DGKQ and Minister for Immigration and Border Protection

[2014] AATA 4

[2014] AATA 4

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/5233
Re	DGKQ
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Regina Perton, Member
Date	8 January 2014
Place	Melbourne

The Tribunal affirms the decision under review.

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

Regina Perton, Member

MIGRATION – cancellation of visa – character test – substantial criminal record -  protection of Australian community - risk to the Australian community should the conduct be repeated – strength, duration and nature of ties to Australia – whether risk of future harm acceptable -  exercise of discretion – decision under review affirmed

Migration Act 1958 ss 499(1), 499(2A), 501(2), 501(6), 501(7)

Sex Offenders Registration Act 2004 (Vic)

Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198

Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81

Direction No. 55 – Visa Refusal and Cancellation under s501

REASONS FOR DECISION

Regina Perton, Member

8 January 2014

1. DGKQ is a citizen of New Zealand who first arrived in Australia in September 1985 on a Class TY Subclass 444 Special Category (Temporary) visa.  Apart from visits to New Zealand, he has remained in Australia since.  On 8 October 2013 a delegate of the respondent found that DGKQ did not pass the character test due to his criminal record in Australia, and decided to exercise the discretion to cancel his visa.  DGKQ seeks review of that decision.

   LEGISLATIVE BACKGROUND

2. Under s 501(2) of the Migration Act 1958 (the Act) the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that the person passes the character test (s 501(2)(b)). 

3. The character test is set out in s 501(6) of the Act, which provides that a person does not pass the character test if one of a number of grounds in s 501(6)(a)-(d) is met. Section 501(6)(a) of the Act provides:

   (a)       the person has a substantial criminal record (as defined by subsection (7));

   …

4. Section 501(7)(c) of the Act provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

5. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. On 25 July 2012 the Minister issued Direction no. 55 - Visa Refusal and Cancellation under s 501 (Direction 55) which came into operation on 1 September 2012. 

6. Direction 55 provides guidance for decision-makers when making decisions to refuse or cancel a visa under s 501 of the Act, including the exercise of the discretion to decide whether a non-citizen should be permitted to enter or remain in Australia in circumstances where that person does not pass the character test.

7. Paragraph 6.3 sets out the principles behind Direction 55:

   6.3     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) 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.

   (3) 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.

   (4) 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.

   (5) 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.

   (6) 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.

8. Paragraph 7 of Direction 55 sets out how to exercise the 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; and

   b) is required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community

9. Paragraph 8 requires decision-makers to take into account the primary and other considerations relevant to the individual case:

   …

   (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 or cancellation of the 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 

   ISSUES

10. The issues before the Tribunal are:

    ·Does DGKQ pass the character test? If not:

    ·How do the primary considerations and other considerations apply to DGKQ?

    DOES DGKQ PASS THE CHARACTER TEST?

11. In May 2008 DGKQ pleaded guilty to five charges of incest and one charge of committing an indecent act with a child under the age of 16.  The victim was his biological daughter.  The charges related to an extended period of offending between 2000 and 2002.   In June 2008 he was sentenced in the County Court to an effective sentence of six and a half years imprisonment.  Following an appeal by the Crown, DGKQ was sentenced in December 2009 to an effective sentence of eight and a half years imprisonment with a minimum non-parole period of five and a half years.

12. DGKQ, who is currently still serving his sentence of imprisonment, has conceded that he does not pass the character test.  The Tribunal finds that DGKQ does not pass the character test set out in section 501 of the Act.

    DGKQ’S BACKGROUND

13. DGKQ is a 48 year old New Zealander who first arrived in Australia at the age of 20 years in 1985.  He has made eleven return trips to New Zealand to visit relatives and attend family funerals in that time.

14. DGKQ is the eldest of six siblings, all of whom now live in Australia as does his mother.  He is the father of two children.  DGKQ’s elder daughter was born in 1984 in New Zealand and the younger daughter in Australia in 1994.  He married the mother of his elder daughter when he was aged 19 years.  She was pregnant with DGKQ’s child at the time.  The marriage lasted less than a year.  Not long after his elder daughter’s birth, DGKQ left his wife and shortly thereafter moved to Australia.  He had little contact with his elder daughter for her first 15 years.

15. In Australia DGKQ formed a relationship with Ms E in 1990.  Ms E was the mother of DGKQ’s younger daughter, who is an Australian citizen.  Ms E suffered chronic ill-health.  DGKY was her carer for much of the period after the child’s birth.  Ms E left DGKQ in 2001.  Ms E died when DGKY’s younger daughter was 9 years old.  The younger daughter then moved back to live with her father.

