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

[2024] AATA 334

CHCY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 334 (5 March 2024)

Division:GENERAL DIVISION

File Number:          2023/9364

Re:CHCY

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Ms A E Burke AO, Member

Date:5 March 2024  

Place:Melbourne

Pursuant to section 43(1)(c)(i) of the AAT Act, the Tribunal sets aside the reviewable decision. In substitution, the Tribunal finds there is another reason under section 501CA(4)(b)(ii) of the Migration Act 1958 to revoke the mandatory cancellation of CHCY’s visa.

…........................[sgd].............................................

Ms A E Burke AO, Member

Catchwords

MIGRATION – applicant is a citizen of New Zealand – applicant held a Class TY Subclass 444 Special Category (Temporary) visa – visa mandatorily cancelled under Migration Act – substantial criminal record – delegate of Minister decided not to revoke mandatory cancellation – serious offence – consideration of the Ministerial Direction 99 – primary considerations – protection of the Australian community – nature and seriousness of the conduct – conduct found to be very serious – risk to the Australian community – best interests of minor children in Australia – special consideration – expectations of the Australian community – extent of impediments if applicant removed to New Zealand – links to the Australian community – negligible risk of reoffending found – decision under review set aside and new decision substituted that there is another reason for visa not be revoked.

Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)

Cases
Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311
FYBR v Minister for Home Affairs [2019] FCAFC 185
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
LZGG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 107
Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Taufahema v Minister for Immigration and Citizenship [2010] FCA 328

Secondary Materials
Migration Act 1958 – direction under s 499 – Direction No. 99 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 3 March 2023)

REASONS FOR DECISION

Ms A E Burke AO, Member

5 March 2024

1. On 17 March 2023 a delegate of the Minister, administering the Migration Act 1958 (Cth) (the Minister), cancelled CHCY’s Class TY Subclass 444 Special Category (Temporary) Visa under section 501(3A) of the Migration Act 1958 (Cth) (the Act). On 3 April 2023 CHCY’s legal representatives provided a response to the decision requesting revocation of the decision to cancel his visa for other reasons.

2. On 12 December 2023 a delegate of the Minister made a decision not to revoke the cancellation of CHCY’s visa. The delegate found that:

   CHCY has made representations, in accordance with the invitation given to him under s501CA(3), about revocation of the cancellation decision. I am not satisfied that CHCY passes the character test (as defined by s501). Nor am I satisfied that there is another reason why the cancellation decision should be revoked. Accordingly, the power in s501CA(4) is not enlivened and CHCY‘s Class TY Subclass 444 Special Category (Temporary) visa remains cancelled. My reasons are set out in the attached Statement of Reasons.

3. In particular, the delegate found that CHCY’s offending constituted very serious family violence. The delegate found:

   I have found that the best interests of CHCY’s three minor children, nieces and nephew, as a primary consideration, weigh significantly in favour of revocation of the cancellation of CHCY’s visa.

   I have also found that CHCY’s ties to Australia, as a primary consideration, weigh significantly in favour of revocation, noting his extensive family and social ties, employment history and 19 years of residence.

   In addition, I have found that the impediments CHCY would face if removed to New Zealand also weigh in favour of a decision to revoke.

   However, I have also given significant weight to the very serious nature of the crimes committed by CHCY, which are of a sexual nature and involved a vulnerable member of the community, being a minor child.

   Furthermore, I have considered that non-citizens who have engaged in acts of family violence and the commission of very serious crimes against children raise serious character concerns such that the Australian community would expect they should not continue to hold a visa. I give this primary consideration significant weight as well towards non-revocation of the visa cancellation.

   I am cognisant that where significant harm could be inflicted on the Australian community, any risk of reoffending may be considered unacceptable, even applying a higher tolerance of CHCY’s criminal conduct than I otherwise would because he from a young age (sic).

   On balance, I find that the factors that weigh against revocation of the cancellation decision outweigh the factors in favour of revocation. Therefore, I am not satisfied that there is another reason why the decision to cancel CHCY’s Class TY Subclass 444 Special Category (Temporary) visa should be revoked.

4. On 12 December 2023 CHCY applied to the Administrative Appeals Tribunal (the Tribunal) under section 501 of the Act seeking review of the decision to refuse to revoke the cancellation of his visa, stating:

   I believe that the NCCC has not adequately taken into account the directives contained in Ministerial Direction 99 and ties to the community and the length of time i have spent in Australia. I believe that the impact on my family has not been sufficiently taken into consideration. For example my sons scholarship for civil engineering at RMIT is not transferable. I believe that once the reviewer started looking for reasons other than the character test to make a decision to revoke the order, many significant points in favor of restoring the visa were made but were always negated by the reasons for failing the character test.

5. At the hearing of his application on 20 and 21 February 2024 CHCY was self-represented, and Mr Alexander Zhang, solicitor advocate of Clayton Utz, appeared for the Minister. The Minister lodged a set of paginated G-Documents, summons material from Queensland Corrective Services and CHCY’s clinical records from International Health and Medical Services. CHCY made written and oral submissions.

   BACKGROUND

6. CHCY is a New Zealand citizen who arrived in Australia in 2004 at the age of 16 (with his mother, stepfather and sister) and has continued to reside in Australia. CHCY’s mother and stepfather are both nurses and have both been working in the health sector since their arrival in Australia.

7. CHCY completed his schooling in New Zealand and commenced work in Australia. He first worked in a fast-food outlet where he remained for 12 years rising to the level of store manager working across numerous states. CHCY then obtained his forklift license and moved into warehouse roles. He then obtained over 11 licenses to operate heavy machinery and continued to be employed predominately in the infrastructure of new sub-divisions and large development projects.

8. In 2009 whilst living in Brisbane he met his future wife, who had 2 young children from her first marriage, they married in 2011 and have 3 children together.

9. Mr Peter Jordan, psychologist, in a Psychological Pre-sentence Report dated 22 November 2022 outlined the background to CHCY’s offending:

   CHCY reported that in the months leading up to his offending, he had experienced a number of marked stressors that he now believes affected his mental health.

   The first of these was when his mother was diagnosed with breast cancer. She was told that the prognosis was poor. He became very worried as he had always considered his mother to be a primary source of support to him and to his family. He noted that his mother is continuing with her treatment for breast cancer with radiation. Part of her treatment involved mastectomy of both breasts. He described this as being a very emotionally difficult time for not only his mother, but for him and other members of his family.

   Following this, his stepfather had a number of heart attacks and nearly died. He was extremely worried that he would lose both his mother and his stepfather within a short space of time. He commented on the very close relationship that he enjoys with his stepfather. He said that he found the thought of being without both of his parents to be devastating but he hid his emotions from others.

   Further stressors came about through the suicide of a close friend and mentor, and then the suicide of this man’s wife. He had been working for a man named [redacted] over a six-year period. Part of his responsibilities was to lock up tools after a day’s work. On one occasion, he had to lock away the tools early because he had a commitment. Because he was in a hurry, he left one extension cord outside the shed. He planned to put it away the following day. However, that night, his friend and mentor had gone to the shed and had suicided by hanging himself with the extension cord that he did not put away.

   CHCY reported that despite the reassurances of others, he held himself responsible for his friend and mentor’s suicide. This occurred in October 2020. To make matters worse, while at the funeral, his friend’s wife asked him if he would come the following week and finish the shed that he had been building with his friend. He agreed to do so on the following Saturday. However, CHCY said that because his wife became very ill throughout her pregnancy, he had to ring this man’s wife to explain that he could not come on the Saturday. He then learnt that she also suicided by taking an overdose of pills on the day that he was supposed to be there.

   CHCY said that he felt responsible for both of these people’s deaths.

   A couple of weeks later, his sister advised him that his 14-year-old niece had been diagnosed with leukaemia and had been told that she was going to die. He said that the niece has since had multiple surgeries to do with her cancer.

   CHCY described feeling overwhelmed; in his terms, “completely broken”, by this series of events that occurred in relatively close proximity in the months leading up to his offending.

   He related that his wife had become ill during her pregnancy. On the same day in February 2021 that he committed the offence against his step daughter, they had both been in attendance at the hospital where his wife was confined following the birth of their youngest child. He and his step daughter had been at the hospital each day for four consecutive days for long hours. Prior to them coming home in the evening, his wife suffered a seizure and was convulsing. He described feeling a sense of panic thinking that she could die.

   CHCY confirmed the circumstances surrounding his offending as detailed in the Statement of Facts provided to me. On questioning around his behaviour, he was unable to provide an account of his state of mind at the time that he offended against his stepdaughter. He said that there was no “precognition”, meaning that he had not planned to sexually abuse his step daughter before it occurred. He considered that his offending behaviour was reflective of a complete loss of judgement and totally outside of his normal character. Immediately after he committed the primary offence against his step daughter in February 2021, he had realised that what he was doing was very wrong and he left the room. CHCY said that with the benefit of extensive psychological counselling, he has now come to understand that the stressors that he had been experiencing in the period prior to his offending and on that particular day when he offended, had contributed to deterioration in his mental health and thereby contributed to extremely poor judgement.

   He said with regard to the most serious incidents in February 2021 that he lay down in the bed with his stepdaughter because she wanted him to stay with her and because she had been quite upset by what had happened at the hospital. While he said that the offending was not pre-planned, he stated that, “one thing led to another” but he knew instantly that what he was doing was wrong and “snapped out of it and immediately left”. He stated that he does not believe that he would have been in such a weak state of mind if he had the psychological management tools that he has now developed through psychological counselling. He acknowledged that as a result, he had hurt his stepdaughter, whom he had helped raise since she was a baby.

   He accepted full responsibility for his actions, stating that there was no excuse that he allowed events to unfold as they had. As to his thoughts when he initiated sexual activity with her, he said that his mind had been overcome by negative thoughts and anxiety but was unable to be more specific.

   ISSUES

10. In his Statement of Facts, Issues and Contentions filed on 24 January 2024 CHCY conceded that he did not pass the character test for the purposes of section 501CA(4)(b)(i) of the Act and he confirmed this at the hearing. The Tribunal is satisfied that CHCY does not satisfy the character test under section 501 on account of his substantial criminal record as defined under section 501(7) being sentenced to a term of imprisonment of 12 months or more.

