Dacanay and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Dacanay and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 290 (25 February 2020)
Division:GENERAL DIVISION
File Number(s): 2019/8131
Re:Michael Kenneth Dacanay
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:25 February 2020
Place:Sydney

The Tribunal decides to affirm the decision under review.
........................[sgd]...........................................
Senior Member D. J. Morris
CATCHWORDS
MIGRATION – mandatory cancellation of Class BB Subclass 155 Resident Return (Permanent) visa – citizen of the Philippines – delegate decides not to revoke mandatory cancellation – applicant’s submissions to Tribunal – offending history – considerations under Direction No. 79 – primary considerations – other considerations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 499, 501, 501CA
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
SECONDARY MATERIALS
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature on 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention relating to the Status of Refugees, opened for signature on 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), as amended by the Protocol relating to the Status of Refugees, 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
DFAT Country Information Report – The Philippines – 21 December 2018 (Department of Foreign Affairs and Trade)
International Covenant on Civil and Political Rights, opened for signature on 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Migration Act 1958 – Direction No. 75 – direction under s 499 – Refusal of protection visas relying on section 36(1C) and section 36(2C)(b) (Commenced 7 September 2017)
Migration Act 1958 – Direction No. 79 – direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Commenced 28 February 2019)
Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, adopted and proclaimed by UN General Assembly on 15 December 1989, A/RES/44/128 (entered into force 11 July 1991)
REASONS FOR DECISION
Senior Member D. J. Morris
25 February 2020

Mr Michael Dacanay was born in 1992 and is a citizen of the Republic of the Philippines. He first arrived in Australia in October 2010 as a dependant on his mother’s spouse visa. In March 2016 he was granted a Class BB Subclass 155 Resident Return (Permanent) visa. That visa was cancelled on 5 March 2019 under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’). A delegate of the Respondent then invited Mr Dacanay to make representations as to whether there was another reason under s 501CA(4) of the Act that the mandatory cancellation of his visa be set aside. Mr Dacanay made representations to the delegate.
On 3 December 2019 the delegate decided not to revoke the mandatory cancellation of the visa. This decision not to revoke the cancellation of the visa is the matter that Mr Dacanay has brought to the Tribunal to review.
The hearing was held on 10 February 2020. Mr Dacanay was represented by an advocate, Mr Wayne Mooney, who is his stepfather. Mr Dacanay gave evidence and was cross-examined by Ms Jacinta Harris of Sparke Helmore Lawyers, representing the Minister. Other witnesses who gave evidence were Ms Ariane Dacanay, sister of the Applicant, and Mrs Cresenciana Borromeo, his aunt.
The Tribunal admitted into evidence a volume of documents (‘GD’) collated by the Respondent; a tender bundle of documents (‘TB’) and a supplementary tender bundle of documents (‘STB’), submitted by the Respondent. The Tribunal also admitted into evidence an undated clinical abstract from a hospital in the Philippines in relation to the Applicant (Exhibit A1); a Republic of the Philippines Death Certificate for Leonardo Lebumfacil, dated 17 November 2016 (Exhibit A2); and a written statement of Janet Boyle, Immigration Detention Centre Visitor, dated 29 January 2020 (Exhibit A3).
The legislative framework
Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or the Minister’s delegate) must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of sections 501(6)(a) and 501(7)(c) of the Act, and under section 501(3A)(b) of the Act the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of the Commonwealth, a State or a Territory.
Section 501CA(4) of the Act provides that a decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period, and the decision-maker determines that the Applicant passes the ‘character test’, or, as provided for under section 501CA(4)(b)(ii) of the Act, there is another reason why the mandatory cancellation decision should be revoked. The Respondent conceded that Mr Dacanay had made representations within the prescribed period.
If the Tribunal finds that Mr Dacanay fails the character test, the sole issue before the Tribunal then becomes whether there is another reason why the original decision to cancel the visa should be revoked. In undertaking this task, the decision-maker should examine the factors for and against revoking the cancellation and if satisfied that the cancellation should be revoked, the Tribunal must act on that view (see North ACJ in Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338, at [38]).
Evidence in relation to the character test
Before the Tribunal was an Australian Criminal Intelligence Commission Criminal History Check (GD, pp. 30-32) dated 14 February 2019. This records that Mr Dacanay was convicted by the Downing Centre Local Court of New South Wales on 5 December 2018 of the offences of Assault with act of indecency (4 counts); and the called up offence of Stalk/intimidate intend fear physical etc harm (personal).
At GD, pp. 33-37 was sentencing comments of Magistrate Grogin on 5 December 2018. In relation to the four counts of Assault with act of indecency, His Honour imposed an aggregate sentence of imprisonment of 15 months and set a non-parole period of nine months, to commence from that day. The Magistrate allowed a 25 per cent discount to the sentence for Mr Dacanay’s early plea of guilt. In relation to the called up offence (for which Mr Dacanay had received a bond at an earlier Court appearance on 23 January 2018), the Magistrate revoked the bond and applied a new Community Corrections Order for two years.
At GD, p. 119 was a departmental note dated 15 March 2019 by an officer of the Department of Home Affairs stating that the writer had contacted the sentence management section of Corrective Services in New South Wales and was advised that Mr Dacanay was on that date serving a sentence of imprisonment on a full-time basis at Glen Innes Correctional Centre in NSW.
Finding in relation to the character test
On the basis of this evidence, and because of the operation of sections 501(6)(a) and 501(7)(c) of the Act, the Tribunal finds that Mr Dacanay fails the character test in section 501(3A) of the Act.
The remaining task for the Tribunal is to determine whether there is ‘another reason’ why the mandatory cancellation of his visa should be revoked.
Direction No. 79
Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act. The Minister has made such a direction, Direction No. 79 (‘the Direction’). The Tribunal must, under section 499(2A) of the Act, comply with the Direction in considering this matter.
Paragraph 6.1 of the Direction states, in part:
6.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
The Direction includes the following principles at paragraph 6.3:
(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 women or children or vulnerable members of the community such as 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.
In deciding whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part C, which is divided into ‘primary considerations’ and ‘other considerations.’ The primary considerations in Part C are set out in paragraph 13(2) of the Direction. They are: ‘Protection of the Australian community from criminal or other serious conduct’; ‘The best interests of minor children in Australia’; and ‘Expectations of the Australian community’. Other considerations set out in paragraph 14(1) of the Direction are: ‘International non-refoulement obligations’; ‘Strength, nature and duration of ties’; ‘Impact on Australian business interests’; ‘Impact on victims’; and ‘Extent of impediments if removed’.