16. The elder daughter was cared for by her grandparents in New Zealand for some of her childhood but eventually moved to Sydney where her mother had already relocated. In early 2000 the elder daughter came to live with DGKQ.  The elder daughter’s mother asked DGKQ to take over her care as she was having difficulty in doing so.   

17. DGKQ’s offending against the elder daughter commenced in 2000 when she was 15 years old and continued until mid-2002 just before her 18^th birthday.  The offending ceased when the elder daughter returned to Sydney.  She later returned to New Zealand.  The elder daughter reported her father to the police in New Zealand who liaised with Victorian police in relation to the offences.

18. In 2004 DGKQ and his younger daughter moved in with DGKQ’s mother.  DGKQ’s mother had, and still has, a number of serious health issues.  DGKQ became his mother’s carer for the next four years. 

19. In approximately 2005 DGKQ began a relationship with Ms R, a fellow New Zealander living in Australia.  She attempted suicide in 2008 after DGKQ’s sentencing and imprisonment and suffered consequential severe brain damage.  She now resides in a nursing home in New Zealand.

20. DGKQ has forged a relationship while in prison with Ms M.  They had known each other for several years as friends when each was in an earlier relationship.  Ms M is a New Zealander who lives and works in Australia.  She has two adult children who both live in Australia.

21. DGKQ qualified as a butcher in New Zealand.  He has subsequently worked as a shop fitting labourer for several years, as a security guard and a range of other jobs.  Prior to his incarceration, he was a carer for his mother in receipt of a Centrelink benefit.

22. While in prison, DGKQ fell from an upper level bunk and sustained injuries which still affect him today.  He is seeking redress from the Victorian government. 

    CRIMINAL HISTORY

23. On 13 March 1985 while still in New Zealand, DGKQ was convicted and fined $50NZ for disorderly behaviour likely to cause violence.

24. The offending against his elder daughter began not long after she came to live with him when she was 15 years old.  DGKQ recalled some aspects of an early incident which took place after he came home in the early hours of the morning after a rugby game.  He had been drinking all day.  His elder daughter and his partner were asleep in bed.  He went to bed and then fondled his daughter inappropriately.  After his daughter complained, he told his partner and his partner’s brother and possibly other family members his version of events.  He said that they accepted his explanation and shrugged it off.  DGKQ said that he cannot remember much of the detail of a family conference concerning an early offence against his daughter which was cited in the court sentencing transcript.  He said that he cannot recall details of most of the other offences as he has blocked much of it out of his mind.  He could also not recall the frequency with which he required his elder daughter to comply with his sexual desires.

25. The Tribunal has been presented with detailed information about DGKQ’s offending which it will not recount within these Reasons for Decision.  Various sexual practices took place on an extensive number of occasions.  The elder daughter became pregnant at one stage to her father and had an abortion.  He then required her to take the contraceptive pill to avoid another pregnancy. 

26. DGKQ initially denied his offending when questioned by police.  However, he eventually pleaded guilty.  The reasons for sentence given by the County Court Judge include the following:

    …

    3 … All of these offences occurred between 1 January 2000 and August 2002, and involved the complainant, your biological daughter…

    4 I note that you have agreed to the inclusion in the presentment of four representative incest counts… each of which represents separate unparticularised conduct for the period identified in the count.

    …

    14 Relevantly, you report an early history of binge drinking from the age of 17.  However, by your account, prior to these offences your drinking appears to have resolved into a pattern of social drinking, mainly on weekends, and at times you drank to the point where you were intoxicated.  Indeed, that you were, as you claim, affected by alcohol may help to explain the earlier assaults but it does not excuse your criminal behaviour.

    …

    16 I am informed that your plea of guilty was resolved with the Crown on the basis that, other than in relation to the two penetration incidents I have mentioned, you say that at the time you believe that the complainant actively consented, whereas based on all the circumstances of this case the Crown submits, I think with good reason, that the complainant’s description of her behaviour indicates acquiescence rather than consent.

    17 Whilst there is no evidence of coercion or force, in my view the transcript of the interview of the complainant by police in New Zealand and her statement clearly indicate her view that it was not consensual sex….

    …

    35 Eventually the offending was reported by the complainant to New Zealand police, who obtained the record of interview and statement I have already mentioned.  Subsequently, police from Moorabbin CIU were notified, and in June 2006 you were interviewed at which time you admitted the touching conduct described in the summary of the uncharged act, but otherwise you emphatically denied any subsequent sexual conduct, attributing the allegations made to the complainant’s jealousy of your relationship with your ex-partner at the time.

    36 You also denied responsibility for the complainant’s pregnancy, claiming that you had undergone a vasectomy prior to her falling pregnant, although later investigations have revealed that the medical centre at which you said this took place does not have a record of this procedure.