11. Accordingly, the issue for consideration by the Tribunal is whether the cancellation of CHCY’s visa should be revoked, taking into account the relevant considerations in Ministerial Direction No 99 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA. In essence, the Tribunal must be satisfied there is another reason why the original decision should be revoked.

    LEGISLATIVE FRAMEWORK

12. The Tribunal operates under the Administrative Appeals Tribunal Act 1975 (the AAT Act). Section 25 of the AAT Act allows the Tribunal to conduct a review of decisions made under other pieces of Commonwealth legislation, including the original decision made concerning CHCY. Under section 43(1) of the AAT Act, when making a decision, the Tribunal may exercise all of the powers of the original decision-maker. The Tribunal must review the merits of the matter under review and come to the correct or preferable decision.

13. Visa cancellation on character grounds is established in section 501 of the Act. Under section 501(3A)(a)(i) the Minister must cancel a visa if satisfied a person has a substantial criminal record. This requirement is provided for in section 501(6)(a), and a substantial criminal record comprised of a sentence to a term of imprisonment of 12 months or more is provided for in section 501(7)(c).

14. The power to revoke (or reverse) this mandatory cancellation is found in section 501CA of the Act. The mandatory cancellation may be revoked if a person either passes the character test, or the Minister is satisfied that there is another reason why the original decision should be revoked (section 501CA(4)(b)).

15. A Direction has been made under section 499 of the Act that provides guidance a decision-maker must take into account when considering revocation under section 501CA. This document is known as Direction No. 99, issued on 23 January 2023, which came into effect on 3 March 2023 (the Direction). Part 2 of the Direction sets out ‘primary’ and ‘other’ considerations that must be considered, and each one is accompanied by specific factors that inform the making of a decision.

16. Part 1 of the Direction includes a Preamble, that identifies Objectives and Principles. The Principles (5.2) provide the framework for decision making and 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 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 non-citizens 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 cancellation 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) (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.

    EVIDENCE

    CHCY’s Offending

17. The following table has been derived from a national criminal history check relating to CHCY produced by the Australian Criminal Intelligence Commission on 16 February 2023:

18.     COURT DATE	OFFENCE	COURT RESULT
25 Nov 2022	RAPE DOMESTIC VIOLENCE OFFENCE (2 CHGS ON 17/02/2021)	ON ALL CHARGES: CONVICTION RECORDED SENTENCED IMPRISONMENT: 3Y TO BE SUSPENDED FOR: 4Y AFTER SERVING: 8MO ON ALL CHARGES: CONVICTION RECORDED SENTENCED IMPRISONMENT: 18MO TO BE SUSPENDED FOR: 4Y AFTER SERVING: 8MO
25 Nov 2022	INDECENT TREATMENT OF CHILDREN UNDER 16 LINEAL DESCENDENT/GUARDIAN/CARER - DOMESTIC VIOLENCE OFFENCE (2 CHGS ON 17/02/2021)	ON ALL CHARGES: CONVICTION RECORDED SENTENCED IMPRISONMENT: 3Y TO BE SUSPENDED FOR: 4Y AFTER SERVING: 8MO ON ALL CHARGES: CONVICTION RECORDED SENTENCED IMPRISONMENT: 18MO TO BE SUSPENDED FOR: 4Y AFTER SERVING: 8MO
25 Nov 2022	INDECENT TREATMENT OF CHILDREN UNDER 16 LINEAL DESCENDENT/GUARDIAN/CARER DOMESTIC VIOLENCE OFFENCE (7 CHGS ON 17/02/2021, 12/07/2021, BTN 16/04/2021 & 28/06/2021)	ON ALL CHARGES: CONVICTION RECORDED SENTENCED IMPRISONMENT: 9MO TO BE SUSPENDED FOR: 4Y AFTER SERVING: 8MO ALL TERMS OF IMPRISONMENT TO BE SERVED CONCURRENTLY DECLARE THAT TIME SPENT IN PRE-SENTENCE CUSTODY BE DEEMED AS TIME ALREADY SERVED UNDER THIS SENTENCE: 4 DAYS
23 Feb 2022	BREACH OF BAIL CONDITION (BETWEEN 05/09/2021 AND 28/11/2021)	NO CONVICTION RECORDED FINED: $200.00

1. In his sentencing remarks on 25 November 2022 his Honour Judge Kent KC described CHCY’s offending:

   CHCY, you have pleaded guilty to a large number of offences. There are nine counts of indecent treatment of a child under 16 who was under your care at the time and two counts of rape. The complainant was your [redacted] She was [redacted] you were 34 at the time when these happened in early 2021. They seem to have occurred at a time when your wife was in hospital giving birth to your youngest child.

   The complainant was in bed when you approached her. The first incident involved you rubbing her vagina inside her clothes, inserting two fingers into her vagina on two separate but closely related occasions, further rubbing of her vagina, rubbing of her buttocks, kissing of her lips, kissing of her cheek and kissing her buttocks. On a separate, second occasion, you held her buttocks. That is count 9. The third occasion involved you rubbing her stomach and waist area and holding her buttocks, count 10, and again kissing her on the cheek, count 11.

   The offending came to light after the complainant informed people at school, who pursuant to their understandable mandatory reporting obligations took the matter further. Early, shortly after that, you were spoken to about it by your wife and you made, it seems, very frank and prompt admissions to her.

2. In summary, on 25 November 2022 CHCY was sentenced for charges 1 and 4 to 18 months of imprisonment; for charges 2 and 3 he was sentenced to 3 years and for charges 5 to 11, he was sentenced to 9 months of imprisonment. The term of imprisonment for the sentences were to be suspended after he served 8 months and he must not have committed another offence punishable by imprisonment within a period of 4 years to avoid serving the remainder of the suspended term. There was only one victim, being CHCY’s stepdaughter who was 14 when the offences occurred.

3. In an undated Statement of Facts from the Crown v CHCY they described the offending in the following terms:

   One night when [redacted] was in hospital the defendant came into her bedroom in the early hours of the morning. He climbed into her bed, underneath the blanket, and untied the complaint’s shorts while she was lying on her side.

   The defendant put one hand inside the complaints shorts and underwear and began rubbed her vagina (Count 1) before inserted two fingers inside her vagina (Count 2). He removed his fingers and immediately following, inserted them a second time (Count 3). The defendant removed his fingers and rubbed the complaints vagina again, before removing his hand from her pants (Count 4). The defendant used his other hand to rub the complaints buttocks (Count 5) and kissed the complaints on the lips (Count 6) and then her cheek (Count 7). Before moving down and kissed the complaints on the buttocks cheek (Count 8). He then climbed out of the complaints bed and left her room.

   Another occasion occurred during the school holidays. In the early hours of the morning the defendant entered the complaints room.  The defendant climbed into bed beside her and pushed his body up against hers. The defendant and the complaint were both fully clothed. The defendant began rubbed his hand against and the complaint’s stomach and thighs, before moving his hand to and the complaint’s buttocks. He held and the complaint’s buttocks with his hand for a short period of time (Count 9).

   The third and final occasion occurred on the complaint’s first day back at school. At around 6:30am in the morning the defendant entered the complaint’s bedroom, and climbed into her bed, underneath the covers. Both the defendant and the complaint were fully clothed. The defendant rubbed his hand on the complaint’s stomach and waist, before moving his hand to the complaint’s buttocks where he held it for a short period of time (Count 10) He kissed the complaint on the cheek, before climbing  and out of her bed and leaving her bedroom (Count 11).

   PRIMARY CONSIDERATIONS

   Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct (paragraph 8.1)

4. The Direction requires the Tribunal to 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 (8.1(1)). The Tribunal must have particular regard to the principle that remaining in Australia is a privilege given the expectation that non-citizens are law-abiding, respect important institutions and will not cause or threaten harm to individuals or the Australian community.

5. This primary consideration also requires the Tribunal to consider two specific elements: the nature and seriousness of a non-citizen’s conduct to date; and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct (8.1(2)(a)-(b)).

   The nature and seriousness of the conduct (paragraph 8.1.1)

6. CHCY did not contest he had committed serious crimes and accepted that he failed the character test.

7. In his sentencing remarks on 25 November 2022 his Honour Kent KC noted:

   What is said by the learned Crown prosecutor is that these offences represented a gross breach of trust. There was, of course, a [redacted] difference between you. The offending was not isolated. Your remorse is arguably at least somewhat qualified. There was penetration, which is always an aggravating factor and that of course is reflected in the rape counts, which cany a maximum of life imprisonment and Mr Gowrych also refers to the victim impacts. Acknowledging your early plea, he refers to both personal and general deterrents as being important factors in the sentencing process, as is of course the fact that your immigration status means that you will necessarily lose your visa and may well be deported. That is not certain, but the preconditions to your deportation are certain. You will lose your visa.

8. Paragraph 8.1.1(1)(c) requires that the Tribunal must have regard to the sentence imposed by the court for a crime or crimes.

9. In his sentencing remarks on 25 November 2022 his Honour Kent KC noted:

   I am compelled by the Penalties and Sentences Act to have primary regard to a number of factors in the sentencing process. They include the effect of the offences on the child which were significant, the age of the [redacted] she was young, but sadly not nearly as young as many of the other children against whom offences of this kind are committed.

   I take into account the nature of the offences. There was no physical harm or threat thereof, for example. I take into account the need to protect the child and children generally from any risk that you may present. I take into account the need to deter similar behaviour by others in order to protect children.

   …..

   In my conclusion, the sentences should be as follows. For counts 2 and 3, the counts of rape, you are imprisoned for a period of three years. For counts 1 and 4, indecent treatment, you are sentenced to imprisonment for 18 months. For counts 5 to 11 inclusive, you are sentenced to imprisonment for nine months. Those sentences of imprisonment are to be served concurrently, so that your head sentence is three years imprisonment. That period of imprisonment is to be partly suspended after you have served eight months for an operational period of four years. You must not commit another offence punishable by imprisonment within a period of four years if you are to avoid being dealt with for the balance of those terms of imprisonment.

