CZCV and Minister for Home Affairs (Migration) - [2019] AATA 91

CZCV and Minister for Home Affairs (Migration) [2019] AATA 91 (6 February 2019)
Division:GENERAL DIVISION
File Number:2018/6677
Re:CZCV
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans
Date:6 February 2019
Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated
14 November 2018, is affirmed.
..............................[sgd].........................................
Senior Member Dr M Evans
CATCHWORDS
MIGRATION – decision of delegate of Minister to refuse application for a Class XA, Subclass 866 Protection visa – failure to pass character test – offence of sexually penetrated a child over 13 and under 16 years – Ministerial Direction no. 65 – primary and other considerations – international non-refoulement obligations – protection of the Australian community – best interests of minor children – expectations of the Australian community – Australia’s non-refoulement obligations breached if returned to Zimbabwe – whether expert is independent – content of briefing letters and documentation given to expert – weight to be given to expert report – operation of two day rule – best interests of Applicant’s nephew mentioned in closing submissions only – interpretation of Direction no. 65 – weight to be given to the primary and other considerations decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 43
Migration Act 1958 (Cth) – s 36(2A), s 36(2)(aa), s 46(2), s 48A, s 49A, s 195A, s 189,
s 195, s 197C, s 198, s 499, s 499(1), s 499(2A), s 500, s 500(1)(ba), s 500(6B),
s 500(6H), s 500(6J), s 500(6L), s 501, s 501(1), s 501(3A), s 501(6), s 501(6)(a),
s 501(6)(e), s 501(7), s 501(7)(c), s 501(7)(d), s 501(7A), s 501E, s 501E(2)(a), s 501G(1)
Migration Regulations 1994 (Cth) – reg 2.20A
CASES
Afu and Minister for Home Affairs [2018] FCA 1311
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448
Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378
Minister for Home Affairs v HSKJ [2018] FCAFC 217
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38
Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213
PRHR and Minister for Immigration and Border Protection [2017] AATA 2782
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705
SECONDARY MATERIALS
Direction no. 65 – Migration Act 1958 – Direction under section 499 visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under
s 501CA – paras 6.1, 6.2, 6.3, 7, 8, 9, 11, 12, 13 Part B
Administrative Appeals Tribunal Guideline for Person’s Giving Expert and Opinion Evidence, 30 June 2015
DC Pearce and RS Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8^th ed, 2014)
REASONS FOR DECISION
Senior Member Dr M Evans
6 February 2019
BACKGROUND

The Applicant is a 36-year-old man who is a citizen of Zimbabwe. He arrived in Australia on 13 July 2012 (G4, page 42) as a dependent on his wife’s student visa.
The Applicant applied for a Protection (Class XA) Visa (Protection Visa) on approximately 5 February 2013 (G4, page 115) or 6 February 2013 (G4, page 43). He was granted a Class WA Subclass 010 Bridging A visa on 6 February 2013 (Bridging Visa) (G4, page 43).
On 27 February 2014, a delegate of the Minister for Immigration and Border Protection refused to grant a Protection Visa to the Applicant, as well as to his wife and daughter who were included in the application but did not raise their own separate protection claims (G4, page 157-175). On 28 March 2014, the Applicant, his wife and daughter applied to the Migration & Refugee Division of the Administrative Appeals Tribunal (Tribunal) for a review of this decision.
On 13 June 2014, the Applicant was convicted in the Perth District Court of Western Australia of four counts of “Sexually penetrated a child over 13 and under 16” years, and was sentenced to four years and six months imprisonment on each count, to be served concurrently.
A letter from the Department of Immigration and Border Protection dated 28 January 2016, advised the Applicant that on 7 January 2016, his Bridging Visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) because he failed to pass the character test on the basis of having a substantial criminal record

(s 501(6)(a) of the Migration Act) or because a court in Australia had convicted him of one or more sexually based offences involving a child (s 501(6)(e) of the Migration Act (G4, page 43)).
The letter dated 28 January 2016 further advised the Applicant that he had an opportunity to seek revocation of the decision to cancel his Bridging Visa (G4, page 44). In a letter dated 15 February 2016, received by the Department on 18 February 2016 (G4, page 66), the Applicant’s legal representative requested a revocation of the decision to cancel his Bridging Visa.
On 1 June 2016, the Tribunal remitted the Protection Visa refusal decision for reconsideration with the direction that the Applicant met the complimentary protection criteria in s 36(2A) of the Migration Act, and that the Applicant’s wife and daughter satisfied s 36(2)(aa) of the Migration Act (G4, page 176).
The Tribunal did not accept that the Applicant faced a real risk of serious harm on the basis of his actual or perceived political opinion and past political activities if he were returned to Zimbabwe. However, the Tribunal found that there was a real risk of significant harm from the victim’s family in Zimbabwe who may physically harm the Applicant as revenge for the sexual offences committed against the victim (G4, page 196-198, at paragraphs [118] to [131]).
On 14 November 2018, a delegate of the Minister decided not to revoke the decision to cancel the Bridging Visa (Exhibit R2, paragraph [7]) (Non-revocation Decision).
Additionally, on 14 November 2018, a delegate of the Minister also refused to grant the Applicant a Protection Visa (G2, page 8-22) (the Reviewable Decision). On

15 November 2018, the Applicant lodged an application for review of the Reviewable Decision in the General Division of the Tribunal (G1, page 1-7).
The Applicant did not lodge an application for review by the Tribunal of the Non-revocation Decision.
The only decision which is subject to review by the Tribunal is the Reviewable Decision, being the decision of a delegate of the Minister of 14 November 2018 to refuse to grant the Applicant a Protection Visa.
ISSUES
The issues for determination by this Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)
if the Applicant does not pass the character test, whether the Tribunal should exercise discretion under s 501(1) of the Migration Act to set aside the Reviewable Decision and substitute a new decision that discretion should be exercised to grant the Applicant’s Protection Visa having regard to the primary and other considerations in Direction no. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

(Direction no. 65).
JURISDICTION
This application is made pursuant to s 500(1)(b) of the Migration Act. This section allows applications to be made to the Tribunal for review of decisions of a delegate of the Respondent under s 501 of the Migration Act.
As noted above, the Reviewable Decision of 14 November 2018 was communicated to the Applicant’s legal representative by email on the same date. His application for review was lodged with the Tribunal on 15 November 2018. The Applicant is in immigration detention, and is in the migration zone. He therefore lodged his application for review by the Tribunal within the nine-day period after he received the decision in accordance with

s 501G(1) and s 500(6B) of the Migration Act.
The Tribunal is therefore satisfied that the application was lodged within time, and that the Tribunal has jurisdiction to review the Reviewable Decision.
MATERIAL BEFORE THE TRIBUNAL
The application was heard by the Tribunal on Thursday 17 January 2019 and Friday

18 January 2019. The Applicant was represented by Ms Anna Copeland from SCALES Community Legal Centre and appeared in person.
The Respondent was represented by Ms Melinda Jackson from The Australian Government Solicitor.
The Applicant, his wife, the Applicant’s friend, the Applicant’s sister-in-law and the Applicant’s brother-in-law gave evidence and were cross-examined. The Applicant also called Dr Leonie Coxon (Dr Coxon), a Clinical and Forensic Psychologist to give evidence. Dr Coxon gave evidence by telephone on the second day of the hearing, and was cross-examined by Counsel for the Respondent.
The Tribunal admitted the following documents into evidence at the hearing:
(a)the Applicant’s Statement of Facts, Issues and Contentions, dated 14 December 2018 (Exhibit A1);
(b)a Statement in the form of a Statutory Declaration from a friend of the Applicant dated 19 December 2018 (Exhibit A2);
(c)a Statement in the form of a Statutory Declaration from the Applicant’s sister-in-law (Exhibit A3);
(d)A Statement in the form of a Statutory Declaration from the Applicant’s brother-in-law (the husband of the Applicant’s sister-in-law) (Exhibit A4);
(e)the Applicant’s Further Submissions in Reply to the Respondent’s Statement of Facts, Issues and Contentions, dated 14 January 2019 (Exhibit A5);
(f)the Applicant’s Further Evidence in Reply (Exhibit A6) which includes:
(i)
Forensic Psychological Assessment Report from Dr Coxon dated

10 January 2019 with attachments; and
(ii)Duplicate copies of the Statements which comprise Exhibits A2, A3 and A4.
(g)the Tribunal requested, and was provided with, the following briefing letters and emails from the Applicant’s legal representative, Ms Copeland (Exhibit A7), that were received by the Tribunal at 9.45 am on 15 January 2019:
(i)
letter to Associate Professor Guy Hall (Professor Hall) dated

10 March 2017;
(ii)two emails to Dr Coxon, both dated 3 December 2018;
(iii)letter addressed to Border Force Detention Visits dated 3 December 2018; and
(iv)email to Dr Coxon dated 10 December 2018.
(h)the s 501 documents (G documents) numbered from G1 to G4, comprising 312 pages (Exhibit R1); and
(i)
the Respondent’s Statement of Facts, Issues and Contentions, dated

9 January 2019 (Exhibit R2).
During the second day of the hearing, the Tribunal requested, and was provided with copies of the following documents which were attached to the briefing letter to Professor Hall because they had not previously been provided to the Tribunal. Due to the operation of the “two-day rule” in s 500(6J) of the Migration Act, the Respondent offered to tender these documents which were:
(a)Letter from Association for Services to Torture and Trauma Survivors (Asetts) dated 14 April 2014 (Exhibit R3); and
(b)Letter from Dr Andrew Davies, Transition Clinic, dated 23 March 2014 (Exhibit R4).
The copy of the Medium Sex Offender Treatment Program Report (SOTP Completion Report) in Exhibit R1 (G4, page 261-267) contained multiple redactions. As this was a relevant report which the Applicant sought to rely upon, an un-redacted copy of the SOTP Completion Report was obtained by a summons requested by the Respondent, and received by the Tribunal on the second day of the hearing. The un-redacted SOTP Completion Report was admitted into evidence as Exhibit R5.
LEGISLATIVE FRAMEWORK
Section 501(1) of the Migration Act provides that:
(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Section 501(6) of the Migration Act provides that:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
…
(e) a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child…
A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(6) For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)
the person has been sentenced to a term of imprisonment of