    37 In sentencing you I have taken into account the impact on the complainant of these very serious sexual crimes, as articulated in her recent victim impact statement dated 30 April 2008.  In this statement the complainant describes in some detail the emotional trauma suffered, as well as the ongoing impact of your abuse on her young life.  For instance, the complainant speaks of her self-disgust, her loss of trust in others, her inability to establish close personal relationships, the alienation she experiences and her rejection by what she calls her Australian family and her ongoing struggle to make sense of why you exploited her rather than protect her, as a father should.

    38 In all, I think it reasonable to accept that the long-term impact of your abuse on the complainant is profound, although it is also clear from the recent statement that her disclosure of the offending has helped the complainant move on and gain some perspective on what happened to her.

    39 In summary, the aggravating features of your offending not already mentioned include:

    (a) the length of the period over which the abuse occurred;

    (b) the fact that whatever teenage behaviours and problems the complainant brought with her when she came into your care, she was a vulnerable member of your immediate family who required parenting, not sexual exploitation;

    (c) the fact that while some of the earlier offending was probably opportunistic, you substituted your teenage child for an adult partner and operated your household to accommodate the ongoing abuse of your child; and lastly,

    (d) the fact that the representative counts disclose a pattern of repetition of offending.

    …

    45 I accept that by your plea of guilty you were entitled to a discount, because in doing so you have spared the complainant and other witnesses the trauma and inconvenience of a trial and you have saved the community the cost of a contested trial.

    46 Your plea of guilty as one indicator of remorse, as are the expressions of remorse and shame made through others.  However in accepting that you have expressed remorse, based on the material before me I cannot be confident that you have reached a stage where you have wholly rejected the distorted thinking that allowed you to rationalise the sexual contact with your daughter as being mutual.

    …

    48 Courts have long held that sentences for sexual crimes committed against children, particularly those in the perpetrator’s care, should express the community’s denunciation of this behaviour and reinforce the values of the society that requires that children be kept safe from sexual predators, particularly those who are entrusted with their care and welfare.

27. As indicated earlier, the Director of Public Prosecutions (DPP) appealed the adequacy of the sentence.  In December 2009 the Court of Appeal of the Supreme Court of Victoria re-sentenced DGKQ to a total effective sentence of eight and a half years imprisonment with a non-parole period of five and a half years.  Their sentencing comments included :

    …

    31 We do not accept the submission that the respondent’s moral culpability for incest was lessened by the fact that he had not previously had a meaningful relationship with his daughter.  It is not surprising that a young girl who was attempting to establish a relationship with a father who had previously had a very minor role in her life did not know what to do about the abuse.  The Respondent was aware that the victim initially resisted the abuse, although she later came to acquiesce in it.  But acquiescence in the sexual abuse of a girl aged between 15 and 17 by her 43-year-old father can hardly be regarded as mitigating the respondent’s moral culpability.  So much was conceded by counsel for the respondent.  The fact that the victim may have had some prior sexual experience did not excuse the respondent for his gross breach of trust.  The victim’s pregnancy and her need to have an abortion to conceal the respondent’s wrongdoing must also have increased the impact of the offending on the victim.

    32 As her Honour recognised, the gravity of the offending was also aggravated by the length of the period over which the offending occurred, and its repetitious nature, which would also have contributed to the victim’s apprehension that it would occur again.

    33.  The complainant’s victim impact statement speaks movingly of the way in which her father’s sexual abuse has affected her.  The psychological report… notes the respondent’s cognitive distortions resulted in self-justifying behaviour which attempted to shift responsibility to the victim, although she was only 15 when he began to abuse her.  Her Honour correctly rejected the view that the victim’s failure to resist the offending or to leave her home for some time reduced the gravity of the offending.

    …

28. DGKQ told the Tribunal that he now realises the dire consequences of his actions and how they affected his daughter.  He stated that through his time in prison and the courses he has done there, he is conscious of how appalling his behaviour was. 

    HOW DO THE PRIMARY AND SECONDARY CONSIDERATIONS APPLY TO DGKQ?

    Assessment of primary considerations

29. The four primary considerations are set out in paragraph 9(1) of Direction 55:

    (a)       Protection of the Australian community from criminal or other serious conduct;

    (b)       The strength, duration and nature of the person's ties to Australia;

    (c)       The best interests of minor children in Australia;

    (d)       Whether Australia has international non-refoulement obligations to the person.

