the course of the events on the night.” You, Stephen Byron, only admit to hitting the girl with the brick, to ransacking her house and helping to carry her body to the bath.
The deceased had two puncture wounds in the left of her chest. The pathologist, Dr Manock, thought these were caused by something like a skewer, but they were painful injuries and that they were sustained during her life. She had 16 puncture like stab wounds in her left eye separately caused by a single pointed instrument. Dr Manock also thought that they were sustained during life and were painful injuries. She also had marks in the cleft of her chin and around her neck which were caused by the cord of the telephone which was missing from the house when the police arrived. She had a very serious injury in the middle of her forehead, caused by something very sharp, and just to the right of that she had 12 small stab wounds also caused by a sharp object. She had an injury to the inner aspect of the left lower lip caused by a blow from a fist or some such other blunt object. Finally, she had a stab wound in her back.
The house was found ransacked. You stole a three-in-one stereo system, a radio cassette player and your victim’s handbag in which you apparently found her key to the premises of Bertram and Sach. Later you went to those premises. When the key was inserted in the rear door the burglar alarm was activated and you left.
I have no doubt that the whole dreadful enterprise was a joint one. I am prepared to accept that it was Thomas Byron’s idea that you Thomas Byron caused more of the deceased injuries, but you Stephen Byron hit her with the brick and aided and abetted what your brother did.
One of the terrible features of the case is the fact that the deceased was plainly tortured before her death, no doubt with a view to obtaining information about Bertram Sach’s premises and what money was there. I do not think it is necessary for me to find precisely the roles each of you played in that torture but you must both have been involved. It was indeed a cold-blooded murder for financial gain and it is one of the most serious cases in respect of which this court has been asked to fix a non-parole period.
As far as your prospects for rehabilitation are concerned, your comparative youth and your comparatively good records suggest some hope, but on the other hand the dreadful crime you have committed could only have been perpetrated by persons of very bad character indeed.
…
For Thomas Byron, I fix a non-parole period of 36 years which will commence from the date of his arrest, namely 6 November 1986.
It is also relevant to consider certain passages from the judgment of the Court of Appeal. White J said:
A complaint common to both appeals was that his Honour should not have found beyond reasonable doubt that the appellants were involved in the torture of a conscious victim prior to her murder. …
…
Both appellants changed their stories radically from time to time and any later self-serving explanations of the course of events in the house are naturally suspect. Originally Thomas Byron blamed his brother for the major role although he did, at an early stage, confess his own involvement in the murder, an involvement sufficient to warrant conviction, life imprisonment and a substantial non-parole period. He did this voluntarily, stating that he was now a “born-again” Christian. His conversion did not prevent him from lying about his own leading role or blaming his brother as the ring leader. He was prepared to admit a self-serving version of the truth. In later court hearings, Thomas Byron gradually revealed his true role, but only during final submissions (after Stephen’s conviction and appeal) did he reveal that the whole idea was his own and that he was initiator and leader at all material times in inflicting the wounds and stabbing the young woman to death.
…
The topic of Thomas Byron’s lack of frankness is relevant on another aspect of his sentencing. What he now says or instructs his counsel to say must be taken with a large grain of salt. He wished the police and the court to believe for a long time that he was not the ring-leader. Now he wants the court to accept as a possibility that the victim was not conscious when he stabbed her face and neck repeatedly and that this might have been when he lost control. He wants this court to accept as possible his claim that Stephen at his direction struck her head with a brick early during the events at the flat and rendered her completely unconscious. These self-serving claims are not credible; they emanate from the mouth of a self-confessed liar; medical indications are to the contrary; and the claims fly in the face of common sense.