12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more…
(Original emphasis.)
DIRECTION NO. 65
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 22 December 2014, the Minister for Immigration and Border Protection made Direction no. 65 under s 499 of the Migration Act.
Paragraph 6.1 of Direction no. 65 sets out the “Objectives” of the Migration Act, with paragraph 6.1(2) being relevant to the Reviewable Decision currently before the Tribunal:
(2)Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
Paragraph 6.2 of Direction no. 65 provides general guidance as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction no. 65 sets out further principles:
(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)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Informed by the principles set out in paragraph 6.3 of Direction no. 65, the decision-maker (in this case, the Tribunal) must take into account the primary considerations in Part B of Direction no. 65. Specifically, paragraph 11(1) of Direction no. 65 provides:
(1)In deciding whether to refuse a non-citizen's visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian Community.
Paragraph 12 of Part B of Direction no. 65 lists other considerations as follows:
(1)In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims;
(d)Impact on Australian business interests.
Paragraph 7(1)(a) of Direction no. 65 outlines how a decision-maker is to exercise discretion:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa…
Further guidance as to how a decision-maker is to apply the considerations in Direction no. 65 can be found in paragraph 8 of Direction no. 65 which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?

Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act.
A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act). On 13 June 2014, the Applicant was sentenced to a term of imprisonment of 4 years and 6 months, together with 3 further terms of imprisonment of 4 years and 6 months for “sexually penetrated a child over 13 and under 16”, to be served concurrently (G4, page 39). Consequently, the Applicant does not pass the character test. The Applicant would also fail the character test under s 501(6)(e) because his offences were sexually based offences involving a child.
The Applicant does not contest that he does not pass the character test (Exhibit A1, paragraph [13]), but argued that discretion should be exercised in favour of a grant of a Protection Visa to him. To determine whether this discretion should be exercised, the Tribunal will now consider the relevant primary and other considerations in Direction no. 65.
IS THE TRIBUNAL SATISFIED THAT DISCRETION SHOULD BE EXERCISED IN FAVOUR OF THE GRANT OF A PROTECTION VISA TO THE APPLICANT?
Primary considerations
Paragraph 11(1) of Direction no. 65 sets out three primary considerations for decision-makers:
(1)In deciding whether to refuse a non-citizen's visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian Community.
First Primary consideration: Protection of the Australian community (paragraph 11.1(1) of Direction no. 65)
Paragraph 11.1(1) of Direction no. 65 provides further detail with respect to the first primary consideration:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle 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. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision makers should also give consideration to:
a)The nature and seriousness of the non-citizen's conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paragraph 11.1.1(1) of Direction no. 65)
Paragraph 11.1.1(1) of Direction no. 65 expands on the factors that decision-makers must consider to evaluate the nature and seriousness of the visa applicant’s conduct:
(1)In considering the nature and seriousness of the non-citizen's criminal offending or other serious conduct to date, decision-makers must have regard to:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
d)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
e) The sentence imposed by the courts for a crime or crimes;
f)The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
g) The cumulative effect of repeated offending;
h)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
i)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
As noted above, on 13 June 2014, the Applicant was convicted in the Perth District Court of Western Australia of four counts of “Sexually penetrated a child over 13 and under 16” years, and was sentenced to four years and six months imprisonment on each count, to be served concurrently. The Applicant pled “not guilty” and after a trial, during which the victim was required to give evidence and be cross-examined, the jury found him to be guilty on the four counts.
The offences, which occurred between August and October 2012 (G4, page 53), were described by the sentencing Judge, Schoombee DCJ in her sentencing remarks (G4, page 49-50) as follows:
The first charge of sexual penetration of which you were found guilty occurred when you picked up [the victim] from school in your car and drove her to a parking area near a park. You then had sex with her in the back of the car. [The victim] said she told you to stop and she was crying, but you continued until ejaculation. When [the victim] was asked in cross-examination whether she agreed to have sex with you she denied this.
The second and third charges were on an occasion a week afterwards when you again picked up [the victim] from school and you took her to your unit where you and your wife were living at the time. She said that you had sex three times with her on the floor, although the jury only found you guilty of two times.
[The victim] had initially told the child interviewer that you penetrated her three times, but in her evidence in chief she could not remember exactly how many times. The DNA results that were obtained showed that your DNA was left on stains on the carpet where [the victim] said this had occurred.
The fourth charge relates to an occasion when you came to [the victim’s] home while her mother and younger siblings were still home. Her mother and younger siblings then left for a birthday party, but you said that you wanted to have a little nap before you joined them.
You texted [the victim] on her mobile phone and asked her to stay with you. She texted you back saying, “convince her”, meaning her mother. [The victim] then stayed behind with one of her younger sisters. On that occasion you also had sex with her on the floor of her bedroom while her younger sister was in the lounge.
Soon after this occasion [the victim] told the school nurse about what had happened to her. Now, Mr [Applicant], this was very serious offending because you were aged 30 at the time and [the victim] was only aged 15 which is still being a child.
Applying paragraph 11.1.1(1)(a) of Direction no. 65, the Applicant’s offending was in the nature of sexual crimes, which are to be viewed seriously.
Children are vulnerable members of the community, and applying paragraph 11.1.1(1)(b) of Direction no. 65, the Applicant’s offences against a 15 year old victim are to be considered serious. The impact that the offending had on the victim is also an indication of the seriousness of the offending. In her sentencing remarks Judge Schoombee DCJ described the impact of the Applicant’s offending on the victim (G4, page 52-53):
[The victim] has provided a victim impact statement and I just want to read some bits of it to you so you can see what the effect has had of those sexual encounters that you had with her. She said in the victim impact statement that she used to be a bubbly, confident person, but now she is really negative towards herself and towards society.
She lacks confidence in her work and she finds it hard to communicate with people. She doesn’t want to be around men. She is scared to trust them and she’s worried that it might happen again. Sometimes she feels like giving up completely and she attends counselling twice a week.
She says she usually just tells people that she is fine because she does not burden them, but at night when she goes to bed she thinks over these things and she’s scared. She says she’s tired all the time and some days she comes home from school and goes straight to bed.
So you see, Mr [Applicant], what effect these matters can have on a young girl and how difficult it can be for them to overcome what has happened to them and to find the ability again to trust people and to have proper relationships with men.
The Applicant did not commit any offences whilst in immigration detention, and so paragraph 11.1.1(1)(c) of Direction no. 65 is not applicable.
Regarding paragraph 11.1.1(1)(d) of Direction no. 65, the Applicant does not pass the character test under s 501(6)(a) on the basis of having a substantial criminal record as defined by s 501(7)(c), or on the basis of his offences being sexually based offences involving a child under s 501(6)(e). Consequently, paragraph 11.1.1(1)(d) of Direction no. 65 is not applicable.
Her Honour Schoombee DCJ noted in her sentencing remarks that the maximum sentence she could impose was 14 years imprisonment (G4, page 50). Her Honour stated that, “…there’s very little that can be said in mitigation of your sentence.” (G4, page 55). Her Honour sentenced the Applicant to four separate sentences of four and a half years to be served concurrently (G4, page 56-57). Her Honour commented that the Applicant’s offending was, “far too serious” to suspend his prison sentence, but imposed the concurrent sentences because she was “prepared to characterise these offences as being one episode of offending” because the offending was “quite closely connected in time because all of these offences took place within a few weeks of each other” (G4, page 57). Her Honour further stated that the Applicant would be eligible for parole after two and a half years (G4, page 57). Applying paragraph 11.1.1(1)(e) of Direction no. 65, the Tribunal considers that a sentence of four and a half years is significant and indicates the very serious nature of the offending. Indeed, as stated in Her Honour’s sentencing remarks, the Applicant’s legal Counsel “conceded that only a sentence of imprisonment is appropriate in your case and that is because your offending was very serious” (G4, page 56).
With respect to the frequency of the Applicant’s offending and whether there is any trend of increasing seriousness (paragraph 11.1.1(1)(f) of Direction no. 65), the Applicant committed four sexual offences against a minor between August 2012 and October 2012, having arrived in Australia in July 2012. These are his only offences. It cannot be said that there is any trend of increasing seriousness, but rather, his initial offending comprised serious offences.
Paragraph 11.1.1(1)(g) of Direction no. 65 requires the decision maker (in this instance, the Tribunal), to consider the cumulative effect of repeated offending. If a person has a lengthy criminal history of repeated offending, the Tribunal will sometimes conclude, depending on the facts and circumstances of the individual case, that the cumulative effect is to place a burden on the resources of police, corrective services and/or the courts, which result in costs that are ultimately borne by the tax payer. Some offences, such as property damage, result in economic costs to the community, including monetary losses and rising insurance costs. In the case of the Applicant, the Tribunal is of the opinion that he does not fall into this cumulative category. The Applicant was convicted of four counts of “Sexually penetrated a child over 13 and under 16” after a single trial by jury. These are the Applicant’s only offences. It could therefore not be concluded that the Applicant’s offending has had a cumulative effect, in terms of the burdens on resources and taxpayers described above.
Paragraph 11.1.1(1)(h) of Direction no. 65 requires the Tribunal to consider whether the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending. There is no evidence that the Applicant has provided false or misleading information to the Department.
Additionally, the offence was committed in Australia, and consequently, paragraph 11.1.1(1)(i) of Direction no. 65 is also not applicable.
Based upon the above discussion, the Tribunal finds that the Applicant’s offending is very serious and strongly weighs against the grant of a Protection Visa to him.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 11.1.2 of Direction no. 65)
A decision-maker should also have regard to the following principles, described in paragraphs 11.1.2(1) and (2) of Direction no. 65 as follows:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.
(2)In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
Paragraph 11.1.2(3) of Direction no. 65 further provides:
(3)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence from independent and authoritative sources on the likelihood of the non-citizen reoffending; and
ii. evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
iii. the duration of the intended stay in Australia.
(4)Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice (2013) 41 VR 359, [111];