    Protection of the Australian community from criminal or other serious conduct

1. Paragraph 9.1(1) of Direction 55 states that, when considering the 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. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

2. Paragraph 9.1(2) of Direction 55 states that decision-makers should also give consideration to:

   a) The nature and seriousness of the person's conduct to date; and

   b) The risk to the Australian community should the person commit further offences or engage in other serious conduct.

   a) The nature and seriousness of DGKQ's conduct

3. Paragraph 9.1.1(1) of Direction 55 lists a number of factors that must be taken into account in considering the nature and seriousness of the criminal offending or other conduct to date:

   a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously.

4. DGKQ was sentenced to a total effective term of imprisonment of eight years and six months with a non-parole period of five years and four months for serious sexual offences. He was made a registrable offender under the Victorian Sex Offenders Registration Act 2004.

   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;

5. DGKQ committed serious sexual offences against his own daughter, who was a vulnerable young person seeking parental protection. 

   c) Where the person is in Australia, that a crime committed while the person was in immigration detention; during an escape from immigration detention; or after the person escaped from immigration detention, but before the person was taken into immigration detention again is serious, as is an offence against section 197A of the Act;

6. This factor is not relevant in this matter.

   d) The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s501(6)(b) or (d), or is not of good character under s501(6)(c) is considered to be serious;

7. DGKQ's conduct in committing the crimes is serious.

   e) The sentence imposed by the courts for a crime or crime;

8. In the County Court of Victoria on 16 June 2008, DGKQ was sentenced to a total effective term of imprisonment of six years and six months with a non-parole period of four years and four months.  On 1 December 2009 the Court of Appeal sentenced him to a total effective term of imprisonment of eight years and six months with a non-parole period of five years and six months.  

   f) The frequency of the person's offending and whether there is any trend of increasing seriousness;

9. DGKQ commenced offending in 2000, about 15 years after his arrival in Australia and committed many offences against his daughter over a two year period.

10. In New Zealand prior to his first arrival in Australia, DGKQ was fined for disorderly behaviour likely to cause violence. 

    g) The cumulative effect of repeated offending;

11. DGKQ's repeated offending between 2000 and 2002 resulted in his term of imprisonment.  Originally 33 charges were in play but these were brought down to six charges at committal to which DGKQ pleaded guilty.

    h) Whether the person has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

12. The respondent has indicated that DGKQ did not declare his New Zealand conviction on his various entries on his passenger cards into Australia.  DGKQ said that he did not know that the fine was considered a conviction that had to be declared until told that by Victorian police during their investigations into his sexual offences.  The respondent provided evidence that after he became aware that the conviction and fine should be declared, which was on his last entry into Australia from New Zealand in 2008, that DGKQ still filled out the passenger card without declaring the conviction.     

    i) Whether the person has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the person's migration status (noting that the absence of a warning could not be considered to be in the person's favour);

13. DGKQ has not re-offended since receiving notice of the intention to cancel his visa nor has he received an additional formal warning from immigration authorities that further criminal activity could lead to the cancellation of his visa. 

    j) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

14. All relevant offences were committed in Australia.

    Conclusion regarding the seriousness of the offences

15. The Tribunal concludes that the offences are very serious.   

    The risk to the Australian community should DGKQ commit further offences or engage in other serious conduct

16. Paragraph 9.1.2 of Direction 55 states:

    (1) In considering whether the person 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 risk that it may be repeated may be unacceptable. In making this assessment, decision-makers must have regard to, cumulatively:

    a) The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct;

17. Taking into account the nature of the convictions for offences involving sexual abuse of a minor, namely his daughter who was in his care, the Tribunal finds that there would be significant harm to individuals or the Australian community should DGKQ engage in further criminal or other serious conduct.

    b) The likelihood of the person engaging in further criminal or other serious conduct, taking into account:

    i. information and evidence on the risk of the person reoffending; and

    ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

18. In written statements dated 1 March 2013 and 11 December 2013 and in his oral evidence, DGKQ said that he is remorseful and expressed regret over his actions in committing the offences, which he said were out of character, were situational and occurred during a difficult period in his life.  In his statement of 11 December 2013, DGKQ stated:

    22.  I understand the grief I have caused now to so many.  I want to express how sorry I am to everyone, particularly my daughter, the victim.  I am very confident that I will never offend again.  I will not be in the position I found myself in back then.  I have learned what my triggers are.  I have heard stories of other inmates’ crimes.  I understand that for many people, including me, a lack of support around them can lead them to committing crimes.  I have helped many inmates to understand where and how to access the support they need.  I understand that support comes in many forms, and now I know how to recognize when I need help and I’m not afraid to ask for it.  For these reasons, I truly do not believe I will offend again.