The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and 8(5) of the Direction).
The Applicant’s offending
Magistrate Grogin set out the salient facts of the offending in his remarks when sentencing Mr Dacanay. They are reproduced below, with the names of the victims redacted:
At 2.35am on 5 September 2018 the victim, it would appear is Ms [redacted], left work from the [redacted], she was an employee. She walked along Union Street heading towards Murray Street and she was texting her boyfriend while she was walking. The offender bumped into her around 84 Union Street and touched her on the inside of her right thigh, near her pelvic area. The victim turned around and saw the offender walking off in the direction of the [redacted]. The victim, who was already texting her boyfriend, sent a message saying, “I can’t tell if someone’s tried to grab my vagina or if they accidentally bumped into me.”
She continued to walk along Union Street, stopping at the pedestrian lights at the intersection of [redacted]. She crossed the intersection of [redacted] and started to walk across [redacted] Bridge. She was about three quarters from the end of [redacted] Bridge, that is the city end, when she felt the offender’s hand come from behind her and touched her on the inside of her thigh and grope her vagina and bottom. She felt his hand rub her vagina briefly. She stopped because she was in shock. She saw the offender walk back towards the [redacted]. She texted her boyfriend and said, “Okay, some guy really just grabbed my vagina and ass.” She was on the phone to police in tears.
The next offence occurred at 1.30am, once again in the early hours of the morning. This is on 7 September, two days later. The victim in this matter was a female called [redacted]. She was walking across [redacted]. As she walked across the bridge she saw the offender walking in the other direction and they made brief eye contact. She continued to walk across the bridge, the offender walked about five metres past her, turned around and walked back after her. He grabbed her from behind by his arms, he wrapped his arms around her arms, and then he placed his right hand on her vagina and used two of his fingers to rub the victim’s vagina from the outside of her jeans.
She turned around and faced him. He looked at her briefly before running off. She continued to walk across [redacted], the offender then turned back around and followed her. She was near the west side of the bridge when she heard footsteps coming from behind. He then reached around her and pulled her into his body and used his other hand to rub her vagina again. She hit him with her umbrella. She recognised him as being the same person who touched her a few moments before.
The third offence occurred on 19 September. The female victim has finished work and was walking through [redacted] at about 12.40 am, another in the early hours of the morning. She was making her way along Union Street, heading towards the intersection of Harris Street. She was walking on the north side of the footpath and she noticed the offender walk towards her. She was looking at her phone with her earphones in then she looked back up, she saw the offender about 15 metres from her. She looked down at her phone a second time and after several moments she felt a hand grab her on the vagina, causing her to feel pain. She looked up and saw the offender with his hand on her crotch. After several seconds he let go and continued walking as if nothing had occurred.
Police became involved, they spoke to him, they interviewed him. He made admissions to touching each of the three female victims on their vaginas without their consent. He said, “I wasn’t in the right mind at the time”. He made admissions that he carried those out with the intent of scaring the victims, which no doubt he accomplished. He committed the offences, according to what he said to the police, because he was bored.
He comes before the Court with a criminal record and that is a s 9 bond. He was placed on the s 9 bond based on the following facts. At 11.05am on 31 July 2017 […] He was parked. At that time the victim, who was a school student in full school uniform, walked past his car. As the victim began walking past the offender’s vehicle the offender tried to grab her attention, she kept walking. He then drove forward a short distance and stopped suddenly. He said to her through the open window, “I know you want this dick.” She continued to ignore him, but he pursued her. She phone [sic] her mum and her mum came and I will use the words rescued her. He denied the offence but it would appear pleaded guilty at a later time and was placed on a s 9 bond.
OPENING SUBMISSIONS
The Respondent submitted that, on the facts of Mr Dacanay being sentenced to a term of imprisonment of 12 months or more on 5 December 2018, he fails the statutory character test.
Ms Harris submitted that the conduct of Mr Dacanay was serious and his offending was of escalating severity, with a cumulative effect. She said that the risk to the community would be great if Mr Dacanay re-offends.
The Respondent submitted that Mr Dacanay has been assessed as being of ‘high risk’ of re-offending.
Mr Mooney, on behalf of the Applicant, submitted that Mr Dacanay had no past record of any offending before the first offence of which he was convicted in January 2018, for which he received a good behaviour bond. Mr Mooney said that the family believes that Mr Dacanay was not in a good frame of mind and drew the Tribunal’s attention to a psychological report after his first offence which found at the time of his first offending he was suffering from a mental health condition.
Mr Mooney told the Tribunal that Mr Dacanay was on medication for hepatitis B for life and that he has tuberculosis ‘in his system’. Mr Mooney said the Applicant did not seek to downplay his offences.
ORAL EVIDENCE
The Applicant
Mr Dacanay was asked about the first incident which occurred on 31 July 2017. He said he remembered parking and then calling out to a girl in school uniform and then driving forward and calling out a lewd suggestion to her.
He said that he remembered the police coming to his house and, when they asked about his movements on the day in question, Mr Dacanay said he was scared and didn’t tell them the truth, but he admitted the circumstances of the offending later.
Mr Dacanay was taken to a letter he sent to the presiding magistrate dated 15 November 2017 (STB, p. 259), in which he apologised for his actions on 31 July 2017 and said:
“I realize for a young woman this can be an extremely frightening situation to be put in and I have no excuses and nothing I say can change what has happened”.
Mr Dacanay confirmed that he pleaded guilty to the stalking and intimidation offence and received a two year bond to be of good behaviour.
Ms Harris then took the Applicant to the Criminal History Check (GD, p. 32) which records four incidents for which he went to Court in December 2018. Mr Dacanay said he did not remember all the details of the incidents.
In regard to the first offence, which took place on 5 September 2018, he said he didn’t remember what happened. He agreed that he bumped into the first victim and touched the inside of her right thigh. He agreed that the victim walked off and thought she wouldn’t be assaulted again but that he came up from behind her and touched her bottom and her vagina.
Mr Dacanay agreed that he had to follow the first victim for some distance through the streets in order to assault her a second time. He agreed that the victim would feel frightened and this was deliberate stalking less than a year after he had written to the magistrate in relation to the July 2017 offending.