[2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 Moshinsky J stated that, at [68]: “…there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a “rational and probative basis”.
Applying paragraph 11.1.2(3)(a) of Direction no. 65, the nature of harm to individuals or members of the community if the Applicant were to engage in further sexual offending against minors is serious. Such offending can have a devastating effect on vulnerable victims who may suffer physical and also long lasting psychological harms as a result. In her sentencing remarks Schoombee DCJ commented on these consequences

(G4, page 52):
The other problem that the courts often hear is that sexual abuse on such young girls normally or often has a long-lasting and destructive effect upon these girls’ capacity to trust others and to form relationships and upon their own sense of self-worth and sexual development.
With respect to the likelihood of the Applicant engaging in further criminal or other serious conduct, the Tribunal is required to take into account “information and other evidence from independent and authoritative sources on the likelihood of the non-citizen [Applicant] reoffending” (paragraph 11.1.2(3)(b)(i) of Direction no. 65). In her sentencing remarks Her Honour Schoombee DCJ indicated her doubt as to whether, and to what extent, the Applicant was at risk of reoffending. Her Honour commented that the psychologist found it difficult to assess the Applicant’s risk of further similar offending because he had denied the offending (G4, page 54-55). Her Honour stated (G4, page 56):
Your counsel has submitted that you’re not likely to reoffend again in this manner taking into account that you have now learned your lesson and have gone through the trauma of a trial. I’m not sure on what level there is still a risk that you might consider similar offences in the future and the psychologist was not able to provide much assistance in that regard.
Her Honour noted that the Applicant was diagnosed with post-traumatic stress disorder and depression after he arrived in Australia (G4, page 53 and 153). Her Honour noted that the psychologist thought that it was not likely that these conditions contributed to the Applicant’s offending. She did however note that these conditions “may lead to a negative self-worth and that it is [the conditions are] part of the background circumstances that pertained at the time that you committed these offences” (G4, page 55). Her Honour also noted that the Applicant did not have any substance or alcohol abuse problems

(G4, page 54).
The Applicant’s earliest eligibility date for parole was 12 December 2016 (G4, page 275). However, a letter dated 22 July 2016 from the Prisoners Review Board of Western Australia (PRB) indicates that the Applicant notified the PRB that he did not want to be released to parole (G4, page 255). The Applicant’s legal representative made submissions that this was because the Applicant wanted to complete the SOTP in prison (Exhibit A1, paragraph [28]; G4, page 254).
Medium Sex Offenders Treatment Program Report
The Applicant commenced the SOTP on 3 July 2017, and the program concluded on

18 September 2017 (Exhibit R5). The “Summary and Recommendations” section of the Program Completion Report from the Department of Corrective Services states that (Exhibit R5, pages 5-6):
[The Applicant] demonstrated a willingness to engage fully in the program, attending all sessions and presenting with an insightful attitude. Throughout the course of the program he was observed to make several significant treatment gains in the areas of unhelpful attitudes towards gender roles, intimacy and relationships, coping, victim issues and consent. He developed a robust self-management plan, indicating an awareness of his high risk situations and ways in which he will manage these should they arise in future.
Should [the Applicant] be released back into the Australian community, it is anticipated that his improved knowledge of consent in addition to his improved ability to emotionally communicate with his wife will be protective factors in regards to further offending. Additionally, [the Applicant] intends to engage with external supports in the community should he experience personal or marital problems in the future.
The following recommendations are offered for [the Applicant] to assist him to reduce his risk of reoffence [sic], should he not be deported to Zimbabwe.
·Adhere to SOMS requirements
·Adhere to Parole requirements
·Re-engage with Assets counselling to manage PTSD symptoms if required.

The end of the SOTP Completion Report contains the following administrative notation (Exhibit R5, page 6):

Treatment Assessment Outcomes “Required” in Current Stay

Status or Barrier

Writers Recommendation

Sex Offending Medium Intensity

Enrolled

Change status to “No Longer Required” as treatment needs have been met in completing this Program

Although the SOTP Completion Report states that the Applicant made “several significant treatment gains” in specified areas, and contains an administrative notation that treatment needs have been met (meaning that no further programs were required to be undertaken in prison), the SOTP Completion Report does not provide any assessment about the likelihood of the Applicant reoffending.
Subsequent to completing the SOTP, the Applicant was granted parole with a release date of 28 November 2017 (G4, page 269). One of the reasons for the grant of parole was: “Successful completion of the Medium Sex Offending Treatment Program (MSOTP) with reported positive participation and significant treatment gains in some areas of identified need.” The PRB also imposed a number of conditions to apply during the parole period including to have no direct or indirect contact with the victim and to have no unsupervised contact with female children under the age of 16 years.
Academic Opinion from Professor Hall
On 10 March 2017, the Applicant’s legal representative, Ms Copeland wrote to Professor Hall, an academic in the School of Law at Murdoch University who has expertise in criminology. Ms Copeland asked him to, “provide your opinion on [the Applicant’s] risk of reoffending as well as the impact the sexual offenders treatment program will have on his level of risk.” Professor Hall provided his opinion in a letter dated 23 March 2017