   I have reduced the pre-suspension period from a notional starting point of 12 months by one-third to eight months, taking into account a number of factors, the factors flowing from your immigration status which I have mentioned, your very early admissions and pleas of guilty, your lack of criminal history, your good work history, your impaired decision-making at the time and the problems in your childhood as referred to by Mr Jordan in his report.

10. Paragraph 8.1.1(1)(d) requires the Tribunal to consider the frequency of the offending or whether there is any trend of increasing seriousness.

11. In his sentencing remarks on 25 November 2022 his Honour Kent KC noted:

    You have no criminal history, or you certainly had none at the time when this occurred and for practical purposes in my view you are a first offender. You have pleaded guilty to this at the earliest possible occasion.

    Submissions

12. CHCY submitted that:

    ·He wanted to apologise to all parties involved in dealing with this matter for his actions.

    ·His intention was to show how remorseful he was for his actions and offending, and wished to prove his worth to the Australian community as not simply a human being that made a very serious mistake, but a person that has also learnt many valuable lessons, methods and coping strategies through rehabilitation, therapy and faith to insure that his mindset is now positively stable, and posed no threat to the Australian community and wished for the opportunity to prove his worth and for another chance to do so.

    ·He did not dispute his offending fitted the definition of a substantial criminal record, as defined in the Act but he wished to highlight that he had no other criminal record of any description in Australia or New Zealand.

    ·That the Judge gave him a Partially Suspended Sentence, where he served a total of 7 months and 26 days, on a full-time basis.

    ·He had read the Direction and understood as best he could, that he met the criteria for “Another Reason” for compassion towards having his visa revoked.

    ·He believed he can demonstrate he can be a valued and trustworthy member of the Australia community.

13. The Respondent submitted that CHCY’s offending should be viewed particularly seriously for the following reasons:

    ·Paragraph 8.1.1(a)(i) of the Direction requires sexual crimes to be viewed very seriously. CHCY’s crimes were sexual in nature and he 'does not deny that the offences are categorised as sexual’.

    ·The victim of CHCY’s offending was his stepdaughter, was a minor aged 14 years at the time of the offending, was under his care at the time and she had a close relationship with CHCY having been the only father figure in the victim’s life. These circumstances suggest that the offending constituted a significant breach of trust.

    ·CHCY’s offending occurred on three separate dates against the same victim being 17 February 2021 (2 counts of rape and 4 counts of indecent treatment), a date between 16 April 2021 and 28 June 2021 (1 count of indecent treatment), and 12 July 2021 (2 counts of indecent treatment).

    ·Sentencing remarks described that the 'impact to the victim is substantial and ongoing'. A psychological report provided by the Applicant suggests that the victim 'broke down' at school and made disclosures to her friends and a school guidance counsellor. The victim has ‘cut herself off' from her mother (the Applicant's wife) due to her mother's continued support of the Applicant.

14. The Respondent contended that the very serious nature of CHCY’s offending is reflected in the custodial sentence imposed on him. The Respondent referred the Tribunal to the comments in PNLB and Minister for Immigration and Border Protection [2018] AATA 162, that '[s]entences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved'. The Respondent submitted that the custodial sentence imposed by the Court reflects the objective seriousness of CHCY’s offending.

15. The Respondent acknowledged that CHCY had no prior criminal history and no trend of increasing seriousness. However, the Respondent submitted that CHCY’s offending occurred over three separate incidents and all incidents were of a very serious nature.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)

16. This part of the primary consideration requires the Tribunal to 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’ (8.1.2(1)).

    Submissions

17. CHCY submitted:

    ·He believed that without a doubt that if given the opportunity to prove his worth that he can show through his character that he has respect for Australian law and its enforcement framework.

    ·That prior to his conviction he had no previous criminal record and has no intent to cause any harm or threat of any kind to the Australian community.

    ·The very serious crimes that he committed came to light in July 2021 when he was initially interviewed by the police where he was detained and released after 2 days and again served another 2 days for breach of bail and remained an active member of the Australian community until his sentencing date after 16 months, where he engaged in seeing a therapist, renewed his faith and learnt and acquired the necessary skills and coping strategies through therapy and rehabilitation to ensure that moving forward he could demonstrate that he can be a contributing and upstanding member of the Australian community.

    ·Through psychological therapy he has gained insight, understanding and knowledge of how incorrect his thought process was in the moment of the offending. He has learnt that these beliefs were corrected through successful therapy that began in July 2021 where his therapist taught him that his thought process was very wrong. That he wasn't using sex as a stress relief but a masking of his low self-worth, depression and anxiety that he was suffering from at the time of the offences.

    ·As he was sentenced to a Partially Suspended Sentence which had no requirements for him to complete any sexual offending courses, he had no opportunity to complete such a course whilst in prison as he was not sentenced with any parole conditions to be met before release.

    ·He did not disagree that the harm caused by his offending was serious and if committed again would cause very serious harm but he again wished to make acknowledgement towards his rehabilitation, various coping strategies, family support network, ongoing lifelong therapy, church attendance and prayer groups are all very successful tools in his life that were not present prior to his offending and have helped him to ensure this type of behaviour and mindset are no longer and will never be present in his life again.

    ·He had already demonstrated remorse and rehabilitation as an active member of the community for 16 months whilst on bail, with signing in conditions only once a week which he attended every week without any issue for a total of 64 times.

    ·He would willingly accept any future conditions imposed on him including any signing in with local authorities, ankle monitoring if deemed necessary and being placed on a sex offenders registry to further ensure the levels of safety for the Australian community.

    ·That no amount of stressors can be used as reasons for offending of any nature and apologised for thinking they could be, as therapy has taught him very successfully that having no coping strategies in his life contributed to very poor decision making in that specific time with everything that was happening in a short period of time.

    ·Simply not having an understanding of anxiety and how to deal with negative thoughts prior to the extensive therapy he received led to poor decisions and trying to find excuses for his actions; he now understands there are no excuses for his actions. Through successful therapy and counselling, a renewed faith, multiple coping strategies and tools now available to him, he has overcome depression and anxiety.

    ·He experienced various stressors in the months leading up to the offending, they led to his severe lapse in judgement but do not explain why the offending happened or excuse his horrendous offending. Understanding he was trying from a distance to deal and cope with his mother’s breast cancer diagnosis, his father’s numerous heart attacks, the suicide of his employer/mentor and then the suicide of this man’s wife, his feeling of being responsible for their deaths, his niece being diagnosed with leukaemia and the complications with his wife’s pregnancy was helpful to understand the breakdown in his decision-making at the time.

18. CHCY contended he posed no risk of reoffending. CHCY contended that through successful therapy, he has learned and implemented coping strategies into his everyday life to ensure that he is no risk to the Australian community. That the support of his wife, children, mother, stepfather and extended family, his renewed faith, support network, employment and desire to make amends that he will never reoffend. Indeed, he has already demonstrated that he has proved himself in the community having not been convicted of any further offences in the 16 months he was on bail.

19. The Respondent submitted:

    ·CHCY’s offending resulted in psychological and emotional harm to the victim and her family.

    ·The form of harm, should CHCY engage in further criminal or serious conduct of a similar nature, would be very serious.

    ·CHCY has provided a letter from Mr Ricardo Bird, psychologist, dated 20 October 2022 stating that the Applicant has completed 12 psychological sessions between 15 July 2021 and 16 May 2022 and also a psychological report from Mr Jordan, psychologist, dated 22 November 2022. The Respondent noted that these reports list some protective factors against the CHCY’s reoffending. However, neither explicitly assessed the Applicant's risk of reoffending.

    ·That there is currently not sufficient evidence to suggest that the rehabilitation undertaken by CHCY to date is sufficient to address what appears to be a longstanding issue in using sex as a means of stress relief, which appears to have been identified as a very significant factor leading to the offending. Mr Bird noted that:

    [CHCY] reported a history of sexual abuse at five years of age and then daily masturbation from six years of age for stress relief. [CHCY] stated that he has used sex as a form of stress relief for most of his life - relying on sex with his wife to find that relief.

    [CHCY] reported that during a difficult pregnancy in 2021 his wife was not able to offer sex as a means of stress relief and consequently [CHCY] was unable to relieve his stress. [CHCY] stated that he engaged in sexual activity with his fourteen year old step-daughter to address his stress. [CHCY] believed at the time that the sexual activity was mutually acceptable to both of them. [CHCY] said he knew the sexual activity was wrong but that he "wasn't strong enough”.

    The pre-sentencing psychological report from Mr Jordan also stated:

    There is a likelihood that the belief of having been sexually abused as a child has had an impact upon [CHCY’s] psychosexual development… This serves to illustrate the development of a maladaptive anxiety management strategy; namely, use of sexual activity as a coping mechanism …

    …In [CHCY’s] case, an historical propensity to use sex as a means of coping and the attitudinal factors around consent referred to above would be the most important issues to be addressed to have confidence in rehabilitative success.

    ·Mr Bird described the 12 sessions CHCY attended included cognitive behaviour therapy and self-worth therapy directed towards depression, anxiety, and self-worth, in relation to which CHCY had made good progress. The report also noted that CHCY is ‘of significantly less risk of poor decision making’. CHCY testified to 'coping mechanisms' acquired in these sessions as a protective factor. However, the report does not refer to the nature of any such coping mechanisms taught, nor explicitly indicate whether any intervention was directed towards sexual offending specifically.

    ·In the absence of further details as to the content of Mr Bird's sessions with CHCY, the Tribunal cannot be satisfied that these sessions would be appropriate and sufficient to address his risk of reoffending.

    ·CHCY has claimed that he stopped psychological sessions with Mr Bird because Mr Bird had said there was no need for any further sessions however the Tribunal cannot rely upon this as there was not any material from Mr Bird before the Tribunal to corroborate this claim.

    ·Mr Jordan stated in his later report, dated 22 November 2022, that '[t]o address the identified rehabilitative needs, it is recommended that [CHCY] engage in a medium intensity sexual offender program (MISOP)' and this indicated that Mr Jordan was of the view that CHCY could benefit from further rehabilitation, as at the time of writing the report. CHCY has contended that there was no requirement for him to complete any sexual offending course nor was such a course made available to him whilst in custody. Nevertheless, it appears that Mr Jordan also noted that such courses are also available in the community and/or offered by psychologists.