In regard to the second offending, which occurred on 7 September 2018, two days later, Mr Dacanay agreed that he grabbed someone he didn’t know in the street and rubbed the victim’s vagina through her clothes. He said he remembered approaching this victim a second time but did not remember her hitting him with her umbrella.
In regard to the third offending, on 19 September 2018, Mr Dacanay agreed that the victim was walking along the street, looking down at her mobile phone, and he grabbed her vagina. After this random assault, Mr Dacanay said that he went back to the place where he worked and waited for his wife, who was yet to finish her shift.
Mr Dacanay said he remembered the police coming to his place of work on 20 September 2018 and being arrested. He said he was truthful to the police. Ms Harris asked the Applicant if he remembered saying to the police that he ‘intended to scare his victims and was bored’. Mr Dacanay said he wasn’t thinking clearly and couldn’t think of the proper words.
Mr Dacanay was taken to another letter he sent to the presiding magistrate, dated 1 October 2018 (TB, p. 22). In the letter he wrote: “I really meant no harm especially for ladies even though my actions say otherwise”. Mr Dacanay was asked why he wrote that he ‘meant no harm’, and the Applicant responded that he wasn’t thinking properly.
Ms Harris asked Mr Dacanay whether he had made deliberate choices to follow his victims and assault them again, but he did not respond.
Ms Harris then put to Mr Dacanay that he followed one victim, waited at traffic lights in order to follow her, and in so doing was undertaking a premeditated act intending to scare them, and that the statement he wrote to the magistrate on 1 October was therefore not truthful. Mr Dacanay agreed. He also agreed with the proposition that his actions escalated in seriousness.
Ms Harris asked Mr Dacanay about a police report relating to an incident on 5 November 2012 (TB, p. 77) where a female person was walking along a footpath and the driver of a silver Mitsubishi Lancer with provisional P1 registration was driving along, following her, and the driver then started yelling at the victim stating “Hey sexy, come over here” and gave multiple “fallacious [sic] gestures” to the complainant. The car drove off and a short time later returned and continued to follow the complainant. The report records that the person reported the incident to police.
Mr Dacanay said he did not remember following anyone in November 2012. When Ms Harris put to him that the facts are similar to the offence for which he pleaded guilty in 2017, the Applicant said he “was not really sure about this” report. The Tribunal directly asked him if he drove a silver-coloured Mitsubishi Lancer at the time with P plates, and Mr Dacanay said he did have such a vehicle then.
Mr Dacanay confirmed he was diagnosed with tuberculosis in May 2017 in the Philippines. He said that he had been feeling unwell in Australia before he travelled back to the Philippines for a wedding and was admitted to hospital soon after his arrival there. He said that he subsequently contracted hepatitis B in hospital in the Philippines.
Mr Dacanay said that, on his return to Australia, he was admitted to hospital in Sydney for about a month.
Mr Dacanay said that he is now cured of tuberculosis, after taking a course of medication commencing in 2017 for more than a year. He said he was not sure what medication he was taking in June or July 2017.
Mr Dacanay said that after his first offending his relationship with his wife was affected, and she was ‘a little bit mad’ with him. He said that his wife wanted to separate but then found she was pregnant. He said he agreed that problems in the marital relationship caused him to be frustrated. When asked whether he committed the offences because he felt sexually frustrated, Mr Dacanay said he was “not really sure”.
Mr Dacanay agreed with Ms Harris’s characterisation of his offending as deliberate, premeditated and targeted, but disagreed that the pattern of behaviour commenced with the reported incident in 2012.
Mr Dacanay said he did not agree with Magistrate Grogan’s view that he had a high risk of re-offending.
Mr Dacanay was asked why the Tribunal should not conclude that he is a threat to society. He responded that he has been thinking about his daughter, saying “I want to stop what is happening to me; I believe I can change”.
Mr Dacanay said that he requested when in prison to undertake sex offender courses but his sentence was too short; he said he did not know whether such courses are offered in immigration detention but had not inquired.
Mr Dacanay said that he first met his wife in 2008 and they commenced a relationship in 2009. He said he sponsored his wife to come to Australia from the Philippines around 2011 and they have lived together as a couple since her arrival. In terms of the current state of their relationship, Mr Dacanay said that he was trying to get back together because of their baby but that his offending was still on his wife’s mind. He said that his wife brings their daughter to visit him in immigration detention every week. Mr Dacanay was taken to a prison report dated 1 November 2018 (TB, p. 128) which stated:
His offending has significantly impacted their relationship, she is supporting him through the current court matter and then may decide to end the relationship with him….
Mr Dacanay said that his intention, if his visa is restored, would be to resume living with his wife, but agreed that his relationship with his wife may not continue.
Mr Dacanay told the Tribunal that he is currently subject to the NSW Child Protection Register (TB, p. 15) and this meant he had to tell the police the name and details of any child he has contact with.
The Applicant said that most of his family, except his father, are in Australia – his mother, his stepfather, his sister, his brother, and some cousins and uncles and aunts. He said he sees extended family members every week, and three married cousins who live in Australia about twice a month.
In regard to his tuberculosis, Mr Dacanay said he last saw a doctor about two or three months ago when he first entered immigration detention, had an x-ray and bloods were taken. He said he no longer takes any medication for tuberculosis because it is cured. In regard to his hepatitis B condition, Mr Dacanay said that he has taken Entecavir (an antiviral medication) since his diagnosis. He said he had undergone a CT scan when at Glen Innes prison and had been advised to keep taking his medication. In terms of his mental health, Mr Dacanay said he saw a counsellor when in detention once. He was referred to a clinical record dated 8 September 2019 of a health induction when he entered detention which relevantly states “Client is currently on treatment of Hep B. Denies any significant mental health history. Nil other medical concerns voiced”. Mr Dacanay was asked if he wanted to say anything about those notes, and responded he did not.
Ms Harris asked the Applicant about a statement in an undated letter he wrote in response to sentencing remarks (GD, p. 91) where he stated, in relation to the prospect of being returned to the Philippines:
I would also be subjected to threats and violence as people would try to extort money from me because I have family in Australia, this is very common in the Philippines.