(G4, page 233). Professor Hall stated that he provided an opinion “as an academic who teaches and publishes in the field of criminal behaviour” (G4, page 233) because he was “no longer registered as a Forensic and Clinical Psychologist so I cannot give a professional opinion on that basis”.
Professor Hall has academic expertise which qualifies him to comment on the academic research concerning the risk of recidivism for certain sex offenders. Professor Hall stated that this research indicated that (G4, page 234):
…in general sex offenders are very low risk of reoffending. In the aggregate, the risk of reoffending over a 4 to 5 year period is around 13.7% and for child molesters specifically 12.7%. It is important to note that this is the aggregate figure and includes high-risk individuals characterised by persistent antisocial behaviour starting at a young age. Individuals who are persistent offenders and who commit sex offences distort the aggregate risk level for sex offenders meaning that low-risk offenders are a much lower risk than the figures noted above.
Professor Hall provided a relevant summary of the general effectiveness of the SOTP in reducing recidivism. He stated (G4, page 234):
As to the effectiveness of the Sex Offender Treatment Program I can advise that this program was developed with William Marshall, arguable [sic] the leading researcher on the treatment of sex offenders. The program is based thus on evidence of best practice. Offenders in this kind of program have been shown to have 37% less sexual recidivism than non-treated controls (footnote omitted).
Professor Hall did not meet with, or interview the Applicant, but gave his academic opinion that, based on relevant academic research, the Applicant did not appear to fit into this persistent antisocial category, and therefore concluded that, “we could be comfortable that [the Applicant’s] risk is substantially lower than the aggregate figure.” (G4, page 234)
There are several factors which, in the Tribunal’s opinion, affect the weight that can be given to Professor Hall’s opinion letter. At the time Professor Hall had provided his opinion, the Applicant had not yet commenced the SOTP. Consequently Professor Hall did not have the benefit of being able to compare his observations about the relevant academic research against observations specific to the Applicant made by the SOTP facilitators in the SOTP Completion Report.
The briefing letter to Professor Hall indicates that he was provided with limited information on which to base his opinion. The information provided to Professor Hall comprised three documents. Firstly, the sentencing judge’s remarks, and secondly, two reports (letters) which advocated for the Applicant. These were the reports (letters) requested by the Tribunal, as explained in paragraph 21 above. They comprised a letter from Dr Davies (Exhibit R4) which commenced by stating, “The purpose of this letter is to provide support for his application for a protection visa”, and concluded by stating that the Applicant “has a genuine fear” of political persecution if he were to be returned to Zimbabwe. The letter from Dr Davies also confirmed that the Applicant had been diagnosed with post-traumatic stress disorder and depression for which he was being treated with medication and counselling.
Professor Hall was also provided with a report (letter) from a “Counsellor/Advocate” at Asetts (Exhibit R3). This letter confirms that the Applicant self-referred for counselling on 25 June 2013, and at the time of the letter (14 April 2014) the Applicant’s counselling was ongoing. The letter confirmed that the Applicant suffered from symptoms of anxiety and depression which were “compounded by his fear of returning to Zimbabwe where he believes his life to be at risk”. In the Tribunal’s opinion, the provision to Professor Hall of these two letters which advocated for the Applicant is problematic because the letters are sympathetic to, and suggest a conclusion in favour of the Applicant.
Further, it does not appear from Ms Copeland’s briefing letter that Professor Hall was provided with the Tribunal’s Guideline for Person’s Giving Expert and Opinion Evidence (see Exhibit A7). Professor Hall did not provide any acknowledgment of a duty to provide impartial evidence to the Tribunal, and both Professor Hall and Ms Copeland are employed by Murdoch University. It is therefore unclear as to what Professor Hall understood his role to be in providing this opinion.
The Tribunal gives Professor Hall’s academic opinion that the Applicant falls into a category of being a low risk of reoffending some weight, but this weight is tempered by the reservations expressed by the Tribunal in the preceding paragraphs, and the fact that the opinion is an academic one that is based on general observations about research on sex offenders and recidivism, rather than a forensic one.
Forensic Psychological Assessment by Dr Coxon
The Tribunal has also considered the report by Dr Coxon dated 10 January 2019 (in Exhibit A6), and her evidence at the Tribunal hearing which was able to be tested under cross-examination. Dr Coxon’s report was based on a review of documentation provided by the Applicant’s legal representative, Ms Copeland, and a three hour interview with the Applicant at the Yongah Hill Detention Centre where the Applicant was detained (page 1 of Report in Exhibit A6).
Dr Coxon stated in her report that she is registered with the Psychologists Board of Australia. She has a Bachelor of Arts degree with Honours in Psychology, a Master’s Degree in Applied Psychology, has completed the course units for a PhD in Forensic Psychology, and has a Doctorate in Clinical Psychology. Dr Coxon further stated in her report that she is a fellow of the Australian Psychological Society and has worked at Royal Perth Rehabilitation Hospital, Graylands Psychiatric Hospital and the CRS Melville Head Injury Unit as a Clinical Psychologist over the past 33 years. She has been in private practice as a Clinical Psychologist since 1985 and as a Clinical and Forensic Psychologist since 1996. Dr Coxon also stated that over the past 33 years she has appeared in the Magistrates Court, District Court and the Supreme Court to give evidence as an expert witness. She has also undergone professional training in risk assessment, and reported that she had assessed and treated both perpetrators and victims of sexual abuse over the past 30 years. Consequently, Dr Coxon’s qualifications and experience make her well qualified to give an opinion to the Tribunal as to the Applicant’s risk of reoffending (page 2 of Report in Exhibit A6).
Dr Coxon confirmed a diagnosis of chronic moderate Post-Traumatic Stress Disorder for the Applicant (pages 10-13 and 15 of Report in Exhibit A6) which she attributed to the Applicant’s report of being sexually and physically abuse as a child by an aunt and other adult family members, as well as his report that he “witnessed his father being tortured, beaten and taken away” (page 11 of Report in Exhibit A6).
Dr Coxon undertook a personality assessment of the Applicant using the Personality Assessment Inventory (PAI). After applying this test, Dr Coxon reported that the Applicant’s Index scores of Malingering and Defensiveness were “not elevated”. Dr Coxon reported that the Applicant’s “Violence Potential” and “Suicidal Potential” scores were low which she stated indicated “that he has no intentions of self-harm or harming others” (page 10 of Report in Exhibit A6).
With respect to the Applicant’s likelihood of reoffending, Dr Coxon stated that she applied three methods of risk assessment to assess the Applicant’s risk of sexual reoffending. These were the Sexual Violence Risk-20 (SVR-20), the Risk for Sexual Violence Protocol (RSVP) and the Hare Psychopathy Checklist-Revised (HPCL-R) (page 13 of Report in Exhibit A6). After applying these tests, Dr Coxon provided the following “Risk Assessment Summary” (page 15 of Report in Exhibit A6):
In summary, on all the tests of Risk of Reoffending, [the Applicant’s] scores were scored within the low to very low range, suggesting that he is not likely to reoffend. The fact that he has undergone a sex offender program and continues to undergo counselling is a very positive sign. This indicates that he is genuine in his quest for rehabilitation treatment. He intends to extend his treatment which will further reduce the likelihood of him reoffending.
Dr Coxon went on to state the following under the heading, “Summary of Test Scores” (page 15 of Report in Exhibit A6):
[The Applicant’s] PAI [Personality Assessment Inventory] profile indicated that it was a valid representation of his personality and clinical factors. It revealed he was neither malingering, nor being defensive in his responses and was not at risk of violence or self-harm.
His elevated scores were mainly related to traumatic stressors from the past and feelings of being persecuted in the past.
An assessment for Post-Traumatic Stress Disorder revealed that he had chronic moderate PTSD from sexual and physical abuse from the past. His symptoms continue to bother him, even after more than 20 years.
Three risk assessments revealed that [the Applicant] would be of a low risk of reoffending. This is particularly so as he has already undergone a Sex Offender Program at Karnet Prison Farm and continues with counselling at the Yongah Hill Detention Centre.
After reviewing Dr Coxon’s report (in Exhibit A6) and the briefing correspondence sent to her (in Exhibit A7), the Tribunal had a number of concerns which were potentially relevant to the weight that the Tribunal could give to Dr Coxon’s opinion that the Applicant is a low risk of reoffending. These concerns were not alleviated by Dr Coxon’s evidence at the Tribunal hearing, and will now be discussed.
Firstly, it was unclear to the Tribunal as to whether Dr Coxon was, in part, advocating for the Applicant. In her evidence to the Tribunal at the hearing, when asked by the Tribunal as to how she understood her role and whether, for example she was a witness for the Applicant, Dr Coxon commented, “no, I don’t suppose I’m really witness for the applicant, I am just writing a report on my findings” (transcript, page 81). However, Dr Coxon confirmed that she did not have a copy of the Tribunal’s Guideline on Persons Giving Expert and Opinion Evidence, nor did she include a declaration in her report confirming any overriding duty to provide impartial assistance.
Dr Coxon was also provided with a copy of Direction no. 65 by the Applicant’s legal representative (page 1 of Report in Exhibit A6). She included a section at the end of her report in which she addressed each of the three primary considerations over approximately two pages which, in the Tribunal’s respectful opinion, are matters outside of Dr Coxon’s expertise. Additionally, Dr Coxon included the following three paragraphs as part of her discussion of “expectations of the Australian community”, which have little to do with the Applicant’s likelihood of reoffending (page 21 of Report in Exhibit A6):
Regarding non-refoulement and indefinite detention, the AAT found from their comprehensive investigations that there are substantial grounds for believing that if [the Applicant] were to be removed from Australia to another receiving country, there is a real risk that he would suffer significant harm.
As such, [the Applicant] engages the protection obligations outlined in Section 3G(2)(aa) [sic] of the Migration Act 1958, and Australia has non-refoulement obligations towards him.
If he is refused a Visa, he will face the prospect of indefinite detention; will be deprived of the opportunity to participate within his family as a husband and father, or contribute to the community of Western Australia using his newly acquired skills.
When asked by the Tribunal about where the information in those paragraphs came from, Dr Coxon responded, “I just asked him that question, “If your visa is refused, what will happen to you?”…and that’s what his response was” (transcript, page 83). It is the Tribunal’s opinion that these paragraphs, which contain legal references including references to the findings of the AAT with respect to the Applicant’s claims for protection, non-refoulement, and the Migration Act, were unlikely to have been described to Dr Coxon by the Applicant. It is more likely that the information was contained in the documentation provided to Dr Coxon by the Applicant’s legal representative.
A briefing email from the Applicant’s legal representative to Dr Coxon dated 3 December 2018, refers to the legal representative’s intention to send Dr Coxon the Applicant’s Statement of Facts, Issues and Contentions by the end of the following week. However the Applicant’s legal representative confirmed at the Tribunal hearing that it did not appear that she forwarded it to Dr Coxon (transcript, page 99).
At the Tribunal hearing, Dr Coxon referred to a further email from the Applicant’s legal representative that asked her to comment on a paragraph from the Respondent’s Statement of Facts Issues and Contentions (transcript, page 82). The relevant paragraph was paragraph 29 of Exhibit R2 which, in summary, is a submission to the Tribunal that “the Applicant’s claim to have gained insight into his offending should be treated with utmost caution.” The Applicant’s legal representative showed a copy of this email to Dr Coxon (dated 10 January 2019) to the Tribunal on the second day of the hearing. This email is of concern to the Tribunal because it raises some doubt as to whether a conclusion in favour of the Applicant was being suggested to Dr Coxon. Specifically, Ms Copeland stated the following in this email to Dr Coxon (transcript, page 100):
I understand that this is very late information, but just wanted to provide this to you before you finalise the report. It is surprising and concerning to us that the Minister’s lawyer are asserting the view that there is no evidence that his risk of recidivism has reduced and there is uncertainty regarding risk of reoffending.
At the Tribunal hearing, the Applicant’s legal representative advised that Dr Coxon responded as follows (transcript, page 98):
MS COPELAND: Then, she’s responded:
“Thank you for your email. I think my report will respond well to the contents of the most recent communication”.
It was more I just sent her a little part saying, “I’m worried that you’re not covering this”. And she responded saying, “It’ll be covered”.
The Tribunal accepts that Ms Copeland’s intention was to make sure that the report addressed this issue, however, in the Tribunal’s respectful opinion, providing an expert with part of a submission in this manner could be construed as suggesting that the expert should reach an opinion or a conclusion that was favourable to the Applicant. This construction is also supported by Dr Coxon’s response that her, “report will respond well”, that is, in a manner favourable to the Applicant.
The Tribunal also notes that Dr Coxon was provided with a copy of Professor Hall’s opinion. Indeed, on page 17 of her report, under the heading “recommended treatment” and the subheading, “Risk Principle”, Dr Coxon states, “… Professor Hall and I both consider [the Applicant] to be of low risk of reoffending…” In the Tribunal’s opinion, it would be preferable for Professor Hall’s opinion not to have been provided to Dr Coxon. It was not necessary information for her to review in order to compile her forensic report, and providing another opinion that the Applicant is a low likelihood of reoffending does tend to invite Dr Coxon to make a similar finding.
Additionally, Dr Coxon did not recall whether she was provided with a copy of the Applicant’s SOTP Completion Report but she stated that she knew the Applicant underwent sex offender treatment (transcript, page 81). As Dr Coxon was providing an opinion about the Applicant’s likelihood of reoffending, it would be relevant for her to review and comment upon the areas of concern for the Applicant identified in the SOTP Completion Report (see Exhibit R5, page 2). It would also have been relevant for