    ·It was open to CHCY to enquire about and attend similar courses related to sexual offending. However, there is no evidence that this was done. The fact remains, based on the evidence available before the Tribunal, that the medium intensity sexual offender program recommended by Mr Jordan has not been completed.

    ·CHCY breached his bail condition on a date between 5 September 2021 and 28 November 2021 and was fined $200 with no conviction recorded. Bail systems are built upon a level of trust that a person would be on conditional liberty subject to compliance with its conditions. To undermine that trust illustrates a disregard for lawful authority in Australia, casting doubt on CHCY’s ability to comply with the law in the future.

    ·It is concerning that CHCY’s previous submissions appear to somehow seek to justify his breach of the bail conditions where it appears from these accounts that the Applicant made a conscious decision to disregard Australian laws that applied to him.

    ·In CHCY’s response to the Natural Justice Letter sent by the Minister, the representations about revocation of the decision to cancel the visa dated 24 June 2023 prepared by his former legal representative asserted:

    (i)While [CHCY] was able to visit, there was a bail condition that prohibited staying overnight.

    (ii)He breached it not because he opposed the order and did not want to comply.

    (iii)He did not breach bail because of malintent.

    (iv)He breached bail because he loves his children and family.

    CHCY's wife explained in her Statutory Declaration of 23 June 2023:

    Although we all knew that it was a risk to breach bail conditions, the children were suffering so terribly, that we took that risk to try and heal as a family. We needed and wanted to start the healing process as it was too hard for our kids.

    Each one of us would get so upset and just cry and break down when he had to leave at night.

    Any real dad would breach a condition like that for the love and protection of his children.

    He did not breach it because he thought it trivial or unimportant. He breached it because we needed him to.

    ·As CHCY has committed offences against his stepdaughter on more than one occasion this should also weigh on the Tribunal's mind in assessing his risk of reoffending. CHCY reported to Mr Jordan that the February 2021 offending (2 counts of rape and 4 counts of indecent treatment) was not pre-planned and that he 'knew instantly that what he was doing was wrong and "snapped out of it and immediately left". However, despite having come to the realisation that such action was wrong, CHCY committed indecent treatment offences on a date between 16 April 2021 and 28 June 2021 (1 count of indecent treatment) and on 12 July 2021 (2 counts of indecent treatment).

    ·Mr Jordan provided in his report a list of protective factors which reduce CHCY’s risk of reoffending. Most notably is the support of his family and support network. Whilst, the Respondent accepts, this support network could help reduce CHCY’s risk of reoffending, less weight can be given to it in circumstances where he already had this support around the time of his offending and proceeded to offend despite these supports being in place. Additionally, CHCY’s wife’s comments as to his breach of bail conditions should also give rise to concern.

    ·The Tribunal cannot be satisfied that there is currently sufficient evidence before it to suggest that CHCY has satisfactorily addressed his future risk of reoffending, and that there remains at least a moderate-to-low risk that he would reoffend.

1. The Respondent contended that paragraph 8.1.2(1) of the Direction provides that '[s]ome 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'. The Respondent took the Tribunal to the matter of Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 (‘Tanielu’) (at [89] - [104]), where Mortimer J (as her Honour then was) drew upon authorities related to other protective schemes to explain that, to determine an 'unacceptable risk', a decision-maker must evaluate both the potential consequences of further offending and the likelihood that such consequences will manifest.

2. The Respondent contended that any material risk of CHCY reoffending in a similar way presents a risk which the Australian community would find unacceptable. The Respondent contended that CHCY’s offending was very serious, and he has at least a moderate-to-low risk of reoffending.

3. The Respondent contended that there was no supporting evidence to give confidence to the Tribunal that CHCY has under the necessary rehabilitation to not be at risk of reoffending and therefore posed a risk to the safety of the Australian community. The Respondent referred the Tribunal to CHCY’s psychological sessions in detention observing none dealt with the issue of his sexual offending or reported CHCY had sought to undertake a medium intensity sexual offender program. The Respondent contended none of the reports before the Tribunal actually addressed CHCY’s risk of recidivism.

4. The Respondent contends that Primary Consideration 1 weighs very strongly against the revocation of the cancellation of CHCY’s visa.

   Findings

5. In this particular matter the Tribunal had the advantage of being able to assess CHCY’s risk of reoffending and to judge his risk of recidivism. As CHCY rightly pointed out he was in the community for 16 months on bail signing in as required weekly, working full time to support his family, attending psychological sessions and reconnecting with his Christian faith. The Tribunal notes CHCY in that time did not commit any further offences of the nature for which he had been charged, however he did breach his bail for which he was fined but no conviction was recorded.

6. The Tribunal, drawing upon the determination in Taufahema v Minister for Immigration and Citizenship [2010] FCA 328 (‘Taufahema’) at 27 citing Kioa v West (1985) 159 CLR 550, relied upon the evidence available to it of CHCY’s behaviour in the community for 16 months where he was not convicted of any offences:

   In Kioa at 627, Brennan J said that what the principles of natural justice require in particular circumstances depends on the circumstances known to the repository of the power at the time of the exercise, or the further circumstances which, had the repository acted reasonably and fairly, he or she would then have known. In my opinion, the emphasis is upon what the repository of the power knew or would then (that is, at the time he or she exercises the review function) have known.

7. The Tribunal noted prior to these offences CHCY has had no convictions of any kind including no driving-related offences and has not demonstrated any ‘frequency’ of offending nor any trend of increased seriousness.

8. However, by the very nature of CHCY’s offences the Tribunal finds his actions blatantly serious and of greatest concern was the fact that whilst CHCY recognised he had done something highly inappropriate to his stepdaughter on the first encounter on 17 February 2021 he continued to enter her room and inappropriately touch her, with the offending only ending when it was reported by his stepdaughter to her school guidance counsellor.

9. Additionally, CHCY was for all intents and purposes the victim’s father as he had raised her since she was a baby, and she had known no other father having little to no contact with her biological father since her birth. CHCY had parental control over his victim and was there to protect her; his offending was a complete abrogation of his role as a father and a significant breach of trust.  

10. The Tribunal found CHCY’s offending was serious, producing a devastating lifelong impact on his victim.

11. The Tribunal did not consider CHCY’s breach of bail an act of disregard of the Australian legal system but a cry for help from a father and family in crisis. Staying one night with his family did not represent an escalation in his offending, as indicated by no record of conviction against him and being fined $200.

12. There was no evidence before the Tribunal of any untruthful information being provided by CHCY to the Department nor of any previous immigration warning, in writing or otherwise.

13. The Tribunal found CHCY to be a witness of truth who expressed genuine remorse for his abhorrent actions for which he never sought to blame the victim or justify in any way before the Tribunal. CHCY’s repeated evidence was that he fully understood and accepted his actions against his stepdaughter were unforgiveable and abhorrent. CHCY’s evidence was he did not wish to excuse his behaviour because of the extreme stressors in his life but to explain that his thought process had been so clouded by the events and his own low self-worth that he had been able to somehow justify the actions in the moment even though he realised they were wrong.

14. The Tribunal finds the application of weight to Primary Consideration 1 complex as there are many factors involved. The Tribunal finds the first part of the consideration, the nature and seriousness of the offence, weighs heavily against revoking the mandatory cancellation of the visa, as CHCY’s actions are abhorrent and do represent conduct and the harm they would cause, if repeated, as so serious that any risk that it may be repeated may be unacceptable.

15. In terms of the second part of the consideration, the risk of reoffending, the Tribunal finds the risk of CHCY reoffending is low and does not agree with the Respondent that there is inconclusive evidence to arrive at this conclusion. The Tribunal relied upon the following at arriving at this finding:

    In his sentencing remarks on 25 November 2022 his Honour Kent KC noted:

    I take into account your prospects of rehabilitation which, with respect, seem to be quite positive. I take into account generally your antecedents, which I have mentioned, your age and your character and I pause to note that you have a number of supportive character references, and they demonstrate that there is another side to your character. I take into account the contents of the psychological reports that I have mentioned.

    Mr Jordan’s report of 22 November 2022 stated:

    He accepted full responsibility for his actions, stating that there was no excuse that he allowed events to unfold as they had. As to his thoughts when he initiated sexual activity with her, he said that his mind had been overcome by negative thoughts and anxiety but was unable to be more specific.

    CHCY described strong support and acceptance by family members, whom he has shared his offending with and who continue to accept him. None of these people have endorsed his behaviour in any way and have indicated their abhorrence of it. He has also shared information with members of his church, including his church pastor.

    His capacity for relationship stability appears to have been sound over time. He has had a long marriage and it has not been marked by domestic violence or any police involvements. He is in regular contact with his wife. According to CHCY, they intend to try to rebuild their marriage on a Christian foundation.

    His comments did not suggest emotional identification with children or any enmeshment with his wife’s daughter (the complainant), …He said that he had never previously considered his step daughter with any sexual intent and referred to “no precognition” prior to offending. By this, CHCY appeared to be suggesting that there was no pre-planning with respect to what occurred. His account suggested that impulsivity in circumstances when his stress levels were high and his mental health was likely compromised was a predominant feature behind his offending.

    CHCY’s comments were not marked by any attitudes reflecting hostility towards females or misogynistic attitudes.

    He did not believe that any sense of rejection or loneliness played a part in his offending behaviour. He said that throughout his marriage, he and his wife have had a strong relationship. He enjoyed the company of work colleagues. He was not feeling rejected by others.

    He continues to feel well accepted by members of his family and members of his church congregation. He does fear societal rejection in the future if his offending comes to light with those who do not know his background.

    CHCY expressed attitudes during interview, did not reflect a person who lacks empathy or concern towards others. His expressions of remorse and concern for the complainant in the matter appeared genuine. There was nothing in the history (other than the index offences) to suggest that CHCY has displayed a tendency towards behaving in a callous or indifferent manner towards others.