Bollen J said:
Thomas pleaded guilty. … But in truth here the plea of guilty merited but the slightest recognition. There is nothing to suggest remorse or contrition. True it is that Thomas speaks of embracing Christianity. But still he has not been led by remorse and contrition to make a full and candid acknowledgement of what happened on the night of the murder. Nor has he expressed contrition and remorse to anyone. He pleaded guilty at the first opportunity. But that opportunity arose some months after the murder.… The torture and killing of the deceased were callous, brutal and slow. That conduct was the product of wicked minds, depraved minds. There is no error in assigning this murder and the murderers to the worst category.
It is apparent from the sentencing remarks and the reasons of the Court of Appeal that this was a most brutal murder that involved acts of torture prior to the death of the victim. It was an extremely violent crime committed against a young unsuspecting woman in her home. Crimes of a violent nature against women are viewed very seriously by the Australian Government and the Australian community. It is a crime of the most serious nature. In addition to the murder there was the assault occasioning actual bodily harm which on its own was a serious and violent crime. Together they represent crimes of the most serious nature.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 90
In considering the need to protect the Australian community from harm, I 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. I also have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i)information and evidence on the risk of the non citizen re-offending; and
ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[4] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
[4] (2014) 225 FCR 424; [2014] FCA 673.
Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 90
If the applicant were to engage in further similar criminal offending, then the nature of the harm would be the most serious because Mr Byron tortured and murdered a young woman.
Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 90
The applicant contends that he is no longer a risk to the Australian community because he has rehabilitated himself and dedicated his life to good deeds since the beginning of his term of imprisonment and during the 10 years that he has spent in the community after his release from prison.
The respondent does not challenge the applicant’s record both in and out of prison except in submitting that Mr Byron’s failure to accept that he tortured his victim indicates that his remorse is not complete or genuine. Further, the respondent contends that the criminal conduct of Mr Byron was so serious that any risk of reoffending is unacceptable.
When assessing the likelihood of further criminal conduct it is appropriate to consider past criminal conduct in order to make a prediction about the future. Guidance in this regard was provided by the High Court in Minister for Immigration & Ethnic Affairs v Guo,[5] (Guo) where Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ observed as follows:
The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability — high or low — of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.
[5] [1997] HCA 22; (1997) 191 CLR 559 at 574–575.
In Assistant Minister for Immigration and Border ProtectionvSplendido,[6] Mortimer J said:
[77] The bare recitation of what a person has done in the past, if used as a basis for a positive finding about what she or he may do in the future, is a reasoning process which is rejected by the judicial process in relation to fact-finding about legal responsibility for past events. More than the bare recitation of the past offending is required, and what is required for such evidence to be considered is strictly controlled by reference to the nature and circumstances of the offending, …
[78] The nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending.
[6] [2019] FCAFC 132.
Murder is one of the most serious crimes committed which is reflected in the life sentence imposed on Mr Byron. It follows that the tolerable level of risk of reoffending is extremely low. To adopt the language of the High in Court in Guo, I consider that, in order to find in favour of Mr Byron, the probability that similar reoffending will occur would have to be so low that, for practical purposes, it can be safely disregarded.
To make a positive finding about what Mr Byron may do in the future, I am required to do more than merely rely on his past criminal conduct. I am required to consider the nature and circumstances of the offending as well as a range of other factors about the present circumstances of Mr Byron which may bear on a risk of whether past offending conduct might or might not be repeated. Further, in order to properly assess the risk, I need to consider the conduct of Mr Byron since he offended up to the present. This is an unusual case because the criminal conduct occurred 36 years ago and Mr Byron has had the opportunity to prove his character by being in the community for over 10 years.
The nature and circumstances of the offending conduct are set out above in the remarks of the sentencing Judge and the Judges on the Court of Appeal. I will not repeat them here. I turn now to consider the conduct of Mr Byron after his offending and make the following findings based on uncontentious evidence from him and those who have observed his behaviour both in prison and in the community since offending.