Dr Coxon to review and comment upon the Applicant’s treatment gains specified in this report (see pages 5-6 of Exhibit R5) to see for example, whether the Applicant had made further gains, or to comment on whether the Applicant had maintained and consolidated any of his treatment gains from the program.
Additionally, Counsel for the Respondent submitted (transcript, page 123) that it is difficult to make a direct comparison between the initial treatment assessment in 2016 of the Applicant being a “moderate risk of sexual reoffending” prior to the commencement of the SOTP (Exhibit R5, page 2) and Dr Coxon’s assessment in her report of January 2019 that the Applicant is a “low risk of reoffending” in a sexual manner (see Dr Coxon’s Report in Exhibit A6, page 15). This was because the treatment assessor in 2016 used the Static 99R test and the STABLE-2007. However, Dr Coxon used different assessments, as described in paragraph [79] above. The Respondent did not however, lead any evidence as to the differences between these tests and why they are not comparable, and as a consequence, the Tribunal is unable to draw the conclusion suggested by the Respondent. It is evident from the SOTP Completion Report that the Applicant did make gains from completing the program, however what was not stated in the SOTP Completion Report, as discussed above, was whether, and the extent to which, the Applicant’s likelihood of reoffending was reduced after completing the program.
Counsel for the Respondent further submitted that Dr Coxon’s report contained very limited reference to the acknowledged static risk factor of the Applicant’s own childhood sexual abuse, which Dr Coxon referred to in her oral evidence at the Tribunal hearing. In this regard, Counsel for the Respondent submitted that the report was somewhat deficient because it did not highlight that this fundamental risk factor was still present. Again, given the absence of any evidence in support of this submission, for example, evidence from an expert psychologist as to the significance of considering this static risk factor, it also cannot be accepted by the Tribunal.
Other factors

In her report, Dr Coxon noted that the Applicant has been undertaking psychological treatment and counselling on a fortnightly basis in Yongah Hill Detention Centre

(page 16, of Report in Exhibit A6). She also recommended that, should the Applicant be released into the community, he should undertake a group treatment program for sex offenders run by a leading Clinical Psychologist, Ms Christabel Chamarette which is based on cognitive behavioural therapy (page 19 of Report in Exhibit A6) followed by one on one counselling.
There is no evidence that the Applicant intends to attend Ms Chamarette’s program. However in his oral evidence to the Tribunal, the Applicant stated his willingness to seek help when necessary, to continue with counselling with a psychologist, and to continue with counselling through Asetts (transcript, page 21). The Applicant gave evidence that he attended counselling through Asetts whilst in the community, and also undertook counselling in prison through psychologists connected with the SOTP. He stated that currently, at Yongah Hill Detention Centre, he has counselling with a psychologist every second week, and with a psychologist every other fortnight (transcript, page 20). The Applicant’s continued engagement in counselling is a positive step, which (as was recommended in the SOTP Completion Report) may help to reduce his likelihood of recidivism. The Tribunal does note, however, that there is minimal evidence before it to confirm that the Applicant will continue with this counselling if he is released into the community, for example letters from Asetts or a psychologist confirming their acceptance of the Applicant for ongoing counselling.
The Tribunal also notes that, given the nature of the offences, that the Applicant will be required to comply with the SOMS reporting requirements for sex offenders in order to monitor him and to reduce his likelihood of sexual reoffending. This monitoring is likely to be a protective factor.
The Applicant also has supportive and pro-social family members including his wife, sister-in-law and brother-in-law. Each gave evidence in their statutory declarations and in their oral evidence at the Tribunal hearing as to their continued support for the Applicant. His family members can provide him with financial and emotional support. Additionally, the Applicant’s brother-in-law and sister-in-law are willing to offer the Applicant accommodation, and the Applicant’s wife and daughter already live with them (transcript, page 66). The Applicant’s friend would also be able to offer support to the Applicant. He has known the Applicant since 2012 where they met at work, attended the Applicant’s trial in its entirety and paid all of his legal fees (transcript, page 47). In his evidence at the Tribunal hearing, the Applicant’s friend stated that he would be able to offer the Applicant financial support as well as friendship and support as a father figure (transcript, page 49). Whilst having pro-social support persons in the community is positive and potentially protective, the Tribunal notes that the Applicant had the support of these pro-social persons at the time of his offending. However, a factor that does weigh in favour of the Applicant is that he appears to have made treatment gains in the area of emotional communication with his wife, as stated in the SOTP Completion Report, and which the Applicant and his wife also confirmed in their oral evidence to the Tribunal. These gains may assist to reduce the likelihood of the Applicant reoffending.
In his oral evidence at the Tribunal hearing, the Applicant was also able to demonstrate insight into his offending, and the impact that the offending had on his victim (transcript, page 20), as well as the detrimental impact his offending had on his family (transcript, page 21). Counsel for the Respondent submitted in closing that the Applicant did not accept that he had committed a serious crime until as late as 2017, around the time of the SOTP (transcript, page 118). The Applicant initially denied his offending and pled not guilty. The Applicant confirmed this timing in his oral evidence (transcript, page 37-38). The Respondent’s legal representative submitted that this timing was “…a critically important matter for the Tribunal to be cognisant of in assessing the risk of reoffending…” (transcript, page 118). The Tribunal observes, however, that despite the delay between the Applicant’s conviction and his acceptance of his behaviour as a serious crime, there is no doubt (as was acknowledged by Counsel for the Respondent) that the Applicant made treatment gains as a result of his completion of the SOTP. The problem for the Tribunal is that it is difficult to assess the extent of these gains in terms of the likelihood of the Applicant reoffending in the absence of a formal risk assessment of the Applicant being undertaken at the conclusion of the SOTP. Additionally, as noted above, the concerns expressed by the Tribunal about the expert evidence before it (Professor Hall, and particularly Dr Coxon) also made it difficult to assess the likelihood of the Applicant reoffending.
The Tribunal also notes that the Applicant has a number of letters of support from Acacia Prison staff (for example, G4, pages 242 – 249), which indicate his good prison behaviour and his willingness to participate in prison activities, educational certificates, and to offer peer support to other prisoners. Further, the Applicant’s Immigration Report by the Department of Corrective Services dated 13 July 2017 (G4, page 275-277), noted the Applicant to be polite, respectful, to abide by prison rules and interact well with other prisoners, and to have a “great work ethic”. The Applicant also completed numerous vocational certificates whilst in prison (G4, page 271-274), and was nominated for vocational student of the year for 2017 (G4, page 270). This information is to the Applicant’s credit and shows that whilst incarcerated, he attempted to avail himself of opportunities to better his career prospects. These opportunities may be protective, but whether they will be or not, remains to be tested if the Applicant is released into the Australia community.
With respect to other aspects of paragraph 11.1.2(3) of Direction no. 65, the Tribunal notes that following his term of imprisonment for the offences, the Applicant went into immigration detention and so he was not able to spend any time in the community subsequent to his offending (paragraph 11.1.2(3)(ii) of Direction no. 65).
The Tribunal also notes that, with respect to the duration of the intended stay in Australia, the Applicant intends to reside in Australia permanently (paragraph 11.1.2(3)(ii) of Direction no. 65) and that the type of visa being applied for is a Protection Visa (paragraph 11.1.2(4) of Direction no. 65). This permanency, as opposed to (for example) a short stay in Australia, exacerbates the concerns about the Applicant’s likelihood of reoffending because he will reside in Australia for an indefinite period of time if he is released into the community.
The Tribunal finds that there is a likelihood of the Applicant reoffending if he were permitted to remain in the Australian community (paragraph 13.1.2(2)(b) of Direction