Mr Dacanay said he did not have any documentary evidence in relation to this claim. He said that the purpose of his travel to the Philippines when he fell suddenly ill and was hospitalised was to attend the wedding of his wife’s sister. Mr Dacanay said that his wife’s brother was shot in late 2016 and his body was found in a river, saying “he was an engineer who earned a lot of money”.
Mr Dacanay said that he had undertaken a Certificate III in Commercial Cookery and had been working at a large commercial establishment for almost four years before he resigned owing to the charges brought against him.
Ms Ariane Dacanay
Ms Ariane Dacanay, sister of the Applicant, adopted a statement she had provided dated 12 April 2019 (GD, addendum).
Ms Dacanay said that it would be difficult for family members in Australia to support Mr Dacanay if he is returned to the Philippines because they have their own financial commitments here and would be unable to provide anything financially.
Ms Dacanay said that her brother had never been in any trouble with the police before he offended in 2017. She said her brother had not told her anything about his offending and what she knew, she had been told by their mother.
When asked whether she knew what the offending involved, Ms Dacanay responded “I know there was an incident in his workplace where he offended a couple of girls”. She said she had not been to Court on either occasion when Mr Dacanay appeared.
The Tribunal asked Ms Dacanay directly about a remark in her statement that the Applicant “sometimes got hallucinated”. She responded that this was her assumption because her brother would do things and not remember them and she therefore concluded that his medication was affecting him.
Mrs Cresenciana Borromeo
Mrs Borromeo, aunt of the Applicant, adopted a statement she had provided (GD, p. 95). It is not dated but the witness said she wrote it in 2019.
Mrs Borromeo said there had never been any problem with Mr Dacanay’s conduct growing up and that he was a respectful child and young man. She said she was aware that he had been convicted of criminal charges but not what they were. When asked directly by the Tribunal, Mrs Borromeo said she understood that the convictions were for “something like assault” but she did not know who Mr Dacanay had assaulted.
Mrs Borromeo said that she visited the Applicant when he was at Glen Innes prison and had also spoken to him a number of times by telephone.
CONSIDERATION OF THE DIRECTION
Primary consideration – Protection of the Australian community (paragraph 13.1)
The nature and seriousness of the conduct (paragraph 13.1.1)
The Direction requires the Tribunal to have regard to specific factors set out in paragraph 13.1.1.(1). The first two of these are:
The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.
This part of the Direction also requires decision-makers to take into account:
The frequency of the non-citizen’s offending and whether there is any trend of increased seriousness;
The cumulative effect of repeat offending.
In assessing Mr Dacanay’s offending, the Tribunal finds that it can be categorised as very serious, in terms of the Direction. In terms of his first offending, he decided to proposition a school girl in the street, knowing by her uniform her approximate age, in a manner that was intimidatory and would have been very frightening for her. There seemed to be no apparent motive to his behaviour other than to frighten a young stranger. He achieved that end.
Mr Dacanay was dealt with relatively leniently by the Court in relation to his first offence, it can be assumed because he pleaded guilty, expressed remorse and wrote an apology to the Court and directed to his victim. He was placed on a bond for two years on 23 January 2018, and knew he had committed to be of good behaviour.
Regrettably, only a little over six months later, Mr Dacanay offended again, and committed four offences in three separate instances, as outlined above. He had no regard for the commitment he made to the Court in January 2018 to be of good behaviour and reform his conduct.
The offending seems opportunistic in the sense that he was waiting around for his wife to finish her shift at the place they both worked, but not uncalculated, in that he deliberately followed his three victims and grabbed them intimately. All this offending occurred in the early hours of the morning and must have been greatly distressing to the victims involved. It is notable to the Tribunal that Mr Dacanay admitted that he followed two of the victims for an extended period in order to commit the indecent assaults. It was predatory behaviour.
Although Mr Dacanay suggested to the Tribunal that his explanation to the police that he was ‘bored’ was not the right word to use, he did not proffer any other explanation as to his conduct. Mr Mooney submitted that, at the time, Mr Dacanay was fatigued, because he was working a long shift and then had to present himself to a hospital several times a week to be administered his tuberculosis medication, but to the extent that there is any suggestion that medication which the Applicant was taking had an effect on him that affected his criminal conduct, that is rejected by the Tribunal. There is no evidence to support this supposition.
Mr Dacanay was vague in his responses to questions under cross-examination and from the Tribunal. It may be accepted that he is embarrassed about his offending, but he also gave the impression of being somewhat evasive or, at least, less than candid.
In regard to the Respondent’s suggestion that the Tribunal should consider the 2012 report provided by NSW police in response to a summons, the Tribunal does not take that report into account. The police report is redacted in that it does not name the alleged driver of the vehicle, the complainant, or the registration number of the vehicle. Mr Dacanay agreed he drove a car of the colour and make as mentioned in the report but denied remembering this interaction. The incompleteness of the material means it is insufficient for the Tribunal to have any regard for this 2012 report as being probative. It plays no part in the Tribunal’s findings.
What does play a part is that Mr Dacanay committed four indecent assaults on young women who were merely making their way home from work in the city, late at night. They were entitled to feel, and be, safe from this gratuitous conduct. As sexual crimes against women, the offending is viewed by the Tribunal at the serious end of the spectrum.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2)
The Direction requires me to have regard, cumulatively, to the nature of harm to individuals or the Australian community should Mr Dacanay engage in further criminal or other serious conduct, and the likelihood of him engaging in further criminal or other serious conduct, taking into account available information and evidence.
The Tribunal notes, from the various reports in the papers before it, that Mr Dacanay’s behaviour in both prison and detention has been assessed as continually good, which is to his credit.
The Tribunal had before it a NSW Department of Corrective Services case note report dated 26 November 2018 (TB, pp. 35-36). Noting that this report was undertaken on papers only and there was no interview by the assessor of Mr Dacanay, the report relevantly states:
ASSESSMENT OF RISK
The convictions relate to offences committed by Mr Dacanay whereby he repeatedly approached three adult female victims on three separate dates, groping them in a sexual manner.
Mr Dacanay’s risk of sexual offending was assessed using the Static 99R, an actuarial risk assessment tool. Mr Dacanay’s total score on the STATIC-99R was 6. This places Mr Dacanay in the WELL ABOVE AVERAGE risk category relative to other male sexual offenders. This score was accounted for by Mr Dacanay’s young age, and the victims being both unrelated and strangers to him. Mr Dacanay has a prior conviction of Stalk and Intimidate intend fear, physical harm. This offence involved the stalking of a female victim of school age. The facts imply that the offence may have been sexually motivated e.g. sexual comments were made by Mr Dacanay to the victim. Mr Dacanay therefore received a score for having a prior sexual offence conviction and a prior violence conviction as well, a score for having a non-contact sexual offence conviction.