    EVALUATION

    CHCY is a person who reports experiencing sexual abuse as a child. While this may or may not have been the actuality when his mother’s account is considered, CHCY has always believed it to be the case. He reports that the incident with the doctor concerned caused him to experience anxiety, poor concentration and compromised learning throughout his school years. His treating psychologist has noted a lifelong negative impact upon his self-worth. His mother confirms that the incident caused observable changes in his behaviour in terms of fear of doctors and dentists, and reduced enjoyment of school and sport. She observed him to become quieter and withdrawn after the incident. It is worth noting that the incident occurred when he was five or six years old and therefore any impact upon schooling would have been from that period onwards. This makes it difficult to determine what his baseline experience of schooling was in any case.

    There is a likelihood that the belief of having been sexually abused as a child has had an impact upon CHCY’s psychosexual development. This likelihood is reinforced in the comments noted from CHCY’s treating psychologist who notes that “CHCY’s reported a history of sexual abuse at five years of age and then daily masturbation from six years of age for stress relief”. This serves to illustrate the development of a maladaptive anxiety management strategy; namely, use of sexual activity as a coping mechanism.

    CHCY went on as an adult to form a stable relationship with his wife over a long period of time. It appears that his wife, who along with CHCY biological children is living with CHCY’s parents in Victoria, is prepared to maintain the marriage in the future.

    One dynamic factor that is important in predicting risk of reoffending is availability of support and whether the available support is helpful in terms of the prosocial values that are likely to be encouraged by supportive others. If CHCY’s narrative around his family circumstances and the support available to him from that source is accepted, this is a positive prognostic indicator for reduced risk of reoffending. His willingness to be open about his offending with family members and members of his church congregation is a further positive prognostic and protective factor with respect to risk of further offending. CHCY’s mother is able to corroborate that there will be ongoing support available from her and her husband, notwithstanding their abhorrence of the nature of CHCY’s offending.

    It does appear on objective personality assessment that CHCY’s mental health is currently sound and stable. He appears to have benefited from extensive psychological counselling provided by a treating psychologist under a mental health plan, as detailed in the report of Mr Bird.

    From the information that CHCY provided to me with respect to the antecedents to his offending and from the information available from Mr Bird’s report, it would be reasonable to conclude that the culmination of stressors that he was experiencing in the period leading up to his offending resulted in him developing an adjustment disorder marked by clinical levels of anxiety. This likely contributed to reduction in capacity for sound judgement and decision-making at the time that he committed the offences against his stepdaughter. His lack of criminal history and the stability of his marriage over a long period of time, as well as the ongoing acceptance of family members, save for the complainant child, who have knowledge of his offending, would suggest that his offending was out of character for him.

    There was nothing from CHCY’s presentation to suggest to me that his expressions of remorse were disingenuous. His goals for the future appeared appropriate.

    Results on a structured, and normed personality test that is well accepted for use in forensic contexts revealed no concerns regarding his mental health at the current time, apart from some post traumatic anxiety, which may relate to his current legal predicament and the sequelae associated with him being charged. Alternatively or in addition, post traumatic anxiety features may relate to the perceived experience of childhood sexual abuse.

    He takes responsibility for his offending and has done so since being confronted about it. While he did not attribute any blame to the complainant child and rejected the notion that she had contributed to his offending in any way, his comment that during the course of his offending, he interpreted her lack of resistance to his sexual activity as some sort of acceptance or consent, does give rise to concerns regarding his rationalisations at that time. These rationalisations may have been short term.

    In that regard, it is noted from the comments of the treating psychologist that “During treatment CHCY has come to understand that sexual activity with his fourteen year old step-daughter was absolutely wrong and that his actions have caused extensive harm to his fourteen year old step-daughter…”.

    CHCY has been a willing participant in psychological counselling over an extended period. His mental health now appears stable. This is an important factor to consider when it comes to risk of further offending. There is little doubt that his current legal predicament and his level of remorse have had a salutary effect and have therefore reduced risk of reoffending further. However, it is necessary to always be mindful that some repetitive offenders experience a “latency effect” that is marked by remorse and determination not to offend again. The most effective means of reassuring the Court in this regard is to consider the assessment of dynamic factors that has been conducted (STABLE assessment) and ensure that the offender engages in an appropriate rehabilitative process that addresses the full range of risk factors specifically identified, and additional risk factors that apply generally to those who have committed a sexual offence against a child. In CHCY’s case, an historical propensity to use sex as a means of coping and the attitudinal factors around consent referred to above would be the most important issues to be addressed to have confidence in rehabilitative success.

    Mr Bird’s report of 20 October 2022 stated:

    I have seen CHCY twelve [12] times from 15th July 2021 to 16th May 2022.

    On presentation CHCY appeared Depressed, and severely Anxious regarding the prospect of going to jail. I have diagnosed CHCY as suffering from Depression and Anxiety. CHCY is also suffering from long-term poor Self Worth. CHCY’s mental health issues may make him vulnerable to poor decision making.

    CHCY reported a history of sexual abuse at five years of age and then daily masturbation from six years of age for stress relief. CHCY stated that he has used sex as a form of stress relief for most of his life - relying on sex with his wife to find that relief.

    CHCY reported that during a difficult pregnancy in 2021 his wife was not able to offer sex as a means of stress relief and consequently CHCY was unable to relieve his stress. CHCY stated that he engaged in sexual activity with his fourteen year old step-daughter to address his stress. CHCY believed at the time that the sexual activity was mutually acceptable to both of them. CHCY said he knew the sexual activity was wrong but that he "wasn't strong enough".

    CHCY has engaged very well in Cognitive Behavioural Therapy and Self Worth Therapy and has made very good progress regarding the Depression, the Anxiety and Self Worth.

    During treatment CHCY has come to understand that sexual activity with his fourteen year old step-daughter was absolutely wrong and that his actions have caused extensive harm to his fourteen year old step-daughter, his wife, his children and to himself. CHCY has expressed deep regret for his actions and has made a strong commitment to never re-offend.

    I believe that if CHCY continues to practice the psychological skills that he has learned in therapy that he should be able to successfully manage his Depression and Anxiety and that he is of significantly less risk of poor decision making.

16. The Tribunal relied upon the determination in Tanielu in assessing if CHCY presented an 'unacceptable risk', where her Honour stated ‘a decision-maker must evaluate both the potential consequences of further offending and the likelihood that such consequences will manifest’. Based on the evidence before it, the Tribunal found CHCY now has the tools and support around him to ensure he will never reoffend. The Tribunal also considered CHCY’s biggest incentive to never reoffend is the obvious knowledge he would be deported to New Zealand putting at risk his life in Australia and more importantly destroying the very fabric of his supportive family who have shown such faith in him.

17. The Tribunal notes that CHCY’s immediate family in Australia are all aware of his offending, all his family members provided statutory declarations stating their dismay and horror at his offences, but all expressed continued support for him and a desire for him to remain in Australia. CHCY’s parents, wife and eldest son attended the hearing and his mother provided supportive oral evidence. The International Health and Medical Services record of 4 January 2024 notes ‘Gets visit daily from family. Very supportive family’. The Tribunal finds CHCY has strong prosocial factors around him that will provide the support to ensure he is not at risk of reoffending. On release from detention, he will have stable accommodation, an extremely supportive family, coping mechanisms learnt through his therapy and will have stable employment. The Tribunal did not find that CHCY had disregarded Mr Jordan’s recommendation to engage in a medium intensity sexual offender program (MISOP) nor that his failure to do so represented an unacceptable risk to the Australian community. The Tribunal accepted CHCY’s evidence that he had engaged in all therapy available to him, that he was not eligible to undertake the MISOP in prison and that it is not available to him in detention. The Tribunal finds CHCY’s evidence that he will continue to undertake counselling credible, and this again is another factor which provides assurance he is at low risk of reoffending.

18. The Tribunal considered the nature and seriousness of CHCY’s offences, weighs heavily against revoking the mandatory cancellation of the visa. CHCY’s offences are such that this factor must weigh against him.

19. However, whilst the Tribunal finds CHCY’s offending was limited to the one period and sadly the one individual it does not consider that he meets the criteria in the Direction that his actions are such they [are] so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community. The Tribunal finds CHCY is at low risk of reoffending because of the incredible support he has around him.

    Primary Consideration 2: Family violence committed by the non-citizen (paragraph 8.2)

1. The Direction requires the Tribunal to consider whether a non-citizen has been convicted of any offence or had charges proven that involve family violence.

   Submissions

2. CHCY submitted he took full responsibility and apologises for his actions of committing a very serious crime of domestic violence towards a family member that was in his care at the time of the offence.

3. CHCY submitted that he had not used coercion or controlling behaviour, had not used threatening language, been physically violent or threatening but did agree his actions had caused the family member to experience a degree of fear.

4. CHCY contended he had remained an active and contributing member of the Australian community from the day the offence was brought to light and being made aware of by law enforcement up until the day of sentencing. CHCY contended that no reoffending took place, and that through his ongoing commitment towards his rehabilitation and continuous therapy he will ensure he is always of sound mind to be at significantly less risk of any poor decision making into the future.

5. CHCY agreed with the very serious nature of his offending and understood it weighed significantly against revocation.

6. The Respondent submitted:

   ·CHCY’s offending constitutes family violence as per paragraph 4(1)(b) in the Direction as it at least caused his stepdaughter, who was a member of his family, to be fearful. CHCY has accepted that his actions would have caused the family member to experience a degree of fear.

   ·CHCY’s violent conduct was very serious, occurred on three separate dates: 17 February 2021 (2 counts of rape and 4 counts of indecent treatment), a date between 16 April 2021 and 28 June 2021 (1 count of indecent treatment), and 12 July 2021 (2 counts of indecent treatment) against his stepdaughter and that the sentencing remarks described that the 'impact to the victim is substantial and ongoing’.

   ·CHCY’s evidence was he takes 'full responsibility' for his actions and that he has undertaken 12 sessions of psychological counselling with Mr Bird. However, there does not appear to be evidence that the Applicant has undertaken the medium intensity sexual offender program recommended by Mr Jordan and this should put doubt into the Tribunal’s mind.

7. The Respondent contended that Primary Consideration 2 weighs heavily against the revocation of the cancellation of CHCY’s visa.