no. 65). The issues with respect to the evidence of the Applicant’s likelihood of reoffending discussed above, including the lack of assessment of the Applicant’s likelihood of reoffending at the conclusion of the SOTP, and the issues that the Tribunal has identified with respect to the opinions of Professor Hall and Dr Coxon, raise some uncertainty surrounding the extent of the Applicant’s likelihood of reoffending, although it is likely to be between a low and moderate risk.
Finally, in accordance with paragraph 11.1.2(1) of Direction no. 65, the Australian community’s tolerance for risk becomes lower as the potential for harm increases, and the harm that would be caused by some conduct is so serious that any likelihood that it may be repeated may be unacceptable. The Tribunal is of the opinion that the seriousness of the potential harm to victims of sexual offending places the Applicant’s offending in this category. Consequently, even if it could be concluded that the Applicant’s risk of reoffending in a sexual manner was low, even a low risk would be unacceptable.
Based on the above discussion, on balance, this primary consideration weighs against discretion being exercised in favour of the grant of a Protection Visa to the Applicant.
Second primary consideration: The best interests of minor children in Australia affected by the decision (paragraph 11.2 of Direction no. 65)
Paragraph 11.2 of Direction no. 65 provides, in part:
(1)Decision-makers must make a determination about whether refusal is, or is not, in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant the visa is expected to be made.
…
Paragraph 11.2(4) of Direction no. 65 continues on to outline the factors that a decision-maker must consider when determining the best interests of a child:
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant’s daughter
The Applicant has a 7 year old daughter. The child is the biological daughter of the Applicant and his wife.
With respect to the nature and duration of the Applicant’s relationship with his daughter (paragraph 11.2(4)(a) of Direction no. 65), the evidence before the Tribunal suggests that the Applicant and his daughter share a close relationship. This includes the evidence from the Applicant’s wife in her statutory declaration (see G4, pages 229 – 232) and at the Tribunal hearing. In her statutory declaration dated 20 March 2017, the Applicant’s wife stated that the relationship between the Applicant and his daughter “has always been a very close one ever since she was born”; “they have a very special bond and he is a very important part of her life. He is always there for her”; and that the Applicant and his wife jointly raised their daughter from her birth (G4, page 229, paragraphs [8], [9], and [12]).
The following exchange during the Applicant’s wife’s examination in chief at the Tribunal hearing is relevant (transcript, page 56):
MS COPELAND: Can you talk to us about the relationship between CZCV and your daughter, [name omitted]?
APPLICANT’S WIFE: I’m kind of the bad cop, and CZCV is kind of the good cop. You know, mums and daughters always have problems, especially when she’s seven. She wants this, “I want to wear this, I want to wear that”. Sometimes I have to tell her, “No, [name omitted], this is not appropriate”, and what she does is, she runs and calls the dad, because now they Facetime they can Skype. She runs and calls the dad, “Oh, Mum’s not allowing me to do this”. Sometimes when I - when I’m busy they do homework together on first time, and she’s just like that, like, she can’t sleep, “Can I call Dad?”. That's what she does, “Dad, can you talk to me until I sleep? Then you can hang up after I’m sleeping”. She doesn't come to me. She calls the dad on Facetime. That's how their relationship is. She is - in other words, she’s comfortable at times to talk to him like, “Mum is not doing this”. She won’t tell me, “Oh, Mum, I don’t want this”. She just says, “Oh, I’m calling Dad”, because dad is kind of the good cop and that’s how it is.
The Applicant’s wife also gave evidence that the child prays for her father to come home (transcript, page 56):
Right now all she does, if you ask her to pray at night, when she prays, “Oh, thank you, god, for this day. Be with us. Thank you, god, for our family, and she’ll be just, like, “Dear god, can you make my dad come home, please”
…
Yes, as I said earlier, she always prays, even though they Facetime, “God, can you please make my dad come home?”. She’s only seven, and she prays that kind of prayer...
The Applicant also gave evidence at the Tribunal hearing that he speaks to his daughter every day through facetime (transcript, page 22). The Applicant’s sister-in-law also gave evidence about the strong bond between the Applicant and his daughter. For example, she also stated that the Applicant regularly helps his daughter with her homework via facetime, and that the Applicant’s daughter misses her father at school events and wants pictures to be taken so she can show her father if she wins a prize or participates in a sporting activity (transcript, page 62).
Due primarily to his imprisonment and subsequent immigration detention, the Applicant has only lived under the same roof as his daughter for less than a year (transcript, page 25). Despite this separation, the Applicant and his wife have tried to ensure that the Applicant can maintain his relationship with his daughter, and the evidence suggests that the bond between the Applicant and his daughter is very strong and that he does undertake, and is likely to continue to undertake a positive parental role in the future. For example, the Tribunal notes a letter from the Applicant’s wife dated 8 February 2016 addressed to the Minister (G4, page 79), asking that the Applicant be moved from Bunbury Prison to Karnet Prison so that her daughter could see her father regularly. The letter stated, in part:
My daughter has a special bond with her dad which is why we also have theses [sic] visits. Before she was approved to see him, she was a bit stressed and very restless and this was a difficult time for me. She would cry for him most of the time though they spoke over the phone. She was happy when she saw him for the first and now she is so much better. Though he in [sic] prison, she looks up to him as her dad. Their relationship is one that she listens to him [sic] than me at sometimes [sic]. With him far away would mean we would have to stop the visits or limit them which would also affect my daughter negatively. Karnet prison is nearer to us for visits…
The Tribunal further finds that, as the child is currently seven years of age, there are 11 more years until she turns 18, and she would benefit from having the involvement of her father in her upbringing (paragraph 11.2(4)(b) of Direction no. 65).
With respect to the impact of the Applicant’s prior or future conduct on his daughter (paragraph 11.2(4)(c) of Direction no. 65), the Applicant’s offending has had an indirect impact on his daughter in terms of her separation from her father. The Applicant’s daughter is not aware of his offending, but there is some evidence that the Applicant’s daughter suffered some distress when he was imprisoned. Her mother gave evidence that she would ask for her father and did not want to leave the prison when she visited him (G4, page 230, paragraph [17] and [20]). The evidence discussed in the preceding paragraphs also shows that the Applicant’s daughter misses him and wants him to come home.
Should the Applicant reoffend in the future, it may also have a negative impact on the child, who may face separation from her father again, and who may suffer psychological harm if she becomes aware of the nature of the offending.
With respect to the likely effect of separation from her father on the Applicant’s daughter (paragraph 11.2(4)(d) of Direction no. 65), the Applicant’s wife gave the following evidence at the Tribunal hearing (transcript, page 56):
… if he’s sent back to Zimbabwe, there will be that problem of communication between them because of the stability or Zimbabwe now, and she won’t have that go to person. Sometimes I’m so busy I have to deal with this, I have to deal with that. Sometimes I need a break. That's when she goes to her dad, and that won’t be there as well, and it will impact her negatively, maybe to a point where I also can’t handle it or to a point where I can’t help her, but that's what I think.
The following exchange with the Applicant’s sister-in-law is also relevant (transcript, page 62):
MS COPELAND: How do you think it would affect her if he was sent back to Zimbabwe?‑‑‑
SISTER-IN-LAW: It would really affect her so much. [Child’s name omitted], she's growing up, she's seven now. I know in the nearly future – even up to now, she always says, "Oh Daddy, but you said you're coming home tomorrow. Oh Daddy, for my birthday you said you are going to send me presents, but you sent Mum." So she knows that we're with Daddy, it's only a drive away to where I'm going to see you. Australia to Zimbabwe, it's like two planes going there. And – and in a way, I know it will affect her so much that she needs answers to know, "Why Daddy (indistinct) the internet, it's really bad in Zimbabwe." $2, it's a lot in Zimbabwe for you to – to buy airtime every single time to like, first time or to do what's a video calling. Some other people, they can't even – they can't even buy airtime like that. It's really bad. And even the network there, it's bad. So she's used to talking to Daddy every day. Of course she would want answers. How come today we cannot communicate? How come this time we are not going for that drive to go and see Daddy? So in a way that's going to affect her. That is going to affect Mum, because she was keep [sic] asking so many questions, and then she will keep asking, "How come it's now Daddy with those changes that are there?"
The Tribunal accepts that the continued separation from her father is likely to have a negative impact on his daughter. Although the Applicant and his daughter have been physically separated for some time, as noted above, they communicate on a daily basis, for example, via facetime. As also noted above, the Applicant often helps his daughter with her homework via facetime, and the Applicant’s wife and daughter visit him in immigration detention. Thus, if the Applicant is detained for an uncertain or indefinite period, it will negatively impact on his daughter. If the Applicant is returned to Zimbabwe, it is also likely have a negative impact on his daughter because of the quality of telecommunications and internet, which may impact on the frequency and quality of their communication.
The Applicant’s daughter’s mother has been fulfilling a parenting role in relation to his daughter who resides with her (paragraph 11.2(4)(e) of Direction no. 65). The Applicant’s wife and daughter reside with her sister (the Applicant’s sister-in-law) and brother-in-law who are likely to play a role in her upbringing.