Later in the report, the assessor wrote:
When discussing the reason for his offence with the Community Corrections Officer (CCO), Mr Dacanay stated that he did not know why he did it. He stated that he was feeling stressed and depressed at the time, citing relationship problems with his wife as a factor. Mr Dacanay referred to having sleep and health difficulties at the time of the offending and presently. As noted by the CCO, he appeared to have a limited understanding as to the impact of his offending upon the victims.
I note that the assessor recommended Mr Dacanay undertake a sexual offender programme but that such programmes are generally limited to prisoners serving a sentence of at least two years, and Mr Dacanay’s evidence that he was therefore not offered a place in such a programme.
There was a subsequent sentencing assessment report of the same date, 26 November 2018, which was prepared after interviews with Mr Dacanay, contact with his wife and mother, and a home visit. In that report, the Community Corrections Officer stated:
Insight into impact of offending
Mr Dacanay accepted limited responsibility for the offence, and demonstrated little understanding of the impact his offending had on the victims. He reported that he does not remember the offences, and attributed it to his mental health and intimacy issues within his relationship at the time.
Mr Dacanay also demonstrated little insight of how to prevent further offending behaviour, as he was only able to identify the need to care for his daughter. He was unable to display empathy for the victims, which was demonstrated by his comment “I don’t know how they would feel”.
In terms of risk assessment, the writer of this sentencing assessment report stated that (TB, p. 85):
Mr Dacanay has been assessed at a Medium-Low risk of reoffending according to the Level of Service Inventory – Revised (LSI-R).
Community Corrections has overridden the offender’s overall risk of reoffending to T3/High because of the assessment of well above average risk on the STATIC 99R, an actuarial risk assessment tool.
Taking these assessments and the nature of the responses the Applicant gave at this hearing together, I am unconvinced that there is anything other than a real risk of Mr Dacanay re-offending, and possibly re-offending in the same manner. Regrettably, he seemed unable to grapple with the details of what he did and why it was fundamentally wrong.
To the extent that it is suggested that Mr Dacanay’s offending may be attributed, or may be partly attributed, to a mental health condition, the Tribunal notes that he underwent a psychological assessment on 9 January 2018, prepared for the purposes of his appearance in Court in relation to the first offending. Ms Mary Bonich, psychologist, administered a psychometric assessment and wrote in her report about the period after the Applicant’s hospitalisation in the Philippines and return to Australia and re-hospitalisation at a hospital in Sydney, for a total period of a month (STB, p. 270):
Mr Dacanay left the Philippines and was admitted to [named] hospital, spending 15 days in the intensive care unit and 15 days on the ward. During this time, Mr Dacanay’s mental health started to deteriorate with the symptoms he described as meeting criteria for a major depressive disorder with anxious distress (DSM-V). Mr Dacanay was subsequently discharged and instructed to be on bedrest for 3 months, during which time his mental health continued to deteriorate. Mr Dacanay did not seek any treatment for his mental health condition as he did not want to put additional stress on his family.
Ms Bonich then wrote (STB, p. 271):
Psychometric Assessment:
Mr Dacanay completed The Depression, Anxiety and Stress Scale (DASS-21), a quantitative, reliable and valid measure of distress, useful in providing an assessment of disturbance in individuals. Mr Dacanay’s responses indicated he was not experiencing any major mood disorder difficulties, which was consistent with his presentation during the assessment interview.
Opinion/Summary/Cause and effect explanation:
Mr Dacanay gave a psychologically coherent account of his history. He comes from a supportive and close-knit family and does not have a history of mental health issues outside of the context of his physical health conditions during the period he was unable to work as indicated above.
Mr Dacanay suffered from major depressive disorder with anxious features during the period May 2017 to September 2017 following his hospitalization and bedrest. Mr Dacanay expressed remorse, guilt and shame about his actions at the time of the offence.
…
At the time of the offence, Mr Dacanay met the criteria for Major Depressive Disorder with anxious distress signals single episode with severe features (DSM-V 296.23 (F32.2)).
As at the date of this report, Mr Dacanay no longer meets criteria for Major Depressive Disorder with anxious distress.

Ms Bonich’s report to the Court is dated 22 January 2018. Although the Tribunal notes that she is a psychologist with an endorsement in organisational psychology and not a clinical psychologist, appropriate weight should be given to her professional opinion, given that she has relevant expertise and personally examined Mr Dacanay.
If the Tribunal accepts Ms Bonich’s diagnosis, it would seem appropriate to characterise Mr Dacanay’s mental health condition as an ‘episode’ and therefore an episodic condition which manifested but has since resolved. It is understandable that he might have been depressed after suddenly contracting tuberculosis and having to be hospitalised rather than attend, as he and his wife had planned, a happy family event – his sister-in-law’s wedding. Compounding this would be his contraction of hepatitis B in hospital, and then his return to Australia and a further long hospital stay and then confinement to bed. However, Ms Bonich’s assessment is that the Applicant, as at late January 2018, no longer had the symptoms manifesting the mental health condition she diagnosed.
Factually, Mr Dacanay then went on to commit four more sexual offences against young women in the street at a time when he was no longer confined to bed, had re-commenced his employment and had the family joy of a new-born daughter.
This combination of seriousness of the sexual offending and the risk of re-offending leads the Tribunal to find that this primary consideration weighs against revoking the mandatory cancellation of the visa, and relatively heavily so.
Primary consideration – Best interests of minor children in Australia affected by the decision (paragraph 13.2)
The Direction requires the Tribunal to make a determination as to whether revocation is in the best interests of any relevant minor children. If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The first relevant child in this consideration is the Applicant’s infant daughter, AD. AD was born in June 2018 and is an Australian citizen. Mr Dacanay confirmed in evidence that he entered custody on 5 December 2018 at the conclusion of his sentencing hearing and remained in prison until 4 September 2019 when he was released but immediately then entered immigration detention.
There was evidence before the Tribunal that the Applicant’s wife has visited her husband regularly while he was in prison and that she has taken their daughter to see him every week since he has been in immigration detention.