Conduct in Prison for 25 years
The first seven years of Mr Byron’s prison life was spent in a maximum-security prison in Yatala. He started to read the bible and later organised bible study classes for other inmates. He refused to be part of the drug culture that existed in prison. He learnt practical skills by attending available programs involving metal work, joinery, carpentry and making shoes. He joined a team that did carpentry repair work in the grounds of the prison. He learnt other life skills such as cooking and cleaning. He said that he learnt to submit to authority and that he had a good relationship with the prison officers which sometimes put him at odds with other prisoners.
Mr Byron was then transferred to Mobilong Prison where he spent the next five and a half years. This is a medium security prison. He continued his maintenance work and his bible studies. He formed a good relationship with the prison chaplain and commencing studying for a Certificate IV in Christian Ministry which he eventually obtained on 3 June 2009. He worked in the garden and was given the responsibility of ploughing the perimeter grounds on a tractor which he enjoyed. He completed a one-week course about cultural awareness and how to relate to people which enabled him to become a ‘peer supporter’ who supported fellow prisoners if they were being bullied or had other problems. He was employed on a full-time basis in 1994 and 1995 in a variety of tasks. Mr Brenton Whitehead first met Mr Byron when he was the Co-ordinator of the Education Centre at Mobilong Prison. He provided a written reference on 9 February 2007 in which he said that at all times he found Mr Byron to be reliable, trustworthy, very competent and keen to assist others.
In 1998, his security rating was reviewed and the Parole Board approved his transfer to a low security prison farm in Cadell from January 1999. He lived in a self-contained home with three roommates with whom he shared domestic duties. He worked on the farm carrying out various tasks including milking cows, tending citrus trees, ploughing fields, bailing hay and lucerne. He conducted church services in his own chapel. He became qualified as a Workplace Trainer and worked in the library at the Cadell Training Centre where his efforts and work were highly valued.
He was given permission to exit the prison premises for numerous purposes including conducting deliveries and carrying out duties for the Country Fire Service (CFS). He joined the CFS in February 1999 and was awarded a certificate of appreciation for outstanding commitment, dedication and loyalty over a period up to September 2011. Mr Byron enjoyed working with the CFS. He progressed through levels 1, 2 and 3 firefighting services and did a two-day breathing apparatus course in the Adelaide Hills. He got a driver’s licence and then a truck licence which allowed him to drive the CFS fire truck. He became a senior firefighter and a group training officer for the region. He fought numerous fires and responded to car and other accidents.
Conduct in the Community for 10 years
In late 2011, Mr Byron was transferred to Northfield in Adelaide pending his release from prison. In these final months he applied for and obtained a job with a joinery company as an assembler, making doors and window frames.
Mr Byron was released from prison on parole on 5 September 2012. He remained with the joinery company carrying out more significant responsibilities for the next seven years until he was made redundant in 2019. His employer was aware of his past and provided to the Tribunal a very positive reference about him. He has known Mr Byron for almost 20 years, first as an employee and then as a friend. He described him as very bright, incredibly honest, hard working and generous.
Shortly after being made redundant, Mr Byron obtained employment with Tip Top as a delivery driver where he worked until his visa was cancelled and he was taken into detention. His work colleague provided a written reference saying that he had been a hard working, respected and loyal team member of Tip Top for three years.
Mr Greg Bissett, an in-prison volunteer for 15 years, gave written and oral evidence to the Tribunal. He met Mr Byron when he was in Cadell. Mr Bissett saw Mr Byron make the transition from prison life back into the community which he said that he handled amazingly well with no setbacks because he surrounded himself with good people and strong church and family connections. He considered that “Tom would be the most successful reintegration into society I have been involved with.”
Mr David Stanford, a retired employee of Offenders Aid & Rehabilitation Services SA, gave written and oral evidence to the Tribunal. He has 28 years’ experience working in the criminal justice system including in programs with the Court Administration Authority SA and providing reports on the personal progress and efficacy of various rehabilitative programs for clients. He visited Mr Byron whilst he was in prison at Yatala, Mobilong and Cadell. He has kept in contact with him since his release from prison. Based on his experience with offenders and ex-offenders he provided his opinion that Mr Byron does not pose a threat to society in any way. He said:
Mr Byron has spent the last 40 years in demonstrating a genuine remorse for his past actions, building a positive character, showing his desire to help others change and helping others to live a better life. Mr Tom Byron is a man of integrity and high morals and is an asset to our Australian community.