Paragraph 12 of Direction no. 65 provides:
(1)In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)           International non-refoulement obligations;
b)           Impact on family members;
c)           Impact on victims;
d)           Impact on Australian business interests.
International non-refoulement obligations
Direction no. 65 relevantly states, in paragraph 12.1:
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2)The existence of a non-refoulement obligation does not preclude refusal of a non-citizen's visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the nonrefoulement obligation exists.
(3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s501 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa).
(4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.
(5)If, however, the visa application being considered for refusal is a Protection visa application, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them- sections 48A and 48B of the Act refer).
(6)In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person's Protection visa application were refused, they would face the prospect of indefinite immigration detention.
Australia owes protection obligations to the Applicant. This has been accepted by the Respondent (Exhibit R2, paragraph [34] and [37]). As noted above, on 1 June 2016, the Tribunal found that the Applicant met the complimentary protection criteria in s 36(2A) of the Migration Act (G4, page 176). Although the Tribunal did not accept that the Applicant faced a real risk of serious harm on the basis of his actual or perceived political opinion and past political activities if he were returned to Zimbabwe, the Tribunal found that there was a real risk of significant harm from the victim’s family in Zimbabwe (G4, page 196-198, at paragraphs [118] to [131]). The Tribunal did, however, comment that due to the Applicant’s political affiliations, the Tribunal was not confident that the police and law enforcement in Zimbabwe would offer effective protection (G4, page 197, paragraph [127]). Although the Applicant gave evidence at the Tribunal hearing that he would face political persecution due to his political affiliation if he were returned to Zimbabwe (see also Exhibit A5, paragraph [36]), there is no other evidence before the Tribunal to support such a conclusion.
As noted by the Respondent in Exhibit R2 (paragraph [35]), if the Tribunal were to affirm the Reviewable Decision, the Applicant would be liable to be removed from Australia due to the operation of s 198 of the Migration Act. Relevantly, s 197C(1) of the Migration Act provides that, “For the purposes of section 198, it is irrelevant whether Australia has
non-refoulement obligations in respect of an unlawful non-citizen.” Further, the Applicant would be liable to be held in immigration detention, pursuant to s 189 of the Migration Act, until he could be removed. He would not, however, face the prospect of indefinite detention, as was submitted by Counsel for the Applicant (see Exhibit A1, paragraph [57]). With respect to the effect of s 197C of the Migration Act, the Tribunal notes the following passage from North ACJ in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448 (DMH16) at [26]-[27]:
26. The argument for the Minister only needs to be stated to expose its weakness. The reference to indefinite detention must be read in a very different way to the words used in order to have them mean that the detention would be limited to the time taken for the Minister to consider the alternative management options. The Minister’s reasons disclose that he understood that if the protection visa application was refused, the applicant could be detained in Australia for an indefinite period. In fact, by the operation of s 197C, if the protection visa was refused the applicant would either be removed to Syria immediately, or, if the Minister decided to consider alternative management options, be detained for a definite period, namely, until the Minster considered whether to exercise the power under s 195A. Then if the Minister refused to exercise the power, the applicant would be removed to Syria.
27. That view of the Minister’s reasons is supported by the advice provided in the submission to the Minister at [73], which erroneously stated that s 197C does not abrogate, for the purposes of Australia’s domestic laws, Australia’s non-refoulement obligations assumed under international law. That is an incorrect understanding of the operation of s 197C in conjunction with an officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under s 198.
Thus, the consequences for the Applicant of these provisions of the Migration Act would be that the Applicant would be refouled, unless the Respondent decided to consider alternative management options, such as exercising the power under s 195A of the Act to grant the Applicant a visa. In the latter case the Applicant would be detained until the Minister considered whether or not to grant the Applicant a visa under s 195A. However, Exhibit R2, paragraph [36] states that the Minister is not presently considering the Applicant’s case for intervention under s 195A of the Migration Act.
In light of the decision in DMH16, there is a contradiction between the operation of s 197C of the Migration Act and the wording of paragraphs 12.1(2) and 12.1(6) of Direction no. 65. Paragraph 12.1(2) and 12.1(6) refer to the fact that Australia “will not remove” a non-citizen to a country in respect of which the non-refoulement obligation exists, and yet s 197C effectively provides that a non-citizen will be removed regardless of any non-refoulement obligations. This was discussed by Deputy President Forgie in PRHR and Minister for Immigration and Border Protection [2017] AATA 2782 at paragraphs [142]-[144]. Deputy President Forgie analysed how Direction no. 65 should be read by the Tribunal so as to be consistent with s 197C of the Migration Act as follows:
142. Since the enactment of s 197C, it is clear that the whole of the final sentences in each of paragraphs 12.1(2) and (6) are an incorrect statement of the law. To say, as paragraph 12.1(2) currently does, that Australia “will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists”, is not a correct statement of the law. If the circumstances set out in s 198 apply, s 197C imposes an obligation upon an officer to remove a non-citizen regardless of whether Australia has non-refoulement obligations in respect of him or her. For the reasons I give below, I think that omission of the two sentences is the preferable course to substituting words for those that appear because I have doubts whether Direction No. 65 can be read as if other words were inserted. In case my doubts are unfounded, I will now set out my reasons for concluding that reading cl 12.1(2) as if the word “might” or “may” appeared rather than the word “will” would not plainly solve the inaccuracy of the sentence.
143. To say that Australia “might not remove a non-citizen” in the circumstances described is, I suggest, capable of misleading the reader. The word “might” is the past tense of the word “may”. Whichever is chosen, both are capable of being understood in the sense of expressing permission. If that is the meaning in which they are understood, the amendment suggested to paragraph 12.1(2) would continue to be an incorrect statement of the law. The final sentence would indicate that Australia is not permitted – “may not” or “might not” – remove a non-citizen as a consequence of its non-refoulement obligations. If the word is used to express a possibility, the final sentence suggests that there is a possibility that Australia will not remove a non-citizen as a consequence of its non-refoulement obligations. To say that there is a possibility is true if the Minister is considering whether to exercise power under s 195A and if there were no country that would receive the non-citizen if removed from Australia. The qualifications are not apparent if that is how the word “may” is to be understood. Therefore, I suggest that it should be omitted.
144. The last sentence of paragraph 12.1(6) is incorrect when it begins with the statement that “Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations”. In view of s 197C, it is also incorrect to say that “... the operations of sections 189 and 196 of the Act means that, if the person’s Protection visa application were refused, they would face the prospect of indefinite immigration detention.” Therefore, I agree with the parties that the whole of the final sentence of paragraph 12.1(6) should not be included.
(Footnotes omitted and emphasis added.)
The Tribunal agrees with the opinion of Deputy President Forgie that the final sentences of paragraphs 12.1(2) and 12.1(6) should be omitted. This Tribunal also agrees with the following explanation given by Deputy President Forgie as to the legal basis for reading the Direction no. 65 in that way – that is, so that it does not exceed the statutory powers in the Migration Act (PRHR at paragraphs [153]-[155]):
153. Section 499(2) provides that s 499(1) does not empower the Minister to give directions that would be inconsistent with the Migration Act or with the Regulations. My finding that two passages are inconsistent does not render the whole of Direction No. 65 or even Part B of it null and void. As I have found that it is not a legislation instrument and as it cannot be characterised as rules of court, s 46(2) of the AI [Acts Interpretation] Act requires me to regard Direction No. 65 as if it were an Act of Parliament. Each of its provisions is to be regarded as a section of an Act and it is to be read and construed subject to, in this case, the Migration Act, and so as not to exceed the Minister’s power.
154. Section 46(2) of the AI Act provides:
“If any instrument so made would, but for this subsection, be construed as being in excess of the authority’s power, it is to be taken to be a valid instrument to the extent to which it is not in excess of that power.”
155. This is not a provision that authorises an instrument to be read as if it were rewritten with other words. It provides that, to the extent that it is not in excess of power, the instrument is to be taken as a valid instrument. This is consistent with the approach taken by the Full Court of the Federal Court in Tervonen. The two sentences can be excised from paragraph 12.1 of Direction No. 65 leaving statements that are within power.
(Footnotes omitted and emphasis added.)
As explained by the Respondent in Exhibit R2 (see also paragraph 12.1(5) of Direction no. 65) due to the operation of s 501E of the Migration Act, if the Applicant remained in Australia, he would not be permitted to make an application for another visa. As stated by s 501E(2)(a) of the Migration Act, he would not, however, be prohibited from making an application for a Protection Visa, but would only be able to do so if the Minister personally gave written notice under s 48B of the Migration Act to determine that s 48A, which provides that a non-citizen whose visa has been cancelled can only apply for particular visas, does not apply. The Respondent explained that the Applicant could only apply for a Bridging R (Class WR) visa after an invitation from the Minister (s 46(2) of the Migration Act and regulation 2.20A of the Regulations). Given that the Minister is not presently considering intervening under s 195A of the Migration Act, it appears unlikely that these other options, which require Ministerial intervention, will be available to the Applicant. Indeed, as noted in the Applicant’s Statement of Facts, Issues and Contentions (Exhibit A1, paragraph [59]), in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38, Buchanan J explained, at paragraph [131], that it was not open to the Tribunal to speculate:
The Minister did not, at the time of refusal, grant the applicant a visa under s 195A as he might have done. I do not think it is permissible to speculate, much less to proceed upon any form of assumption, that the Minister might change his mind or take a different course at some future time. Such possibilities or assumptions have no relevance to the applicant’s present position.
The Tribunal accepts the submission of Counsel for the Applicant (Exhibit A1, paragraphs [53] and [56]) that non-refoulement obligations are owed to the Applicant, and that the refusal of a Protection Visa would place him at immediate risk of refoulement if he were returned to Zimbabwe. Although these considerations weigh strongly in favour of discretion being exercised to grant a Protection Visa to the Applicant, they must also be balanced against those in the first sentence of paragraph 12.1(6) of Direction no. 65 which requires non-refoulement obligations to be weighed against the seriousness of the Applicant’s offending. As noted above, the Applicant’s offending was sexual offending against a 15 year old child, which, applying relevant provisions of Direction no. 65 is very serious. Taking these factors into account, on balance, the Tribunal finds that this other consideration weighs in favour of the Applicant.
Impact on family members
With respect to paragraph 12.2(1) of Direction no. 65, the Respondent accepts that if the Applicant’s Protection Visa is refused, that there would be a detrimental emotional impact on his wife and daughter who live in Australia (Exhibit R2, paragraph [38]). The Tribunal accepts the submission from Counsel for the Applicant that the Applicant’s wife is likely to suffer emotionally and financially if the Applicant is refused a Protection Visa. The Applicant’s wife and daughter reside with the Applicant’s sister-in-law and brother-in-law, who offer financial and emotional support in the absence of the Applicant, and so the continued absence of the Applicant is likely to cause them some hardship as well. Counsel for the Applicant further submitted that the Applicant’s daughter will suffer hardship because she will lose the opportunity of a meaningful relationship with her father. The Tribunal accepts these submissions, which are supported by the evidence before the Tribunal. For example, the Applicant’s sister-in-law has given evidence about the emotional impact on the Applicant’s wife, and the burden on her of being a single parent (Exhibit A3, paragraphs [14] and [17]). The Applicant’s wife also gave evidence about the impact of separation on the Applicant’s daughter (see, for example, G4, page 231, paragraph [38]), which was also discussed with respect to the best interests of the child above.
The Tribunal therefore finds that this other consideration, regarding the impact on family members, weighs in favour of the grant of a Protection Visa to the Applicant.
Impact on Australian business interests
There is no evidence before the Tribunal that a decision not to revoke the cancellation of the Applicant’s Protection Visa will have a relevant impact on Australian business interests (paragraph 12.4(1), Direction no. 65).
Impact on victims
This other consideration, in paragraph 12.3(1) of Direction no. 65, requires the Tribunal to consider the:
Impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where that information is available and can be disclosed to the non-citizen being considered for visa refusal.
The Respondent made the following submission in paragraph [39] of Exhibit R2:
The impact on the victim of the offending was extremely serious, involving physical violation of a child through unlawful sexual penetration as well as ongoing psychological harm. The victim was forced to undergo a trial by jury, including cross examination by the applicant’s defence counsel, as a result of the applicant’s decision to plead not guilty. The victim’s confidence and self-worth was severely affected, and she is scared to trust men. The victim’s experiences reflect the well documented impact of child sexual abuse including mental health problems (depression, anxiety), emotional issues (feelings of shame, guilt and low self-esteem) and effect on personal relationships (difficulties with trust and intimacy, lack of confidence).
(footnotes omitted.)
However, the wording of paragraph 12.3(1) of Direction no. 65 does not support the interpretation put forward by the Respondent in its submission. This is because paragraph 12.3(1) of Direction no. 65 refers to the impact of a decision to grant a visa on the victim. This can be distinguished from the harm that the victim suffered as a result of the Applicant’s offending (as described by the sentencing judge at G4, page 52) which is relevant to the seriousness of the offending. The Tribunal does not have any evidence before it as to the impact of a decision to grant the Applicant a Protection Visa on the victim, or the family members of the victim, and is therefore unable to make a finding with respect to this other consideration.
WEIGHT TO BE GIVEN TO THE PRIMARY AND OTHER CONSIDERATIONS
Direction no. 65 provides some guidance as to how a decision maker should apply the primary and other considerations and the weight to be given to them. Paragraphs 8(3), (4) and (5) are relevant here, and state:
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.