19. When asked by the respondent’s representative why he did what he did, DGKQ said he was depressed and confused at the time.  He said he was under a lot of stress both emotional and financial.  He conceded that when questioned by the police initially in relation to the allegations, he had denied the charges because he was scared to do so. DGKQ also acknowledged that the Department of Human Services (DHS) had interviewed him in 2001 concerning sexual misconduct allegations but that he had denied such conduct.  His conduct towards his elder daughter continued after the DHS queries. DGKQ confirmed that his elder daughter had attempted suicide more than once during the period in which he was committing offences against her. 

20. DGKQ emphasised that since his incarceration he has done everything possible to rehabilitate and educate himself to make sure he never does anything like this again.  DGKQ said that he has completed numerous courses and has been a Peer Supporter and Induction Billet requiring a high level of trust by inmates and prison authorities, and has supported other inmates in addressing their problems.  This has helped him to gain insight into his own behaviour.  He stated that he is confident he will not re-offend. 

21. He told the Tribunal that he had been found to be ineligible for the Sex Offender Program.  He attempted to join that program after initially being rejected.  The respondent conceded that he had done all he could to be admitted to the Sex Offender program and that his failure to undertake it, despite the sentencing judge’s recommendation to do so, was not his fault. 

22. In a report prepared for the sentencing hearing in the County Court, a qualified psychologist engaged by the defence described DGKQ as a situational offender, rather than a preferential offender with deviant sexual preferences, who engaged in sex with his child while affected by factors such as financial pressure, relationship conflict, lack of general coping skills, lack of intimacy and pressure associated with caring for his ill partner when she and his youngest daughter were living with him.  The psychologist assessed DGKQ's level of risk of sexual re-offending as low, but recommended treatment under the Sex Offender Program.

23. In a statutory declaration dated 14 February 2013, DGKQ's mother said that she believes that DGKQ is very sorry for what he has done and has taken responsibility for his offending.  She also believes that his remorse is sincere and that he will not re-offend.  She repeated her belief in him in a later statement dated 10 December 2013 and in her oral evidence.  Asked how she reacted when she found out about her son’s offences, DGKQ’s mother said she did not believe that he could have done so because it was not in his character to act in such a way.  However, he eventually told her that he was pleading guilty to the charges.  She did not want to hear the details and while she went to court for her son’s sentencing, she did not stay in the court room to listen to the detail.

24. In statutory declarations dated 14 February 2013 and 10 December 2013, DGKQ's fiancée said that she has known DGKQ’s family in New Zealand, and commenced a relationship with him in 2009/2010 during his imprisonment.  Asked how she felt when she found out about the charges against him, she said that she was shocked as it was not within his character to act in such a way and in another response, that it is not in his nature.  DGKQ’s fiancée said that DGKQ has had to come to terms with his crimes and has undertaken rehabilitation and other courses.  She stated that she believes he has the knowledge and tools to ensure that he does not re-offend. 

25. In a Parole Assessment Summary dated 20 September 2013 the officer preparing it for Community Correctional Services (Vic.) noted that the first offence involving DGKQ's daughter occurred in 2000 when he and other family members were drunk, and he claimed to be suffering from depression, anxiety and stress, plus unresolved grief from the death of his former partner.  The report states that afterwards the family made a joint decision not to mention the incident to anyone.  Later that year a further incident occurred, followed by other incidents that occurred at least weekly, when the younger daughter was present. 

26. The report stated that DGQK was assessed by Corrections Victoria as falling in the low risk category for sexual re-offending on the static factors measured by the Static-99 actuarial tool, although no clinical assessment or treatment completion reports had been undertaken by Corrections Victoria.  In addition it appears that he was not assessed as to whether he had rejected the distorted thinking that enabled him to rationalise the sexual contact with his daughter as being mutual.  He has completed drug and alcohol programs, Peer Listeners program, lifestyle and interpersonal relationship programs, and was also assessed as low risk for general re-offending.  His prison behaviour was rated as of an appropriate standard, with no incidents of adverse behaviour recorded.        

27. DGKQ challenged some of the contents of the report as being inaccurate and indeed, the Tribunal notes that there are some factual inconsistencies between parts of the report and other oral and written evidence.  The author of the report stated that she cannot predict risk for the duration of the prospective parole period.

28. DGKQ’s counsel, in his submissions, pointed out that if he was able to stay in Australia, DGKQ would be on parole and on the Sex Offender’s Register which would result in close monitoring of him and would be a deterrent to further offences.  He pointed to evidence of rehabilitation on DGKQ’s part.

29. In Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81 Davies J held that even if the risk of recidivism is not high, it will strongly support deportation (or visa cancellation) when recidivism, if it does occur, may cause great harm.  In Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198 the Full Court of the Federal Court held that a real risk of recidivism is one that is not far-fetched or fanciful, and can include a low or minimal risk.