Mr Campbell Matthewson is the brother of the woman who was murdered by Mr Byron. He gave written and oral evidence to the Tribunal. His evidence was very powerful. In his letter of 19 August 2022, he said:
I am the brother of Treacy Matthewson, the young woman who was brutally killed by brothers Thomas Byron and Stephen Byron just over 36 years ago on August 9^th, 1986.
I am aware that the Department cancelled Thomas Byron’s permanent residence visa earlier this year.
I write in support of Thomas Byron’s application to have the decision overturned.
Many years ago, through mutual connections, I had the opportunity to meet Thomas Byron and whilst the meeting of one of the men who killed my sister was a very difficult moment, I saw a repentant man, I saw a man who was sorry for his actions, a man who had engaged the rehabilitative system and I was happy to be part of the restoration process in this matter.
I saw Thomas Byron a number of times whilst he was held in prison at both Mobilong prison and also Cadell Training Centre.
I found the process healing for myself and whilst I do not speak for others, I believe it was an important step in rehabilitating the man who killed my sister.
I also wrote a letter of support, helping in the process of having Thomas Byron released in 2012 on parole.
I have also since seen him a number of times since his release on parole.
…
I do not receive any joy to hear of the Minister’s decision to cancel Thomas Byron’s visa and I personally do not feel any safer for the decision.
I do not believe Treacy’s memory is honoured by the decision.
I ask the relevant persons who have the powers to overturn the decision of the delegate of the Minister in exercising the decision to cancel Thomas Byron’s visa.
Mr Matthewson added in oral testimony that at their first meeting in about 1997 Mr Byron had apologised and acknowledged responsibility for what he had done. Later on, he and his wife had shared a few meals with Mr Byron. He said that if Mr Byron was deported that he would feel let down by the justice system. Under cross-examination Mr Matthewson said that Mr Byron had told him that he did not torture his sister. Mr Matthewson said that that did not matter to him because it did not change anything. Whether she was tortured and murdered or just murdered did not matter because his sister was not here.
Mr Byron married his wife in 2014 and they live together in the house that they purchased north of Adelaide. She is an Australian citizen who was born in the Philippines. She is aware of his offending. They share a Christian faith and participate in the church and local community. She has two older children from a previous marriage – they love him and he loves them. She is a disability support worker but she relies on him to organise most of the domestic affairs such as paying the bills, doing the banking, doing handyman work around the house, looking after their dogs and organising holidays. He has used his skills as a carpenter to renovate their home which they purchased together in 2020. She is desperate for Mr Byron to stay in Australia with her but if he were deported, she would go with him to England. She would find that very hard because of her age and because she has already had to set up a new life when she came to Australia from her home country of the Philippines. She professed a very strong love for him and said that he is an honest, kind and loving person who has never caused her any harm. They have travelled together twice to the Philippines for the purpose of helping the poor in that country. They fed the homeless in Manila and distributed clothing. They have also travelled interstate to visit his relatives. The Parole Board granted him permission to travel.
Helen Glanville is the Chief Executive of Second Chances SA. She provided a written reference in support of Mr Byron who she and her late husband have known for over 20 years. They visited Mr Byron in Mobilong and Cadell and saw the good work he was doing by leading the prison chapel services. After his release from prison, they kept in contact and have seen the work that he does in the community. She said that Mr Byron “has proven he is a changed man and is giving back to the community and to poorer communities in the Philippines through his wife’s outreach and connections.”