Counsel for the Applicant submitted that the other consideration of international non-refoulement obligations in particular, should be given “substantial weight” (Exhibit A1, paragraphs [47]-[48]), and indeed, should be treated as being a primary consideration (Exhibit A5, paragraph [39]). In support of this submission, the decision of a single Judge of the Federal Court of Australia, Colvin J in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 (Suleiman) was cited.
In Suleiman, His Honour Colvin J stated, at [23]:
The use by the Tribunal of the term 'secondary' indicates that the 'other considerations' are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non-refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
(Emphasis added.)
The sentence in Colvin J’s judgment which the Tribunal has added emphasis to above was cited by Counsel for the Applicant (see Exhibit A1, paragraph [48]). However, in the Tribunal’s opinion that sentence should not be read in isolation because, the preceding part of the paragraph gives context to His Honour’s comments. That is, in Suleiman, Colvin J held that the Tribunal erred by using the terminology “secondary considerations” instead of “other considerations” which, as His Honour explained above, fettered the weighing process which the Direction required the Tribunal to undertake, by indicating that the Tribunal regarded the other considerations as “secondary” and therefore always having lesser importance than primary considerations.
The decision in Suleiman was discussed by the Full Court of the Federal Court in Minister for Home Affairs v HSKJ [2018] FCAFC 217 (HSKJ), which concerned a Tribunal decision in which the Tribunal twice referred to other considerations as “secondary” considerations. In the Tribunal’s opinion, Colvin J’s comments in Suleiman should be read in light of the Full Court of the Federal Court’s comments in HSKJ. The relevant passage (from [30] to [35]) is as follows:
30. In our view the Tribunal’s reasons, read as a whole, do not reflect an understanding that “other” considerations must always be given lesser weight than primary considerations, or that this view prevailed when considering the international non-refoulement obligations owed to the respondent. This may be seen from the following matters.
31. First, at [96] the Tribunal considers its findings (at [95]) that the respondent assisted US military forces in Iraq in some capacity and faces some risk of harm if returned to Iran [sic] because of this association weighs to some degree in favour of revocation. It poses the question as:
[W]hether this finding in relation to what is an “other” or “secondary” consideration outweighs the Tribunal’s findings in relation to the primary considerations detailed above.
32. The reference to “secondary” in this context is ambiguous, because it may be synonymous with “other” or refer to an inferior consideration, but at [97], the Tribunal proceeds to observe that it “needs to weigh” these safety concerns with the “very strong” earlier identified (primary) concerns in relation to the seriousness of the respondent’s crimes, the risk of further offending and what this would mean for the Australian community. At [98] it goes on to note that the primary considerations in Direction 65 are normally given greater weight than “other” considerations and that the Tribunal finds “that the primary considerations here clearly outweigh this secondary consideration” (emphasis added). The reference to “normally” indicates that the standard that the Tribunal is applying is not one that inevitably gives lesser weight to the “other” or “secondary” consideration, but that normally one does so. That is not an inaccurate characterisation of Direction 65, which in section 8(4) provides that “primary considerations should generally be given more weight than other considerations”. The word “normally” indicates that the other consideration may sometimes not warrant lesser weight. Further, the finding that the primary considerations here outweigh the secondary consideration indicates a balancing exercise on the part of the Tribunal that would be redundant if it had considered that a primary consideration would always prevail over a secondary consideration.
33.This understanding of the Tribunal’s reasons is in our view supported by the language used at [104], where the Tribunal concludes in its consideration of the “strength, nature and duration of ties” that it is not convinced that “on balance” they outweigh the primary considerations identified earlier.
34. Further, in its conclusions at [119] – [124] (set out in full above) the Tribunal engages in a process that proceeds to weigh the “other” considerations, which it finds are in favour of revocation, against the countervailing considerations and concludes that on balance they do not “outweigh the other primary considerations” which are “generally afforded greater weight” (emphasis added). This language indicates that the Tribunal did not take the view that “other” considerations were always subservient to primary considerations.
35. Taken together, we consider that the ambiguity apparent from the twice used word “secondary” does not reflect the error that the learned primary judge considered had arisen. At this point we should note that we have not here been asked to consider in this context the correctness of Suleiman. Certainly if the Tribunal did regard a secondary consideration as incapable of outweighing a primary consideration then it would not, in that respect, be correct and her Honour’s agreement with that decision would equally have been correct. However, the contextual matters to which we have referred indicate that the Tribunal did not do so in the present case, as a result of which the appeal based on grounds 1 and 2 succeeds.
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so. Although His Honour Colvin J referred to an inquiry as to whether “other considerations should be treated as primary considerations”, the Tribunal is not of the opinion that His Honour was suggesting that other considerations could be elevated to be primary considerations as this would be against the structure and express provisions of Direction no. 65. When read in light of the Full Court’s comments in HSKJ, in the Tribunal’s opinion, it would be correct to state that although the Tribunal cannot elevate an other consideration to become a primary consideration, it can give greater weight to an other consideration over a primary consideration. The Tribunal has had regard to these principles in balancing the primary and other considerations in this decision, which are summarised in the conclusion below.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
Taking into account the above discussion regarding the weight to be given to primary and other considerations, and the Tribunal’s evaluation of each consideration throughout these reasons for decision, the Tribunal finds as follows:
(a)In relation to the primary considerations that the Tribunal must take into account under Direction no. 65, the findings that the Tribunal has made regarding the Protection of the Australian community (paragraph 11.1 of Direction no. 65) weigh strongly in favour of the Tribunal affirming the Reviewable Decision. The Applicant committed sexual offences against a child (a vulnerable member of the community) (paragraph 11.1.1(1) of Direction no. 65). Although the evidence with respect to the Applicant’s risk of reoffending (paragraph 11.1.2 of Direction no. 65) is inconclusive, it is likely that he is at a low risk of reoffending. However, given the seriousness of the potential harm that can result from sexual offending against a minor, any likelihood of it being repeated is unacceptable (paragraph 11.1.2(1) of Direction no. 65).
(b)Regarding the expectations of the Australian community (paragraph 11.3(1) of Direction no. 65), Direction no. 65 makes it clear that Australia has a low tolerance for persons who commit sexual offences against vulnerable members of the community, particularly when those offences were commenced within a short time after arrival in Australia. Consequently, the Tribunal found that this primary consideration weighs strongly in favour of the Tribunal affirming the Reviewable Decision.
(c)With respect to the primary consideration regarding the best interests of the Applicant’s daughter (paragraph 11.2 of Direction no. 65), the Tribunal has concluded that the best interests of the Applicant’s daughter are likely to be better served by the Tribunal exercising discretion in favour of the Applicant. However, it is the Tribunal’s opinion that this primary consideration is outweighed by the other primary considerations.
(d)The other consideration of non-refoulement also weighs in favour of the Tribunal exercising discretion in favour of the Applicant. The impact on the Applicant’s family, particularly his wife and daughter, also weighs in favour of the Tribunal exercising discretion in favour of the Applicant. However, in the Tribunal’s opinion, these other considerations are outweighed by the primary considerations of the protection of the Australian community and the expectations of the Australian community, which weigh strongly against the Applicant being granted a Protection Visa.
Having regard to all of the primary considerations, and the other considerations in Direction no. 65, the Tribunal is of the view that it would not be appropriate for the Tribunal to exercise discretion in favour of granting the Applicant a Protection Visa. The correct and preferable decision is to affirm the Reviewable Decision.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated
14 November 2018, is affirmed.

I certify that the preceding 168 (one hundred and sixty eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans

.........................[sgd]..............................................
Administrative Assistant Legal
Dated: 6 February 2019

Date of hearing: 17 & 18 January 2019

Representative for the
Applicant:
Solicitors for the Applicant:

Ms Anna Copeland

SCALES Community Legal Centre

Representative for the Respondent:
Ms Melinda Jackson

Solicitors for the Respondent:

The Australian Government Solicitor

*Treatment Assessment Outcomes “Required” in Current Stay*	*Status or Barrier*	*Writers Recommendation*
Sex Offending Medium Intensity	Enrolled	Change status to “No Longer Required” as treatment needs have been met in completing this Program

Date of hearing:	17 & 18 January 2019
Representative for the Applicant: Solicitors for the Applicant:	Ms Anna Copeland SCALES Community Legal Centre
Representative for the Respondent:	Ms Melinda Jackson
Solicitors for the Respondent:	The Australian Government Solicitor