30. The Tribunal takes into account the contents of the letters of support of which there are many from relatives and friends and DGKQ's expressions of remorse for his offences.  He has completed a number of rehabilitation courses while in prison. He said that his fiancée and her family have been a positive influence and are supportive of him.  He does not wish to jeopardise his relationship with his younger daughter who is now aged 19 years and is pregnant. 

31. Although the Parole Assessment Summary assessed DGQK as falling into the low risk category for sexual re-offending and general re-offending, the Tribunal takes into account that when the first offence occurred against his daughter, part of the family agreed to conceal the initial offence and he committed multiple further offences against her.  When she became pregnant and had an abortion, his response was to provide contraception, which suggests that he anticipated additional offences. 

32. The close and extended family support for him (expressed in numerous statements to the Department) barely mentions the offences and seems to pay little regard to the scope and nature of the offences.  This suggests that the family has little insight into his offending, particularly as it involved his own daughter.  As the offences were said to have occurred at a time when DGKQ was vulnerable and facing financial and other difficulties, the prospects of him facing similar problems when released remain a possibility.  On the basis of all the material, the Tribunal finds that while the risk of re-offending is relatively low, it remains real and not insignificant.

    The strength, duration and nature of the person's ties to Australia;

33. Paragraph 9.2(1) of Direction 55 states that the decision-maker must have regard to the following:

    a) How long the person has resided in Australia, including whether the person arrived as a young child, noting that:

    i. Less weight should be given where the person began offending soon after arriving in Australia; and

    ii. More weight should be given to time the person has spent contributing positively to the Australian community

34. DGKQ was born in New Zealand in 1965 and arrived in Australia when he was aged 20 years.  His formative years were not spent in Australia.  He has been in Australia for 28 years and commenced offending some 15 years after arriving.  DGKQ said that he has contributed positively to the Australian community by caring for his late partner and his mother, and by his involvement in cultural and rugby clubs.  He has played representative rugby league and has been involved in numerous charitable and voluntary organisations, as well as school committees.  

    b) The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

35. DGKQ has significant ties to Australia through an extensive family network that includes his mother and younger daughter, both of whom are Australian citizens.  His two brothers, three sisters, seven aunts, eight uncles, twenty-eight cousins, fifteen nephews and nieces all live permanently in Australia.  His fiancée also lives permanently in Australia.           

    The best interests of minor children in Australia

36. DGKQ has two nieces and one grand-niece under the age of 18 years who are Australian citizens.  They were born during his incarceration and have not had an opportunity to build a meaningful relationship with him.   DGKQ said that he is close to his adult nieces and nephews, and would like to be able to develop a relationship with all his relatives.

37. The Tribunal takes into account that DGKQ has expressed a desire to play a role in the life of his nieces and nephews who are minors, although he has had little or no direct contact with them while he has been in prison.

    Whether Australia has international non-refoulement obligations to the person.

38. Paragraph 9.4(1) of Direction 55 states:

    In cases where claims which may give rise to international non-refoulement obligations [relating to returning persons who may face risks of a type set out in various international treaties] are raised by the person or are clear from the facts of the case, they must be given consideration if the person is in Australia.

39. DGKQ referred to Australia's obligations under the 1951 Convention Relating to the Status of Refugees and told the Tribunal that he has significant fears for his life if he is forced to return to New Zealand.  He explained that at the age of 18 years when living in New Zealand, he became involved with a gang and witnessed a culture of criminality, revenge and brutality.  DGKQ indicated that a distant relative was in charge of a group and that was how he got involved, albeit at the lowest initiation level.  He stated that he was asked to participate in an attack on a rival gang member’s house and that he did not wish to do so.  He said that his relative had suggested in strong language that he leave for his own safety.

40. DGKQ said that he left New Zealand for his own safety and for other personal reasons.  DGKQ emphasised that, despite the length of time that has elapsed since his departure, there is still a real risk to his welfare if he returns to New Zealand, although he agreed that he has made numerous visits to family members in New Zealand without incident, including a visit only two months after leaving New Zealand.  He said that local police would not be able to protect him.  DGKQ conceded that he did not raise any concerns about involvement with gangs in his initial response to the notice of intention to cancel his visa.

41. The Tribunal takes into account DGKQ's claims but notes that he has made frequent visits to New Zealand since 1985; there have been no credible threats to him since his arrival in Australia; and he failed to identify the threat from gangs in his criminal proceedings or in his initial response to the notice of intention to cancel his visa.  Consequently the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of his removal from Australia there would be a real risk of significant harm from criminal gangs.  Therefore, Australia does not have any non-refoulement obligations to him under the Refugees Convention or any other international treaty.    