Through his work with the church, Mr Byron has provided significant support to the less privileged in society. Mr Scott Sharrock, a retired pastor at Mr Byron’s church, gave written and oral evidence to the Tribunal attesting to his good character and providing examples of his ‘outreach’ including handing out food to the homeless, helping those with mental illness or drug addictions and organising community events such as outdoor concerts or films. Mr Byron gave evidence that he wanted to give back to the community and to help others. He feels that he may be able to inspire others to change their ways by providing his own example.
Mr Byron has spoken at numerous public events to tell the story of how he has changed his life. He does this so as to give a sense of hope to those who have committed crimes or who otherwise feel marginalised by society.
The Tribunal heard evidence from Philip Salt who is a good family friend of Mr and Mrs Byron. Mr Salt is married with six children under the age of 18. These children regard Mr Byron as an uncle and refer to him as Uncle Tom. Mr Salt said that Mr Byron and his wife have opened up their house to their family and the wider church community and the Filipino community. He said they are very generous friends and hosts who would be missed if they had to leave Australia.
The niece of Mr Byron gave written and oral evidence to the Tribunal in support of her uncle. She lives in New South Wales with her husband and their 6-year-old daughter. Most of Mr Byron’s family live in New South Wales and Queensland. She said that her uncle Tom was an inspiring person who had made an amazing life outside of prison. Mr Byron and his wife had visited her when she had post-natal depression and they helped her get through that. She said that her grandmother (Mr Byron’s mother) had a stroke last year while on holiday in Queensland and that she has remained there. The grandmother was in hospital at the time of this hearing. Mr and Mrs Byron had previously helped look after the grandmother when she was in Adelaide.
Respondent’s contention of lack of remorse
Counsel for the respondent contends that Mr Byron has not shown genuine remorse because he does not admit to all of the facts set out in the sentencing remarks. In particular the respondent contends that Mr Byron has lied about the offending being drug induced or that he had ‘spun out’ and that he has lied about not committing torture. The respondent says that these are false denials which indicate that his repentance is not honest.
The issue of torture was raised on the appeal as to the severity of the sentence in the Supreme Court of South Australia by Mr Byron who argued that the sentencing judge erred in sentencing him on the basis that he tortured the victim prior to the murder. Mr Byron was given the opportunity to give evidence during the sentencing process, but he did not. The Court of Appeal found that the allegations of torture were proved beyond reasonable doubt and that the trial judge was perfectly correct in sentencing on the basis that torture had preceded death. The Court of Appeal also found that Mr Byron had not been fully frank because he had changed his story. Bollen J found that, whilst Mr Byron had pleaded guilty at the first opportunity, he had never made a full and frank confession.
I take into account that, contrary to the findings of the Court in South Australia, Mr Byron maintains to this day that the offending was drug induced, that he ‘spun out’ and that he did not torture his victim. However, Mr Byron has expressed remorse for his victim’s death and accepts responsibility for her death. Mr Byron accepted under cross examination that he inflicted all the knife and other wounds which are set out in great detail in the sentencing Judge’s remarks. He did not deny that conduct. His reference to being on drugs was to provide context. He did not seek to minimise his conduct by blaming his use of drugs. He has expressed genuine remorse for his conduct and accepts responsibility for it. What he does not accept is that that conduct should be characterised as torture. He knows what he did was wrong and he pleaded guilty to the charge put against him at the earliest opportunity. I do not consider that he was denying the torture so as to achieve a more favourable outcome in these proceedings. It is not a false denial. I found him to be an honest and credible witness and I was impressed with his evidence.

His agreement to meet with the victim’s brother and his apology to him is evidence of genuine remorse. It was a display of his acceptance of wrongdoing, and it showed that he understood the impact of his actions on the victim and her family. Mr Byron displayed great courage and compassion to meet with the victim’s brother. The brother appreciated the gesture and says that it was a turning point in his own life. There is no doubt that the brother considers that Mr Byron’s remorse is genuine.