   Findings

8. The Tribunal finds that CHCY has committed acts of family violence as defined in the Direction. The Tribunal finds CHCY’s action were committed against a child in his care, and this presents as the worst kind of family violence and a complete breach of trust. Whilst there is no evidence that CHCY has ever been physically or verbally abusive to any family members his offending against his stepdaughter was vile, causing untold harm, fear and lifelong damage to a child in his care.

9. The Tribunal does not consider CHCY’s past behaviour is indicative that he will pose a threat to family members in the future but does find that this consideration weighs heavily in favour of affirming the visa refusal on the basis of the offending alone.

   Primary Consideration 3: Strength, nature and duration of ties to Australia (paragraph 8.3)

10. There are several elements to this consideration. It requires consideration of any impact of a decision on a non-citizen’s immediate family members in Australia who are citizens or have a right to permanently reside (8.3(1)). The Tribunal should give more weight to ties where they have a child who is a citizen, or resides here permanently, and consideration to family or social links more generally (8.3(2)-(3)).

11. The Tribunal must also give consideration to a non-citizen’s ties to the community more broadly, having regard to the length of residence in Australia (8.3(4)). The Tribunal must give considerable weight to the fact that a non-citizen has resided in Australia during and since their formative years, regardless of when their offending commenced or its severity, with more weight given to any positive contribution to the community in this time (8.3(4)(a) (i-iii)).

    Submissions

12. CHCY submitted:

    ·He had arrived in Australia at the age of 16 and has continued to live in Australia up to the present day for a total of 21 years of his life.

    ·This gives significant weight towards the strength, nature and duration of his ties to Australia having lived here for more than half of his life while understanding part of his formative years were spent living in New Zealand.

    ·The significant duration of his residency in Australia, his 3 biological children and step-son that consider this country as their home as they were born in Australia and can receive their citizenship certificates, his parents and immediate family support also reside in Australia.

    ·He believes significant weight should be given to the following factors:

    ohis oldest son will begin his university education in March 2024, his son recently became an Australian citizen and has only known Australia as home having lived here since he was an infant. Relocating to New Zealand would heavily impact his studies as he has gained a scholarship to RMIT and against his mother’s and CHCY’s wishes, his son feels he would have to return to New Zealand with his family if CHCY’s visa was cancelled as he cannot bear to be apart from his family unit.

    oHis 3 biological children were all born in Australia and can receive full citizenship.

    oHis parents who have been supporting him and his family emotionally and financially all reside in Australia as well as his sister who is now an Australian citizen and her family also reside in Australia.

    ·He commenced working in Australia when he arrived in 2004 and continued until 2022 for a total of 18 years, until he was imprisoned, being a contributing taxpayer to the Australian government.

    ·He possesses the necessary skills, knowledge and machinery licences to excel in civil construction to further help the Australian community and infrastructure. He has full time employment ready to commence as soon as he is released from detention with his sister’s construction company. He wishes to support his family financially, repay his parents for their generous support towards his legal fees and support of his family, give back to the community and to be a law-abiding tax-paying resident once again.

13. In CHCY’s statement of 23 December 2022, he outlined his ties to the Australian community:

    Mum's the heart of our family, she's the glue that binds us all together, I'm truly sorry I've hurt her so terribly. Especially after having breast cancer in February 2020 with chemo, double mastectomy, a second recurrence and radiation, [my niece’s] illness and my crime on top of everything she suffered. Because of our family history and having a recurrence in two years already, mum needs very close monitoring by her specialists in [redacted]. I'm sorry I have let my mother down, given the chance it will never happen again.

    Dad is actually my step-dad but I've only ever called him dad since I was 9 years old and he has only ever treated me as his son. A year after nursing Mum, Dad had a silent heart attack which we all assumed was stress-triggered. I feel deeply that I have added to his stress by the injury I've caused everyone. Not only has dad worked through covid, looked after mum but also met the legal costs of my case. The unconditional love that my parents have shown me, I really don't deserve, but I'm grateful, if possible, to work hard to repay them financially and emotionally. To earn their trust back and to never put my family and my visa at risk again.

    My family in New Zealand are small in number with my biological father not interested in supporting myself or my family throughout this crisis. I know I would be entering into a hostile environment with a disinterested and unkind father if deported back to New Zealand. I have also been informed that [my stepdaughter] now lives in New Zealand, and I do not wish to cause her any further harm or anguish.

    In conclusion, to all my reasons for wishing to stay in Australia, my most important is that my wife, my children, my parents, my sister and her family need me as much as I need them. I'm sincerely sorry for what I did, and I wish now only to heal my family and provide a better future with faith and hope.

14. CHCY contended that Primary Consideration 3 weighs significantly in favour of the revocation.

15. The Respondent submitted:

    ·CHCY has indicated that he has immediate family in Australia, being his wife and three minor children, his adult stepson, his sister, his mother and stepfather (all of whom are New Zealand citizens), and that he has a close relationship with them. The Respondent accepts that a negative decision against CHCY would have a negative impact on these family members in Australia.

    ·CHCY’s wife had indicated that if her husband were to be removed to New Zealand, she and her children would move to New Zealand to be with him, with the exception of her adult son, CHCY’s stepson, who would remain in Australia to study. The Respondent accepts that there would be difficulties arising from CHCY’s family unit being split, and also for his wife and children having to relocate to New Zealand. However, the Respondent notes that CHCY’s stepson is now an adult, and that he would be able to maintain contact with the Applicant via electronic means, visit his family in New Zealand or as indicated at the hearing, may choose to relocate to New Zealand with his family.

    ·It also accepts that a decision not to revoke the cancellation of CHCY’s visa would be difficult for his mother and stepfather, who would face a situation of having to choose between remaining in Australia with CHCY’s sister's family or returning to New Zealand to be with CHCY and his family.

    ·CHCY’s mother had breast cancer in 2020 and in 2022, and his stepfather had a heart attack in 2021, and his removal from Australia would prevent him from providing physical assistance to his mother and stepfather. However, the Respondent notes that there is no evidence to suggest that his mother and stepfather are reliant on others for daily activities.

    ·CHCY also has other family members in Australia including his brother-in-law, aunts, uncles, and two and nieces and a nephew (minor children). It appears that they are all citizens of New Zealand.

    ·CHCY arrived in Australia in 2004 at the age of 17 and has spent a small amount of his formative years in Australia but acknowledges he has been in Australia for around 20 years.

    ·CHCY has volunteered for the King’s Church by setting up and removing seats for meetings and has been employed in Australia in various roles, including as a manager at KFC for an extended period of time, a warehouse supervisor, warehouse storeman, and machine operator/driver at various companies.

    ·It accepts that CHCY has social ties to the Australian community by reason of his time spent in Australia and his work and volunteering history.

16. The Respondent accepts that Primary Consideration 3 weighs in favour of the Applicant, particularly when considering the impact of his removal on his family in Australia. However, the Respondent contended that any weight assigned to this Primary Consideration is not determinative.

    Findings

17. The Tribunal notes there was no dispute that CHCY had significant ties to Australia; what was in contention was the weight and determinative factor to be placed on Primary Consideration 3.

18. The Tribunal also notes the Respondent accepts CHCY spent a small part of his formative years in Australia. The Tribunal noted CHCY claimed to have migrated permanently to Australia at 16 whilst the Respondent submitted it was 17, CHCY’s movement records indicate he arrive in Australia in 2003 and then departed and returned several times during 2004. The Tribunal accepts that CHCY arrived in Australia in his teenage years spending part of his formative years in this country.

19. The Tribunal finds CHCY has lived for the majority of his life in Australia working full time, making a contribution to the taxation system, the community and his family. The Tribunal places weight on this consideration noting the Direction clearly articulates tolerance should be given to non-citizens in CHCY’s circumstances:

    With respect to decisions to refuse, cancel, and revoke cancellation 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.

20. The Tribunal finds CHCY’s immediate family will be greatly impacted by refusal of his visa. CHCY’s extended close-knit and very supportive family all reside in Australia and the Tribunal accepts their evidence they would be devastated if he was removed to New Zealand. The Tribunal notes all CHCY’s immediate family have the right to stay in Australia indefinitely and several have become or are in the process of becoming Australian citizens.

21. The evidence before the Tribunal was clear the only connection CHCY and his extended family had to New Zealand was their passports. The evidence indicated that removing CHCY from his immediate family would leave him without the prosocial factors he needs to keep to the path he has embarked upon and would put significant pressure on his family who remained in Australia.

22. The Tribunal relied upon CHCY’s mother ‘s evidence that CHCY’s removal to New Zealand would put her between a rock and a hard place. CHCY’s mother explained:

    ·That her life was in Australia.

    ·The family could not continue their healing journey if CHCY was removed.

    ·She was still undergoing cancer treatment and had to remain in Australia to get necessary medical treatment as she could not get the same level of medical care in New Zealand.

    ·CHCY’s wife and children have been residing with her and her husband since CHCY went to prison, they have built a strong bond and she would be devastated to lose this bond.

    ·CHCY’s niece needed to continue her medical treatment in Australia.

    ·CHCY would struggle in New Zealand as he had no connections, nowhere to live, no work and would struggle to find work because of his convictions; this would put strain on the extended family; in Australia he would have stable accommodation, work and extensive family support.

    ·CHCY had a considerable debt for the sizeable legal fees they had paid on his behalf and he may never be able to repay the money if he was sent back.

    ·She did not want to have to choose between her children - one in Australia and one in New Zealand and they both needed her now because of the significant issues they were dealing with.

    ·She and other family members could go to New Zealand and visit CHCY but this would not be the same as having him close by.

    ·CHCY had experienced the difficulty of separation when living in Brisbane especially during COVID which was a stressful time for everyone but for their family in particular as it was when she was diagnosed with cancer, CHCY’s stepfather suffered numerous heart attacks, his niece was diagnosed with leukemia and his wife had a difficult birth and she knew CHCY would struggle in New Zealand without his extended family support, most particularly from herself and his stepfather.

23. The Tribunal relied upon CHCY's wife’s Statutory Declaration of 23 June 2023 stating:

    I would like to have the chance for [CHCY] and I to rebuild our family, to be stronger and unbreakable, here in [redacted] with the support of our family and our faith.

    I came over to Australia when I was 18 years old. I got a phone call that my dad was sick in Brisbane and didn't have much time to leave. I got to spend precious time with my dad. It was really hard.