    Assessment of other considerations

1. Paragraph 10(1) of Direction 55 provides a list of non-exhaustive other considerations that must be taken into account where relevant:

   a) Effect of cancellation of the person's visa on the person's immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;

2. DGKQ stated that cancellation of his visa would have a devastating effect on family members in Australia. He said that in particular he is worried about his younger daughter, who is aged 19 years and has had many personal issues to deal with, including the lengthy illness of her mother and her mother’s subsequent death when she was aged 9 years.  The daughter came into his care and they became extremely close until he was imprisoned, following which she dropped out of school and moved to Sydney for a time.  DGKQ stated that after four years his daughter was permitted to visit him in prison once she was 16, which has given her a sense of stability and reassurance, together with guidance and support, which would be lost if he is sent to New Zealand.  He said it would not be feasible for her to move to New Zealand.  She is now pregnant but is not living with the father of the child who is younger than she. 

3. In a statement dated 10 December 2013 the younger daughter stated that she was absolutely devastated when she found out that her father’s visa had been cancelled.  She described her father is her only real support in life since her mother passed away.  The younger daughter said that she is now pregnant and due to give birth in March 2014.  She had been living with the father of the child but has now broken up permanently with him.  She is living back with her paternal grandmother. Among her comments, she stated:

   4.  Due to all the terrible things I experienced in my life, I unfortunately turned to drugs and alcohol when I was younger.  When my father was first incarcerated, I used marijuana and ice for some months simply as a way to cope with him not being there.  I no longer use these drugs, and I’ve been seeing the drug and alcohol worker which has been very helpful.  I have also suffered a great deal of depression over the years. ... try to support me as much as possible but they can never replace my dad.  I want to be strong and get on with my life and have a future for me and my baby, but all I can do now is cry thinking about my father having to leave me again.

   5.  Unfortunately, in addition to turning to drugs as a young person, I also got into some trouble with the law.  I remember being depressed all the time when I was younger, I felt I had no parents to support and guide me, and so I push the boundaries whenever I could.  I was sentenced… in July 2013 for theft and robbery.  I was given a twelve month good behaviour bond in relation to these charges.  My father is aware of these charges.  He was saddened to hear about my trouble with the law, and feels responsible for not being around to help me through my troubled times.  I know that if he is allowed to remain in Australia he would do his best to make up for this.

4. In her oral evidence the younger daughter said her father would not want her to move to New Zealand because of the lack of opportunity and support there. 

5. DGKQ emphasised that his other major area of concern is for the welfare of his mother, who has significant health problems and for whom he was the primary carer for five years before his incarceration.  He said that at present his younger daughter and extended family members are assisting with her care, but he is the most appropriate person to resume caring for her, and would be unable to do so if he is living in New Zealand.

6. In her written statements and in oral evidence, DGKQ’s mother said that finding out that her son’s visa had been cancelled caused her health to deteriorate further.  She described the impact she believed his departure would have on his younger daughter.  DGKQ’s mother said that maintaining contact by letters and phone calls would not provide the younger daughter with the support she needs.  She said it would be too difficult for them to travel to New Zealand to visit DGKQ as she is on sickness benefit from Centrelink and her granddaughter will be a young single mother. 

7. Asked who took care of her whilst DGKQ was in prison, DGKQ’s mother said that his younger daughter helped her and one of her daughters would help from time to time.  She said she moved to Australia because it had a better health system than in New Zealand.  Her brother was already in Australia when DGKQ arrived in 1985.  DGKQ’s mother said she and her now estranged husband and their younger children came to Australia around 1986 or 1988.  Her children are all living in Melbourne and she has several adult grandchildren as well as some younger ones. 

8. In her written statements and oral evidence, DGKQ’s fiancée said that she and DGKQ intend to marry after her divorce from her previous partner is finalised in 2014.  She is a New Zealander who has spent part of her adult life here.  She and her estranged husband lived in Australia for four years commencing in the late 1980s and then returned to New Zealand for the following 14 years.  She and DGKQ resumed contact in around 2005 in Melbourne.  DGKQ’s fiancée said that if DGKQ is deported, she will face the dilemma of whether to accompany him to New Zealand or remain here with her two now adult children who require her support.  Her son is studying in the arts field and needs her support financially and emotionally.  The fiancée also described what she believed would be the impact on DGKQ’s mother and younger daughter if he were not in Australia.  Her children also provided statements as to their strong connection with DGKQ.

   b) Impact on Australian business interests

9. There does not appear to be any impact on Australian business interests of cancellation of DGKQ's visa.  He worked for a shopfitting company for several years but in the years just prior to his imprisonment, he was the carer for his mother and before that his now deceased partner.

   c) Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person's criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;

10. No material was presented to the Tribunal on the impact of a decision not to cancel DGKQ's visa on his victim (who is a family member).  DGKQ has had no contact with her since she left his home just before her 18^th birthday.  His mother said she has had no contact with the victim and that she understood from other relatives, that the victim now lived in New Zealand with a career and possibly a child of her own. 