While AD was only six months old when her father was taken into custody, the parental relationship has been maintained, even with the geographical disadvantages. The Tribunal accepts the submissions from Mr Mooney that Mr Dacanay is a loving father to AD and the Respondent did not challenge his submissions about AD’s interactions with Mr Dacanay when she visits him.
The Tribunal must take into account the fact that there are legislative measures in place at present relating to reporting arrangements to which Mr Dacanay must adhere, but also notes the evidence that it would appear that the relevant child protection authorities have ceased any supervisory role. The Tribunal does not necessarily accept the Respondent’s written submissions that “given the applicant’s conduct to date and likely risk of reoffending, the Tribunal should not be satisfied that the applicant will play a positive role in his daughter’s life”. I note that Ms Harris in her oral closing submissions for the Minister submitted that it is in the best interests of AD that the visa cancellation be revoked.
In respect of AD, the Tribunal finds that it is in her best interests that Mr Dacanay’s visa be restored.
Other minor children in Australia that the Applicant nominated as relevant in his personal circumstances form received by the Department of Home Affairs in April 2019 (GD, p. 97) are five cousins once removed, two step-nieces and one step-nephew. The Tribunal notes that, before he entered custody, Mr Dacanay said that he had regular contact with some of these children and semi-regular contact with others of them. The Tribunal also notes that in Mr Dacanay’s personal circumstances form (GD, p. 51), he records that his brother and the brother’s fiancée were expecting their first child in July 2019. That child, having been born, could come into the category of being a relevant minor child. However, because of his or her very young age and the fact that the Applicant has been in custody since before the child was born, the effect on this infant child of Mr Dacanay’s location would seem to not be significant.
The Direction requires the Tribunal to take into account whether other persons fulfil parental roles in relation to relevant minor children, and that is the case for all of the children in this category. However, the Tribunal accepts, on the material before it, the evidence of Mr Dacanay and the submissions of Mr Mooney, that the Applicant has a relatively close relationship with these children in the context of his extended family in Australia. The evidence was that the Applicant sees them at extended family gatherings which are held regularly. The Tribunal accepts that they would miss the Applicant if he was repatriated, and the older of them would miss him relatively more. The Tribunal also accepts that, because of their young ages, it would be unlikely that they could have personal contact with him if he was not in Australia, until they are old enough to travel to the Philippines, which may be many years hence.
In respect of this second group of minor children, the Tribunal finds that it is in their best interests that the Applicant’s visa be restored, but the weight of that is diluted because he does not fulfil a parental role in their lives.
Overall, notwithstanding the possibility that the Applicant’s marriage may come to an end which may have a separate effect on his access to his daughter, the Tribunal finds that this primary consideration weighs in favour of revoking the mandatory cancellation of the visa.
Primary consideration – Expectations of the Australian community (paragraph 13.3)
The Direction states, at paragraph 13.3(1), as follows:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
FYBR v Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’) provides guidance to decision-makers as to how this primary consideration should be approached. In that case, the Court was considering the superseded Direction No. 65, now replaced by Direction No. 79, but the wording of the relevant paragraph in the current Direction is relevantly the same.
In FYBR, the majority (Charlesworth and Stewart JJ) held, in separate judgments, that this part of the Direction expresses a ‘norm’. Decision-makers should not make their own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed – they are what the executive government has declared are its views, not apprehensions, presumptions or values that may be somehow ascertained or gleaned by some other independent evaluative process.
In FYBR, Stewart J stated, at [100]-[101]:
To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:
·non-citizens will obey Australian laws when in Australia;
·it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere.
·in a particular case, the refusal of the visa may be appropriate simply because of the nature of the character concerns or offences is such that they should not be granted a visa.
Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive”.
(Emphasis added.)
His Honour went on to state (at [102]) that the character assessment, even through the prism of community expectations, may not be decisively against an Applicant, which is why the decision-maker must assess what is ‘appropriate’ in the particular circumstances.
The Respondent submitted that, in the light of Mr Dacanay’s frequent offending and the potential consequences of further offending, the Australian community would say that he has forfeited the privilege of staying in Australia and should not hold a visa.
The Tribunal considers that the circumstances of the offending, as set out above, lend themselves to fit the description that they are serious breaches of the law, particularly the group of indecent assault offences. The first offence was, of itself, of lesser seriousness but takes on a more serious complexion because it was called up by the Court on the basis that the offender had paid no heed to the good behaviour bond imposed by the Court and had then gone on to offend, in a more serious way, in a relatively short space of time.
The Tribunal finds that this consideration weighs against revoking the mandatory cancellation of the visa, and relatively heavily so.
Other considerations
International non-refoulement obligations (paragraph 14.1)
The Direction reminds the Tribunal of Australia’s obligations not to forcibly return, deport or expel a person to place where they will be at risk of a specific type of harm. The Direction refers to Australia’s non-refoulement obligations under three treaties: the 1951 Refugee Convention, the Convention against Torture, and the International Covenant on Civil and Political Rights.
Mr Dacanay has made a claim that he would be subjected to threats and violence as people would try to extort money from him because he has family in the Philippines. When asked in cross-examination whether he had any proof behind this claim, he did not advance any. In respect to the tragic death of his brother-in-law from gunshot wounds (Exhibit A2), Mr Dacanay said that he died because he was an engineer and ‘had a lot of money’. There was a conflicting submission from Mr Mooney on this point in his closing submissions. Mr Mooney said that the late Mr Lebumfacil was not, in fact, wealthy. Whatever the reason for this violent death, this fact does not seem to me, in the absence of any corroborative evidence, to have any link with any claimed personal vulnerability Mr Dacanay may face if repatriated.
The Tribunal notes from the movement record (GD, pp. 106-107) that Mr Dacanay, since arriving in Australia in 2010 has travelled out of Australia on five occasions. He told the Tribunal that each of these trips has been back to the Philippines. From November 2011 to January 2012 he returned to the Philippines for a period of one month. From January 2013 to February 2013 he returned there for a period of one month. From April to May 2015 he returned to the Philippines for one month. From 30 April to 20 May 2016 he was also in the Philippines, a period of three weeks. From 22 May to 4 June 2017 he was in the Philippines, this was the visit for the purpose of his sister-in-law’s wedding, where he was hospitalized. There is therefore clear evidence before the Tribunal of regular and lengthy travel back to the Philippines since Mr Dacanay settled in Australia at the end of 2010.