There is further evidence that his remorse is genuine and that he is fully rehabilitated because he has never reoffended and has made a conscious and successful effort to live a good life dedicated to helping others. Direction 90 requires me to take into account evidence on the risk of reoffending and evidence of rehabilitation. Genuine remorse is often considered as a pre-condition to a finding of rehabilitation but it is interesting to note that Direction 90 does not refer to evidence of remorse or contrition but rather requires the decision-maker to take into account the evidence of rehabilitation achieved by the time of the decision. In this case, I have found that Mr Byron has shown by his conduct that he is fully rehabilitated. The evidence in favour of Mr Byron in this regard is his conduct towards others since the time of the offending 36 years ago. It is on the basis of that evidence that I have found below that there is no measurable risk of him reoffending.
I reject the respondent’s contention that Mr Byron has not shown genuine remorse. I consider that his genuine remorse has been displayed by both his words and his deeds over a very long period of time.
Conclusion as to protection of the Australian community – 8.1 of Direction 90
The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[7] Mr Byron committed offences that are so serious that even a low risk of re-offending would not be acceptable. In this case, the probability of him reoffending is so low that, for practical purposes, it can be safely disregarded. There is no measurable risk of him reoffending. He was a model prisoner who I consider showed himself by his conduct to be fully rehabilitated before leaving prison. The evidence of his rehabilitation is his good conduct for the 36 years since he last offended. My finding that Mr Byron is fully rehabilitated is supported by the evidence from the authoritative and independent sources[8] of Helen Glanville from Second Chances SA and David Stanford of Offenders Aid & Rehabilitation Services SA. His good character has been tested for 10 years during which he has reintegrated into society by marrying his wife, working diligently and dedicating himself to helping others in the community. I give significant weight to the lengthy period of time spent in the community since his last offence.
[7] Direction 90 at 8.1(1).
[8] Direction 90 at 7(1).
I conclude that the Australian community needs no protection from Mr Byron. Consequently, I give little weight to this consideration.
Family Violence – 8.2 of Direction 90
This is not a relevant factor because the applicant has not engaged in family violence. There is a mistaken reference to family violence in the delegate’s reasons and the respondent accepts that there is no evidence that Mr Byron committed any family violence.
Best interests of minor children – 8.3 of Direction 90
I must determine whether refusal of the visa is, or is not, in the best interests of a child who is affected by the decision. The best interests of each child should be given individual consideration to the extent that their interests may differ. The following factors that I must consider and are relevant to this application include:
(a)the nature and duration of the relationship between the child and the applicant. 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;
(b)the extent to which the applicant is likely to play a positive parental role in the future;
(c)the impact of the applicant’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 applicant would have on the child, taking into account ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child; and
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
Mr Byron did not list any minor children in his personal circumstances form submitted on 22 June 2019. In his Statement of Facts, Issues and Contentions and at the hearing Mr Byron submitted that the six minor children of Mr Salt would be adversely impacted. These children informally adopted Mr Byron as their uncle soon after Christmas 2015 but they are not actually related to him. The relationship is non-parental so I give it less weight. I consider that Mr Byron may play a positive role in the future with them but not in any significant way because they have a mother and a father who already fulfil a parental role. Whilst it can be said that it would be in the best interests of these children for Mr Byron to remain in the community with a visa, I give it minimal weight for the reasons set out above.
The other child who may be impacted by this decision is the daughter of Mr Byron’s niece. Mr Byron’s niece gave evidence that she has a 6-year-old girl but she lives in a different state to Mr Byron and has had very limited meaningful contact with him. The relationship is non-parental and she has parents who already fulfil a parental role. Whilst it can be said that it would be in the best interests of the great-niece for Mr Byron to remain in the community with a visa, I give it minimal weight for the reasons set out above.
The best interests of minor children is a factor that weighs against the cancellation of the visa, but I give it little weight.
Expectations of the Australian community – 8.4 of Direction 90
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.[9]
[9] Direction 90 at 8.4(1).