    I was struggling in New Zealand, alone with a newborn baby. I have been lucky to call Australia home and I have only gone back once to New Zealand for my grandfather's funeral. Other than that, I have been in Australia all that time.

    Australia has given our kids and us a better life. Everything we have here we would not have had in New Zealand. All the opportunity for the kids in Australia has been awesome.

    Our eldest son going to university on a scholarship. The other kids are really into their sports - especially netball.

    I know we could not give them the kind of life they have here in Australia if we had to move to New Zealand.

    We would go with [CHCY] if that is the result, but none of us want to do that.

    If we get a negative outcome, I don't know how I would cope having to leave our eldest son behind. He has been my rock since [CHCY] has been gone. He wants to continue his studies here so he can't go.

    All our family are here in [redacted]. My mother-in-law; father-in-law; and my sister-in-law have been our biggest support. We would not have them in New Zealand.

    I would find it emotionally and physically hard to adjust to having no family in New Zealand.

24. The Tribunal accepts CHCY’s wife and children would relocate to New Zealand with him if his visa were cancelled and this would mean he would not be separated from them but accepts the evidence it would have a significant impact on his wife and children. The Tribunal notes this would be significant for CHCY’s stepson as he has indicated he would forgo his scholarship and higher education in Australia as he did not wish to be separated from his family.

25. The Tribunal found, in Australia CHCY will have the necessary prosocial factors to ensure he is at low risk of reoffending, he will have stable accommodation, employment and extensive family support.

26. The Tribunal found that CHCY’s strength, nature and duration of ties to Australia as a primary consideration, weighs in favour of revocation of his visa cancellation as he has lived here for 21 years. During this time, he has been continuously employed, has undertaken extensive skills training to enable him to further contribute to Australia, has contributed to the community through volunteering, and has an extensive support family network.

    Primary Consideration 4: Best interests of minor children in Australia affected by the decision (paragraph 8.4)

27. The Tribunal must determine whether or not a decision not to revoke the visa cancellation is in the best interests of a child affected by the decision (8.4(1)). The interests of children should be considered individually, and a range of specific factors are identified as relevant (8.4(3)-(4)).

    Submissions

28. CHCY submitted:

    ·His 3 young children were all born in Australia and only know it as home, they would be greatly affected by the decision of deportation as they have no ties at all to New Zealand, have never been there before and would be forced to leave the only life they have known behind and the support of the only extended family they know, being their grandparents, aunts, uncle and cousins.

29. In CHCY’s statement of 23 December 2022 he articulated the best interest of all his children affected by the decision:

    My hope for the future is that I may be allowed to join my family in [redacted], where I can work on repairing my family. I wish to provide financial security, be a constant presence in my children's lives and to be considered safe to the community I'm in.

    My eldest son [redacted], he just completed year 12 where he won awards of achievement. This has led him to win a scholarship to university for mechanical engineering in [redacted]. I'm so proud of what he's achieved, I'm sad I've missed being present, but I hope I'll be allowed to be there for future graduations.

    [Redacted] is my second son, he's [redacted] and he'll commence his first year of high school which is another milestone I'll miss. He's a bright young man who wants to be a scientist. [redacted] was awarded Student of the Year 2022 and also recognised for his netball skills and trombone.

    [Redacted] is my first daughter who bubbles with joy and happiness, dances around the house and sings constantly. Sadly, [redacted] has learning disabilities which was our time for alternative strategies to bring her up to par.

    [Redacted], she needs everyone in her family, including me, to be in her life. She's one of my strongest reasons for wanting to stay in Australia, to see her grow, talk, sing and dance. To witness all her firsts, her ups and downs. Collectively, separating me from my children permanently would do more damage than I can imagine. To my children's well-being emotionally and physically and to my own mental health and further harm to myself and my family.

    My sister [redacted] is married with 3 children, [redacted]…[My sister] and her husband [redacted], run their own landscaping roadworks company and have assured me of employment in [redacted]. My sister and I are very close, and I am grateful for her love, support and forgiveness.

    My niece [redacted] fell ill in August 2021 with Leukemia. While compromised from chemo she contracted a hospital super-fungus which put her in a life threatening position over the next 12 months. [She] lost her right kidney, 1/3 of her liver and all of her large bowel and endured 29 surgeries to date. Covid had a profound and negative impact on myself as I was unable to physically support my sister and my niece due to interstate travel restrictions supporting my entire family in [redacted] was so impossible that staying, working and supporting them now can lighten the load with me doing my share of the carrying.

    My niece [redacted] has a love for art and creative writing, we have this in common….. I'm grateful for her phone calls, drawings and stories and hope to be able to return these in person.

    My nephew [redacted] has just been diagnosed with high-functioning autism. He requires learning strategies, (like my daughter) and with his behaviour which can escalate rapidly. I’m sorry that I couldn’t be more helpful to my sister but it is my hope to change that if my visa is returned to be a better brother and uncle.

1. Accordingly, the Tribunal found this Primary Consideration weighs strongly in favour of affirming the Reviewable Decision but was not determinative.

   OTHER CONSIDERATIONS

2. In making a decision under sections 501(1), 501(2) or 501CA(4) of the Act, the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

   Legal consequences of the decision (paragraph 9.1)

3. The Direction reminds decision-makers to be mindful that unlawful non-citizens are liable for removal from Australia as soon as reasonably practicable (see section 198 of the Act), noting that section 197C(1) of the Act provides that, for the purposes of section 198, it is irrelevant that Australia has non-refoulement obligations in respect of an unlawful non-citizen.

4. The Respondent contended that non-refoulement obligations are not raised in this application. Whilst CHCY’s evidence was he has received a verbal death threat from New Zealand, no further evidence has been provided in this regard. The Respondent contended that this claim is insufficiently particularised to raise any non-refoulement claims. The Respondent contended that CHCY’s evidence had been he would not be in contact with his stepdaughter or her family, so they would have no knowledge of their address in New Zealand. Additionally, CHCY had advised he would seek an intervention order from the courts and had full confidence he would be protected by the police in New Zealand.

5. The Tribunal finds that there are no non-refoulement obligations that need to be observed in this situation. Neither CHCY nor the Respondent sought to pursue this argument because international non-refoulement obligations arise in a situation where a person may be removed to a country and face the prospect of being subjected to cruel or unusual punishment and this would not be the case for New Zealand.

6. The Tribunal noted CHCY’s concern about the verbal threats made to himself and most particularly his wife and does not dispute these would be of concern. However, the Tribunal did not consider there was sufficient information for this threat to give rise to a protection claim for CHCY and agreed with the Respondent that CHCY would be able to seek assistance from the New Zealand Police if he and his family felt threatened.

   Extent of impediments if removed (paragraph 9.2)

7. The Tribunal must consider the extent of impediments a non-citizen may face if removed to their home country, in ‘establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country)’ (9.2(1)). Specific factors to take into account are their age, health, any ‘substantial language or cultural barriers’, and any social, medical or economic help available.

   Submissions

8. CHCY submitted:

   ·There was financial hardship in relocating a family of 3 adults and 3 minor children, 2 loved family pet dogs, a container full of furniture, their vehicle and personal belongings.

   ·Being placed on the sex offenders registry will greatly decrease his opportunities for employment making it difficult to provide for a family of 6.

   ·His physical health issue, being a type 2 diabetic is well-managed, he has no mental health issues of any concern as he has overcome these factors with very successful therapy, coping strategies and techniques to assist him moving forward and feels it's not accurate for the delegate to say that he has these issues.

   ·The severity of the impact the deportation would have on every member of his family, specifically his wife, 4 children, parents, sister and her family are also stated in their statutory declarations.

9. The Respondent submitted:

   ·CHCY is 37 years of age, has type 2 diabetes but expressed to Mr Jordan that he considers his condition to be well-managed as a New Zealand citizen, he would be eligible for a similar standard of medical care in New Zealand as is available in Australia.

   ·It acknowledges that CHCY would face initial emotional hardship if he was removed to New Zealand, particularly as he has spent the last 20 years of his life in Australia. However, the Respondent notes that CHCY would likely have the support of his wife who has expressed that she and her minor children would move to New Zealand with her husband. The Respondent also contends that CHCY is unlikely to face language barriers given that he spent the first 16 years of his life in New Zealand and has various work experience in Australia through which he would have acquired transferrable skills that would assist him in securing employment in New Zealand.

10. The Respondent contends that this Other Consideration weighs in favour of CHCY but to a limited extent for the reasons outlined.

    Findings

11. The Tribunal concludes that CHCY would have no practical difficulties in re-assimilating if returned to New Zealand. CHCY did not advance evidence of any language or cultural barriers that would be present in relation to himself but did stress his children would be disadvantaged having lived all their lives in Australia and would find life in New Zealand different. CHCY and his mother both attested to the difficulty he would face in finding employment and housing if he was forced to return to New Zealand.

12. The Tribunal accepts that CHCY would face significant financial and emotional hardship if he were to have his visa revoked as the evidence indicated he would have no support network in New Zealand. The Tribunal accepts that CHCY would struggle to find accommodation for his family of six and would be at a disadvantage for finding work as he would be placed on the child sex offenders register in New Zealand.

13. The Tribunal accepted CHCY’s evidence that he would have to relocate in the first instance on his own to secure accommodation and work before his wife and children could join him in New Zealand. This would put a strain on the family who are still trying to rebuild trust after his offending came to light. The Tribunal also accepts this would come at a cost to all his children who would have to disrupt their education mid-year to start afresh in a place they do not know, having found security in their schools, sporting clubs and extended family only recently in Australia.

14. Overall, given that the prospects for employment, housing and financial support, the Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of the visa.  The Tribunal considered that in particular all of CHCY’s children would be adversely impacted.

    Impact on victims (paragraph 9.3)

15. The Tribunal must consider any evidence of the impact of a non-citizen's offending on a member of the Australian community.

16. In his sentencing remarks on 25 November 2022 his Honour Kent KC noted:

    Unfortunately, the victim impact statement indicates that the impacts are substantial and ongoing on the complainant.