The DFAT Country Information Report – The Philippines (dated 21 December 2018)(TB, p 195) states:
Conditions for Returnees
Many thousands of Filipinos enter and leave the country every day, especially for work abroad. People who return to the Philippines after several years’ absence are unlikely to face adverse attention on their return on account of their absence, with the exception of those involved in international crime or terrorism.
Mr Dacanay confirmed during his oral evidence that he has had no involvement in drugs or terrorism offences, and there is no evidence of him having any involvement in international crime.
Although Mr Dacanay has made claims that he might be targeted for attention or even extortion because he has returned from Australia, these claims were somewhat nebulous and he agreed in his evidence he had no documentary evidence to support them. There is a paucity of evidence before me and the content of the DFAT country information report (which relevantly is prepared to represent the ‘best judgement and assessment’ of the situation in a country and specifically prepared to assist decision-makers considering applications for protection visas) does not corroborate the assertions the Applicant has made. The fact that Mr Dacanay has regularly returned to the Philippines over the last 10 years and reports no instances of attention by criminal or unsavoury elements lends support to this conclusion by the Tribunal. Accordingly, I am not satisfied that the content of the claims Mr Dacanay has made rise to the level that would enliven Australia’s non-refoulement obligations.
Some of the claims made by the Applicant relate to the costs of health care in the Philippines and other services that are available there, and to financial pressures Mr Dacanay may face if repatriated. These claims would more properly be addressed in terms of the extent of impediments he would face if repatriated to the Philippines.
The Tribunal finds that this consideration weighs neutrally in this assessment.
The Tribunal notes that it is open to the Applicant to apply for a protection visa, and if he does so, such an application would be likely to be considered by a decision-maker who is required to take into account the provisions of a ministerial direction, Direction No. 75. That direction requires that, where an application for a protection visa raises character concerns, a decision-maker must follow a certain stipulated order, relevantly to assess refugee or complementary protection claims before considering any character concerns.
Strength, nature and duration of ties (to Australia)(paragraph 14.2)
The Direction requires the Tribunal to have regard to how long a person has been in Australia, noting that less weight should be given where the non-citizen began offending soon after arriving in Australia and more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
Mr Dacanay arrived in Australia to settle in 2010. His first criminal conduct which led to a conviction took place in July 2017. While his offending did not begin ‘soon after arriving’ in Australia in terms of the wording of this part of the Direction, it is also fair to say that he had not been in this country for a substantial period when he did first offend.
It was not disputed by the Respondent that Mr Dacanay held gainful employment as a chef for around four years. The Tribunal notes that he has undertaken a number of educational courses in Australia, including a Certificate III in Spoken and Written English conferred in 2011 (GD, p. 99), a first aid course in 2015 (GD, p. 100) and, as referred to above, a Certificate III in Commercial Cookery, conferred in February 2016 (GD, p. 101-103). This employment and education history is to his credit.
The Respondent in his written submissions also conceded that Mr Dacanay has strong family ties to Australia, being the father of an Australian citizen child and married to a Philippines citizen who is a permanent resident of Australia. Mr Dacanay’s stepfather is an Australian citizen. The Tribunal notes that the Applicant’s brother who lives in Australia was, at the time he submitted his personal circumstances form in early 2019, shortly to be married and that his brother’s fiancée is pregnant with their first child (GD, p. 12). The child was due in July 2019. The Applicant also provided a list of ten other family members who are Australian citizens (GD, p. 96).
Before the Tribunal were several letters of support from members of Mr Dacanay’s direct and extended family, including his wife, his mother, his stepfather and his aunt (GD, pp. 92-95). In particular, the Tribunal notes that the Applicant’s wife states that ‘it will be devastating for our whole family’ if the Applicant is not allowed to stay in Australia.
Notwithstanding there is somewhat mixed evidence about the likely course of his future relationship with his wife, the Tribunal is satisfied on the written evidence, and the oral evidence from Ms Dacanay and Mrs Borromeo, that there would be a significant emotional impact on both the Applicant and his family if his visa remains cancelled.
The Tribunal finds that this other consideration weighs in favour of revoking the mandatory cancellation of the visa.
Impact on Australian business interests (paragraph 14.3)
The Tribunal must consider the effect on Australian business interests if a person’s visa cancellation is not revoked, noting that an employment link would only generally be given weight where non-revocation would significantly compromise the delivery of a major project or important service in Australia.
There was no relevant evidence before the Tribunal in this particular case, so the Tribunal finds that this other consideration is not engaged and weighs neutrally.
Impact on victims (paragraph 14.4)
This other consideration is only relevant when there is information before the Tribunal that victims of a non-citizen’s offending are aware of the person’s immigration status and have expressed a view. As there is no such information before the Tribunal, I find that this other consideration is not engaged and therefore weighs neutrally.
Extent of impediments if removed (paragraph 14.5)
The Direction exhorts the Tribunal to consider the extent of any impediments a person may face if removed from Australia to their home country in establishing themselves and maintaining basic living standards, in the context of what is generally available to other citizens of that country. The Tribunal should take into account the person’s age and health, any substantial language or cultural barriers and any social, medical and economic support available to them in that country.
Mr Dacanay has submitted that he will suffer emotional hardship from being separated from his family if he is repatriated. He has also submitted that he will be unable to obtain the medicaments that he requires for his health conditions (GD, p. 91).
Mr Dacanay also claimed (GD, p. 57):
My father has no home of his own, he lives with distant relatives from his side of the family which I have had no contact with at all.
The Applicant significantly qualified this written statement in his oral evidence. He said that his father lives with his paternal grandfather at a location some eight hours’ drive from Manila. Mr Dacanay said that he does have contact with his father; he speaks to his father about every month, but that sometimes, when his father rings him, he does not take his call. Mr Mooney subsequently submitted that Mr Dacanay’s father sometimes telephoned seeking financial support.
Mr Dacanay’s evidence is that he has a somewhat strained relationship with his father, but does keep in monthly contact with him. In the past Mr Dacanay has stayed with his parents-in-law during visits, and the Tribunal was told that the Applicant’s father-in-law has recently had a stroke and has moved to a smaller house and no longer has a guest room. Mr Mooney said that his knowledge is that Mr Dacanay’s parents-in-law are in strained financial circumstances and he did not think they would be in a position to offer any assistance to the Applicant.