In addition, visa cancellation may be appropriate simply because the nature of the character concerns is such that the Australian community would expect that the person should not continue to hold a visa.[10]
[10] Direction 90 at 8.4(2).
Paragraph 8.4(4) of Direction 90 provides that, as a decision-maker, I must consider the expectations of the Australian community as a whole and proceed on the basis of the Government’s views expressed therein, without independently assessing the community’s expectations in the particular case. However, in the weighing up exercise by which I evaluate whether to exercise my discretion, it will be necessary to assess the circumstances particular to Mr Byron. In this regard, the following words of Stewart J in FYBR v Minister for Home Affairs[11] remain apposite to the expectations of the Australian community under Direction 90:
[97] … The community thus expects that it will be necessary in every case to assess the circumstances particular to the visa applicant in question in order to reach an evaluative assessment of “appropriateness”. That assessment is not an assessment of what the Australian community expects in the particular case. The Australian community expects people to obey the law, and if they do not (or there is a risk that they will not) then that is relevant to whether or not they will be granted a visa, and in some cases it may be appropriate that they will be refused a visa because of their disobedience (or the risk of their disobedience). Direction 65 does not ascribe to the Australian community a relevant expectation with regard to the outcome in the particular case. That is a matter for the decision-maker.
…
[102] It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be.
[11] (2019) 272 FCR 454; [2019] FCAFC 185.
The seriousness of the offending in this case means that the Australian community, as a norm, expects the Government to cancel the visa and to not allow Mr Byron to remain in Australia. I take into account that Mr Byron’s offending was a serious crime against a woman and that consequently, pursuant to paragraph 8.4(3) of Direction 90, the expectations of the Australian community apply regardless of whether Mr Byron poses a measurable risk of causing physical harm to the Australian community. Nevertheless, I only attach slight weight to this consideration because of the particular circumstances of Mr Byron’s character as established by his conduct in the 36 years since he offended. This is a factor that weighs in favour of cancellation of the visa but not decisively so as will be evident from the weighing up exercise at the conclusion of these reasons.
Other considerations
In deciding whether to cancel the applicant’s visa, I must also take into account the other considerations listed in Direction 90, but these are not exhaustive.[12]
International non-refoulement obligations – 9.1 of Direction 90
[12] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.
This is not a relevant factor.
Extent of impediments if removed to home country – 9.2 of Direction 90
Direction 90 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to his home country in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The applicant’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to him in that country.
The applicant is 60 years old and, whilst not a young man, he is in relatively good health. He has never returned to England since he arrived in Australia as an 8-year-old in 1969. However, I do not consider that there would be any substantial cultural or language barriers if he did return. There would be a difficult period of adjustment upon return because he would not have a network of friends or family to assist him in establishing himself but the difficult period would be short lived. Mr Byron has shown great resilience in his life and he would have the benefit of his faith to get him through any difficulties. I consider the extent of the impediments facing Mr Byron if removed from Australia to England would be minimal. This is a factor that weighs against the cancellation of the visa but I only give it little weight in the circumstances.
Impact on victims – 9.3 of Direction 90
The victim’s brother gave evidence that he would feel let down by the justice system should the Tribunal decide to cancel the Applicant’s visa. Accordingly, this is a factor that weighs against cancellation of the visa but I give it little weight.
Links to the Australian community – 9.4 of Direction 90
I must consider the impact of a visa cancellation on the applicant’s immediate family members which in this case comprises his wife, his mother and various siblings. Whilst his mother gave no evidence because she is in hospital in Queensland, I am prepared to accept that she would be devastated if her son was removed, against his and his wife’s wishes, to England. His wife would also be devastated by any decision to affirm the cancellation of the visa. She gave evidence to that effect which I accept. Even though she would accompany her husband to England, the impact of an unfavourable decision on her would be adverse because she does not want to leave her house, children and friends in Australia. I am prepared to infer that his siblings would be adversely impacted but I give little weight to this impact because they did not give any evidence and they live away from Mr Byron.