    Submissions

17. CHCY submitted he was aware the victim had relocated to New Zealand with the support of his wife’s extended family in Queensland but was unaware of where she was residing in New Zealand. His wife and his family have had no contact with or from the victim but have been advised she is doing well and getting on with her life. He has no idea of the impact his removal would have on her but does not wish to cause her any further distress.

18. CHCY reiterated to the Tribunal that he was very remorseful for his actions towards his stepdaughter and could not really explain how he destroyed the trust and bond they shared. His evidence was he prayed daily for peace, love, joy and happiness for her.

19. The Respondent submitted:

    ·In Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116, the Full Court found that this Other Consideration includes consideration of both beneficial and adverse impacts of revocation on victims (and by extension in this case, the victim's family).

    ·Although the victim has been impacted by the offending, there is no information from the victim as to how a section 501CA decision would impact her. The family members of the victim are also family members of the Applicant.

    Findings

20. Whilst no evidence has been presented to the Tribunal, it does have an indication of the impact on the victim from the sentencing remarks. His Honour noted:

    I am compelled by the Penalties and Sentences Act to have primarily regard to a number of factors in the sentencing process. They include the effect of the offences on the child which were significant, the age of the [victim] she was young,.

21. Additionally, the Tribunal considers the evidence that the victim has relocated to New Zealand to start afresh, removing herself not only from CHCY but also her mother and siblings is an indication of the significant impact of these horrendous acts committed against her.

22. However, the Tribunal appreciates the victim of CHCY’s offending has not indicated a position of the impact of revocation of his visa, and therefore determines this consideration weighs neutrally.

    Impact on Australian business interests (paragraph 9.4)

23. The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501CA would significantly compromise the delivery of a major project or important service in Australia.

24. The Respondent submitted that even applying Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311 at [68]-[71] (which explains that paragraph 9.4 requires the Tribunal to consider 'any' impact on Australian business interests), there is no evidence currently available to suggest this consideration is engaged. Accordingly, the Respondent contended that this consideration is neutral.

25. The Tribunal does not consider that there will be any impact on Australian business interests if the Applicant's visa remains cancelled or is restored. The Tribunal finds that this Other Consideration is therefore not engaged.

    Additional considerations

26. As noted in paragraph 9 of the Direction, decision-makers are not limited to the four matters outlined and may consider other factors. CHCY submitted that New Zealand was a small place, and he did not want to cause the victim any more stress or psychological harm with his presence in the same country where she has gone to establish a new start to life. Particularly as it appears she has been receiving counselling, returned to her studies and is recovering well, he did not wish to undo any of her hard work she had done to get through this very traumatic event that was all his fault.

27. The Respondent contended that CHCY’s own evidence had been he had no desire to make any contact with his stepdaughter, that he would return to a city in New Zealand where his stepdaughter was not residing and that it was highly unlikely he would unintentionally make contact with his stepdaughter.

28. The Tribunal perversely observes it is the victim of CHCY’s offending who has been removed from Australia, the only country she has known and away from her mother, siblings, extended family and friends. It is the victim who has had to find a new life in a country she did not know with a father she had little to no contact with. The Tribunal was advised by CHCY’s mother that whilst they have had no direct contact with the victim and have not been able to reconnect with her, they have heard through the police and members of CHCY’s family that the victim is doing well.

29. The Tribunal does not consider that New Zealand is such a small place that CHCY could not use his wits to avoid running into the victim unawares. However, the Tribunal did consider that the victim may suffer trauma from the knowledge that the place she had run to be safe in is no longer so secure as her perpetrator is now residing in her safe haven.

30. The Tribunal places no weight on this other consideration as it finds the concerns raised by CHCY in respect of the primary and other considerations have addressed his concerns about being removed to New Zealand.

    CONCLUSION

31. CHCY contended the evidence from the psychologist reports indicate he would not be a threat to the Australian community if he were to be released. He has never committed prior offences. He has never previously been involved in police incidents involving anyone in the Australian community and it was unfathomable that he would suddenly start offending against innocent third parties, especially considering the strong disincentives for him to do so.

32. CHCY apologised for the very horrible and serious crimes that he has committed and understands that the seriousness of his crimes weighs heavily against him for revocation. CHCY contended the impact and the ripple effect that this decision would have on his family would be substantial. His family members affected by the decision are law-abiding, long-term residents of Australia. They are all committed to Australia and none of them want to leave.

33. CHCY contended if he was successful in being released back into the community, he wanted to do everything within his power to prove that he deserves this chance and wishes to put everything he has learnt, all the strategies that he now possesses to help anyone in need and for the greater good of this amazing country which his extended and very close family call home.

34. CHCY contended he arrived in Australia when he was 16, has lived here continuously for almost 21 years, and made positive contributions to Australia through his industrious and strong work ethic.

35. CHCY contended his three biological children have the right to become Australian citizens and will do so if they are allowed to stay in Australia, but they would no longer have that privilege if removed from the only place that they too have known as home. CHCY contended his children may be New Zealanders by decent, but they are Australians at heart.

36. CHCY contended all his children will be the next generation of great Australian citizens that will contribute to the greater community. If permitted to stay in Australia, his wife and children will become full Australian citizens, and the only reason they have not done so yet is due to no income support being provided by himself.

37. CHCY submitted his oldest son will be starting his university degree for which he earned on a scholarship that is only valid in Australia, it would be greatly disrupted by relocating to a country he has not been to since he was born. However, his son has made it very clear, against his and his wife’s wishes for him to remain in Australia, that it would be too hard on him to be apart from his parents and his siblings. He has expressed to his family that it would be very difficult for him to concentrate on his schooling and education if his family is torn apart which is why he does not wish to stay in Australia without them.

38. CHCY submitted the family have a ‘Post Release’ plan if his visa is restored. He will return to his wife and children, he has employment arrangements with his sister’s business, will live close to his parents and to his sister and her family. He will be able to hit the ground running and reassume his role as the father of his young children. He will be able to financially provide for his family and provide care to those that love and need him.

39. CHCY submitted revocation of the decision to cancel his visa will ensure that his wife and children, his parents, his sister and her family, can heal the pain, and move on. CHCY contended other reasons in favour of revocation should weigh heavily in his favour. CHCY submitted his offending was isolated and uncharacteristic and the evidence does not suggest that anything like it would ever happen again.

40. The Respondent contended that CHCY does not pass the character test because he has a 'substantial criminal record' as defined in subsection 501(7) of the Act. Further, having regard to the considerations in the Direction, the Respondent submits that the Tribunal cannot be satisfied that there is another reason why the Tribunal should revoke the decision to cancel his visa.

41. The Respondent contended that Primary Considerations 1, 2, and 5 should weigh very heavily against the Tribunal being satisfied that there is another reason why the cancellation decision should be revoked, noting in particular the very serious nature of the offence which involved rape and indecent treatment of his 14 year old stepdaughter and the fact that he has not attended the medium intensity sexual offender program recommended by Mr Jordan or a program of a similar nature.

42. The Respondent accepts that Primary Considerations 3 and 4 and Other Consideration 2 (to a limited extent) weigh in CHCY’s favour, but the weight that the Tribunal should give to these considerations should be moderated due to the fact that his wife and minor children appear willing to travel to New Zealand with him in the event of a non-revocation decision, and that New Zealand is a country with similarities to Australia in language and services available, and is where CHCY and his wife grew up. As such, the Respondent contends that these considerations are outweighed by Primary Considerations 1, 2, and 5.

43. The Respondent submits that the present case is one that falls within a kind described in paragraph 5.2(6) of the Direction, which provides that:

    In particular, the inherent nature of certain conduct such as family violence and the other types of conduct … mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

44. Accordingly, the Respondent contended that the correct or preferable decision is for the Tribunal to affirm the delegate's decision not to revoke the decision to cancel CHCY’s visa pursuant to section 43(1)(a) of the AAT Act.

45. Consistent with the Direction, the Tribunal has given weight of various degrees to the primary and other considerations. 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. However, as held in Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, ‘the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501’.

46. Of the Primary Considerations the Tribunal found:

    ·Whilst CHCY was a low risk of reoffending, his offending was of such a nature that it must be considered serious even though the Tribunal did not consider he posed a measurable risk of causing physical harm to the Australian community. The Tribunal therefore considered that protection of the Australian community weighs in favour of discretion being exercised to refuse to grant the visa.

    ·The evidence before the Tribunal demonstrated CHCY had been convicted of family violence and found that this consideration weighs in favour of affirming the visa refusal.

    ·The strength, nature and duration of ties to the Australian community, and the best interests of minor children in Australia affected by the decision both weigh strongly in favour of granting the visa. CHCY has lived in Australia for the majority of his life and his minor children know no other country.

    ·The Australian community would expect someone who had committed offences against a minor in his care not to be granted a visa and found this factor weighs in favour of discretion being exercised to refuse to grant the visa.

    ·Of the other considerations, the Tribunal determined that the extent of impediments if removed, was engaged, finding that if CHCY and his family were to return to New Zealand this consideration weighed in favour of revocation. The Tribunal considered all the other factors were neutral.

1. The Tribunal fully appreciates that CHCY has not merely breached but violated the expectation that he be a law-abiding citizen who respects Australian institutions. As a general principle, the Direction establishes that on this basis his visa should be cancelled. However, overall, the Tribunal found CHCY’s particular circumstances and those of the victim satisfied the Tribunal that there is another reason why the cancellation decision should be revoked.

2. Accordingly, the Tribunal finds that there is another reason that the mandatory cancellation of CHCY’s visa should be revoked.

   DECISION

3. Pursuant to section 43(1)(c)(i) of the AAT Act, the Tribunal sets aside the reviewable decision. In substitution, the Tribunal finds there is another reason under section 501CA(4)(b)(ii) of the Migration Act 1958 to revoke the mandatory cancellation of CHCY’s visa.

I certify that the preceding 155 (one hundred and fifty-five) paragraphs are a true copy of the reasons for the decision herein of Ms A E Burke AO Member

..............................[sgd]..........................................

Associate

Dated: 5 March 2024

Date(s) of hearing:	22-23 February 2024
Applicant:	Self-Represented
Advocate for the Respondent:	Mr Alexander Zhang
Solicitors for the Respondent:	Clayton Utz