The Tribunal notes a medical letter dated 25 September 2018 (GD, p. 105) from Dr Elton Chen, the Applicant’s general practitioner, to a Dr Turner relating to a regular assessment and review of Mr Dacanay’s hepatitis B condition. The other two conditions referred to in the letter are pulmonary tuberculosis, with a date of onset of June 2017, and pancytopenia, with a date of onset also of June 2017.
The Tribunal also notes the medical report of Dr Partho Bose, general practitioner, dated 12 October 2018 (TB, pp. 27-32) referring to Mr Dacanay as having ‘low mood of long standing’ for which he had a long consultation and for which he had requested a referral to a psychiatrist.
Mr Dacanay’s own evidence is that he is cured of his tuberculosis condition. This evidence accords with the clinical record taken at his health induction assessment on entering detention in September 2019 which records (at STB, p. 301) ‘Client had previous Hx [history] of TB but already treated in 2017’. In addition, at GD, p. 303 was another clinical note stating ‘No Active symptoms of TB’. At STB, p. 335 was another medical report dated 4 September 2019 which relevantly states ‘Has Hepatitis B…on entecavir; Had TB…cured last year’. The Tribunal notes the evidence from Mr Dacanay that, as part of his assessment on entering detention in September 2019, he had a chest x-ray (which is confirmed at GD, p. 323). The radiology report of Dr Neil Murphy, radiologist, dated 9 September 2019 (TB, p 346) relevantly states: ‘The lung fields and pleural spaces are clear.’
The Tribunal understands that pulmonary tuberculosis is curable with early treatment and antibiotic treatment, and Mr Dacanay gave evidence, and Mr Mooney made submissions, that he had regularly attended Liverpool Hospital over a year to take medication under supervision (which the Tribunal surmised at the hearing was probably because tuberculosis is a notifiable disease in Australia). Mr Mooney stated that he and other members of the family had also had precautionary chest x-rays. It would seem on both the medical and lay evidence before the Tribunal, that Mr Dacanay’s tuberculosis has been cured.
In terms of the hepatitis B condition, the Tribunal notes that the DFAT Country Information Report – The Philippines (dated 21 December 2018)(TB, pp. 166-196) relevantly states:
The 1987 Philippines Constitution requires the state at a national level to ‘protect and promote the right to health and instil health consciousness among [the population].’ It also requires the state to make healthcare available to people ‘at an affordable cost’ and includes an undertaking to ‘provide free medical care to paupers.’ In reality, despite the availability of a national health insurance agency, numerous out-of-pocket expenses make health care costly and hinder access for poor people.
Mr Mooney made oral submissions about the expenses that the family incurred when Mr Dacanay was suddenly hospitalised in the Philippines in 2017, which he said were significant. Although there was no evidence about this, the Tribunal has no reason to question what was put forward. It is noted that Mr Dacanay does not have health insurance in the Philippines because he has not worked in that country for the last decade. The Tribunal accepts that the health system is different from Australia’s, but reminded the parties during the hearing that the correct yardstick in this part of the Direction relates to impediments in the context of what is generally available to other citizens of that country. It does not prompt a comparison between, in this aspect, the health system of Australia and the health system of the country of reference. It is however accepted, and consistent with the information in the DFAT country report, that health care in the Philippines is generally expensive, and may be more expensive for a person like Mr Dacanay who has no adult history of employment in that country.
It is not evident to the Tribunal whether the antiviral drug Entecavir (or equivalent) is available in the Philippines and if so, whether there is a cost to persons requiring it, and what that cost is. The Tribunal accepts that Mr Dacanay must take this drug for the foreseeable future in relation to his hepatitis B condition.
The Tribunal notes that Mr Dacanay is otherwise young and relatively healthy. He would not face language or cultural barriers and told the Tribunal that he speaks both English and Tagalog. It is accepted that he may have initial difficulty re-establishing himself in the Philippines, finding accommodation and employment. It is noted that although his father is in the Philippines and he is still in regular contact with him, the Applicant’s father lives in a rural area, and that he may not be able to provide much assistance to Mr Dacanay as he is engaged caring for his own aged father.
The Tribunal considers that, because it is not clear whether the antiviral medication Mr Dacanay requires for a continuing condition is generally available in the Philippines, this is a special factor to take into account, and accordingly finds that this other consideration weighs very slightly in favour of revoking the mandatory cancellation of his visa.
SUMMARY AND CONCLUSION
In conducting this weighing exercise in relation to the considerations in the Direction, the Tribunal has found that two of the primary considerations, the protection of the Australian community and the expectations of the Australian community, weigh strongly against revoking the mandatory cancellation of Mr Dacanay’s visa. The primary consideration relating to the best interests of relevant minor children has been found to weigh in his favour. The considerations relating to international non-refoulement obligations, impact on Australian business interests and impact on victims have been found either to weigh neutrally or not to be engaged, on the facts.
The consideration relating to strength, nature and duration of ties to Australia weighs in favour of revoking the mandatory cancellation of the visa, and the consideration relating to the extent of impediments if removed has been found to weigh slightly in the Applicant’s favour.
There is no doubt that losing his visa and having to depart Australia will have a significant emotional effect on Mr Dacanay, particularly because of the separation from his wife and young child, and also because of separation from other family members. The Tribunal is mindful of that fact. However, the nature of the Applicant’s offending and his apparent reluctance at the hearing to take full responsibility for it, coupled with the assessment that there is a real risk of re-offending, have brought the Tribunal to the conclusion that the decision under review was correct in law, and the preferable decision where a discretionary power is available. The consequence is that the Tribunal finds that the discretion available under section 501CA(4)(b)(ii) of the Act is not enlivened.
DECISION
The Tribunal decides to affirm the decision under review.

142. I certify that the preceding 141 (one hundred and forty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member D.J. Morris

..............................[sgd]...................................
Associate
Dated: 25 February 2020

Date(s) of hearing: 10 February 2020

Advocate for the Applicant: Mr W. Mooney

Solicitors for the Respondent: Ms J. Harris, Sparke Helmore Lawyers

[2020] AATA 290

25 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Date(s) of hearing:	10 February 2020
Advocate for the Applicant:	Mr W. Mooney
Solicitors for the Respondent:	Ms J. Harris, Sparke Helmore Lawyers