I must consider the strength, nature and duration of any ties the applicant has to the Australian community. Mr Byron has spent 52 years in Australia having arrived as an 8-year-old. This represents the whole of his adult life. Mr Byron has established the strongest of ties to the Australian community by marrying an Australian citizen, working diligently since being released from prison and by participating in his church and assisting those less fortunate than himself. He has also built up a good network of friends in the community. I give strong weight to the last 10 years spent by Mr Byron contributing in such a positive manner to the Australian community. Mr Byron is an inspiration to others who may feel that they are beyond redemption because of their past conduct. He has worked tirelessly in the service of others and any debt owed to the Australian community has been repaid. He has even achieved a positive relationship with the brother of the woman that he murdered all those years ago. That brother gave evidence that his life had turned favourably around since he met Mr Byron with whom he now has a special bond.
The links that Mr Byron has to the Australian community are very strong and this is a factor that weighs very heavily against cancellation of the visa.
Conclusion as to whether to exercise the discretion to cancel the visa
I have considered the specific circumstances relating to Mr Byron as part of my consideration. I am now required to determine whether to exercise my discretion to cancel the visa.
Mr Byron has shown by his conduct over the last 36 years that he poses no measurable risk to the Australian community. Consequently, I give little weight to the protection of the Australian community because the probability of him reoffending is so low that it can be safely disregarded.
The expectations of the Australian community is a factor that weighs in favour of cancellation of the visa because the Australian community, as a norm, expects that a person who has committed such serious crimes, in particular against a woman, would not be allowed to remain in Australia. However, for the last 10 years whilst in the community Mr Byron has upheld the expectation that he obey Australian laws and I have no doubt that he will continue to do so. Whilst able to in prison and in the period since his release, he has significantly exceeded this expectation by acting in an exemplary manner whilst being employed full-time and serving others less fortunate in the community. In the circumstances of his positive conduct in prison and subsequently in the community, I give this factor little weight.
I take into account that primary considerations should generally be given greater weight than the other considerations, but in this particular case I consider that they should be given little weight and that they are outweighed by the other countervailing factors.
The most significant countervailing factor is the links to the Australian community which weighs heavily against cancellation of the visa. The other countervailing factors to which I give less weight are the best interests of minor children and the extent of impediments if removed.
Mr Byron has established very strong links to the Australian community. Even before being released from prison, Mr Byron was contributing positively to the Australian community by actively participating in the Cadell Country Fire Service and by helping other prisoners. He continued that positive contribution once released from prison by engaging in the ‘outreach’ service of his church which was dedicated to helping those less fortunate persons in society. He showed real courage and compassion by addressing numerous public forums to tell his story and was a great inspiration to others who were trying to turn their life around. He is a loving husband and he has together with his wife established a warm and welcoming home environment for the benefit of their friends and the wider regional and Filipino community. Ever since leaving prison he has been gainfully employed and has earnt the respect of his employers and work colleagues.
The victim’s brother asked that I overturn the cancellation decision and I intend to do so. The correct and preferable decision is to set aside the cancellation decision which will allow Mr Byron to remain in Australia. I have no doubt that he will continue to serve the community well and that he will not reoffend.
DECISION
The decision of the Tribunal is to set aside the reviewable decision.

I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

......................[SGD]..................................................
Associate
Dated: 9 September 2022

Date(s) of hearing: 24, 25 and 26 August 2022

Advocate for the Applicant: P. Do

Solicitors for the Applicant: Doconade Australia

Advocate for the Respondent: S. Cummings

Solicitors for the Respondent: Sparke Helmore

[2022] AATA 2906

9 September 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Date(s) of hearing:	24, 25 and 26 August 2022
Advocate for the Applicant:	P. Do
Solicitors for the Applicant:	Doconade Australia
Advocate for the Respondent:	S. Cummings
Solicitors for the Respondent:	Sparke Helmore