11. The many letters of support provided to the Department rarely mentioned the victim but concentrated on the impact of DGKQ’s deportation on the younger daughter, mother, siblings in Australia and other relatives living here.

    d) The extent of any impediments that the 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) taking into account:

    i. The person's age and health;

    ii. Whether there are substantial language or cultural barriers; and

    iii. Any social, medical and/or economic support available to them in that country.

12. DGKQ told the Tribunal that he would face extreme impediments if removed to New Zealand because there are no close family members to support him in that country.  As a young man, he often stayed with his grandmother but she is now in a nursing home and has sold her house.  DGKQ also stated that he has significant health issues including shoulder pain arising from a fall while in prison in 2008, and pain in his left knee, lower back and hip.  He said that because of his injuries he is unlikely to be able to undertake any physical work of a kind he had previously performed, including shop fitting and in the security industry.  He referred to his lack of higher education or experience in a professional role.  He concluded that without work or family to provide support he fears that he could become destitute.

13. DGKQ also mentioned that he suffers from depression, particularly since his incarceration, and that anti-depressant medication has been discontinued because of adverse side effects.

14. DGKQ also told of his fears of retribution from the New Zealand gang he was connected to in his late teens.  He acknowledged he had returned to New Zealand on eleven occasions and had not been harmed but said that was because he kept a low profile.

15. The Tribunal takes into account that DGQK has lived in Australia for 28 years.  He is now aged 48 years and has medical conditions that require medication and other treatment and would face challenges in beginning a new life in the country that he left at the age of 20 years.  However he is familiar with New Zealand's culture and society, and there would be no language or cultural barriers facing him if he was to return.  Basic social, medical and economic support available to other citizens, similar to the Australian system, would apply to him, and the medication or treatment that he says is appropriate for his health issues should be available.  On balance, the Tribunal finds that DGKQ would not face significant impediments in establishing himself in New Zealand.

    CONCLUSION   

16. The primary consideration regarding protection of the Australian community from criminal or other serious conduct, which weighs in favour of cancellation of the visa, should be given great weight given the nature of the conduct and the lengthy period over which the offences occurred.  

17. On the other hand, the primary consideration regarding the DGKQ’s ties to Australia, which weighs against cancellation of the visa, should also be given significant weight.

18. The impact of DGKQ’s removal from Australia on minor children is of little weight given his lack of contact with younger nieces and nephews in recent years due to his incarceration and his future listing on the sex offender’s register.  The Tribunal also gives little weight to the possibility of Australia breaching its international non-refoulement obligations in returning DGKQ to New Zealand given it has been more than 28 years since his relatively low level of involvement with a criminal gang and that he has returned there eleven times without experiencing any difficulties.  

19. As regards the other relevant considerations in this case, the Tribunal gives substantial weight to the effect of cancellation of the visa on his younger daughter, mother, fiancée, siblings and other relatives in Australia.     

20. The balancing act in cases such as this one is difficult.  However, the outcome will ultimately be determined in accordance with the Tribunal's obligation, pursuant to paragraph 7(1)(b) of Direction 55, to determine whether the risk of DGKQ causing future harm to members of the Australian community is unacceptable.

21. Having regard, in particular, to the principles referred to in paragraph 6.3 of Direction 55, and to:

    ·the very serious nature of the sexual offences against a child of which DGKQ was convicted;

    ·the Tribunal's opinion that, although the risk of DGKQ reoffending in a similar, or other serious, manner is relatively low, there remains a risk that he may reoffend;

    ·the very serious nature of the harm that would be caused to a member or members of the Australian community if DGKQ reoffended;

    the Tribunal concludes that the risk of the DGKQ's reoffending and causing very serious harm to the Australian community is an unacceptable risk which should not be tolerated by the Australian community.  Accordingly, the Tribunal determines that DGKQ represents an unacceptable risk of serious harm to the Australian community.

22. The Tribunal concludes, therefore, that the preferable decision in this case is that the visa be cancelled under s 501(2) of the Act.

    DECISION

23. The Tribunal affirms the decision under review.

I certify that the preceding 93 (ninety-three) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member

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

Associate

Dated 8 January 2014

Dates of hearing	16 & 23 December 2013
Counsel for the Applicant	Mr G Hughan
Solicitors for the Applicant	Refugee & Immigration Legal Centre Inc
Counsel for the Respondent	Mr D Brown
Solicitors for the Respondent	Australian Government Solicitor