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

Dunkley and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4 (6 January 2020)
Division:GENERAL DIVISION
File Number(s):2019/3804
Re:Gemma Dunkley
APPLICANT

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

DECISION
Tribunal:Senior Member B J Illingworth
Date:6 January 2020
Place:Adelaide

The Tribunal:
(a)sets aside the decision under review, pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975; and
(b)remits the matter to the Minister for reconsideration in accordance with a direction from the Tribunal that the discretion in s 501(1) of the Migration Act 1958 be exercised in favour of the Applicant.

...........[Sgnd]........................................
Senior Member B J Illingworth
CATCHWORDS
MIGRATION – refusal to grant a visa – visitor visa – s 501 character test applied – whether discretion to refuse visa should be exercised – considerations in Direction 79 – whether consideration weigh in favour of refusing visa – decision under review set aside and remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION
Senior Member B J Illingworth
6 January 2020
INTRODUCTION

This matter relates to an application for review filed by Mrs Gemma Dunkley (the Applicant hereafter referred to as “GD”) on 27 June 2019. The decision GD seeks to have reviewed is the decision of a delegate of the Minister for Home Affairs (“the Respondent”) dated 30 May 2019 to refuse to grant a Visitor visa to her husband, Dr Andrew Dunkley (the Visa Applicant hereafter referred to as “AD”).
At the hearing before the Tribunal, GD and AD were represented by Mr Mitchell Simmons of MSM Legal. The Respondent was represented by Mr Cameron Retallick, Australian Government Solicitor.
BACKGROUND
AD is a 44-year-old citizen of New Zealand, born in 1975. He is currently employed as a radiologist in New Zealand. His wife GD and children are Australian citizens, and GD’s family resides in Australia.
On 21 January 2011, AD was convicted and sentenced by the Wellington District Court on six counts of possess objectionable publication (“the subject offending”). For the subject offending, AD was sentenced to 18 months intensive supervision and 160 hours of community service.
At the time of sentencing, AD was aged approximately 35 years, married and GD was expecting their second child. He was a legally qualified medical practitioner who was about to become a consultant radiologist, but was stood down by his employer after he disclosed the subject offending. The Learned Sentencing Judge in his sentencing remarks, to which the Tribunal will refer later, outlined AD’s exemplary demeanour immediately following his arrest.
After sentencing, AD was granted visas and travelled to Australia on 15 occasions between 2011 and 2017. In 2016, he was offered a position as a radiologist with a private radiology practice and moved to Australia with his family. However, an employee of that practice became aware of the AD’s convictions, spoke to a member of the press, and consequently an article appeared in the local press.
After the publication of that newspaper article, AD received from the Respondent a Notice of Intention to Consider Cancellation of his visa (“NOICC”). He decided not to respond to the NOICC and he and his family returned to New Zealand.
On 3 September 2018, AD applied for a Visitor (Class FA) visa to enable him to travel to Australia for the purposes of a family holiday with GD and their children, particularly for his mother-in-law’s birthday and Christmas (which have now passed).
AD received a Notice of Intention to Consider Refusal of that visa application dated 17 December 2018. He provided a Personal Circumstances Form – Response to Notice to Consider Visa Refusal dated 17 December 2018.
On 31 May 2019, a Ministerial delegate decided that the Minister was not satisfied that AD passed the character test and therefore decided to exercise the discretion to refuse the visa application.
On 27 June 2019, GD lodged with this Tribunal an application for review of the delegate’s decision.
LEGISLATIVE FRAMEWORK
The relevant legislation in this matter is the Migration Act 1958 (“the Act”).
Relevantly, s 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Section 501(6) of the Act relevantly provides:
(6) For the purposes of this section, a person does not pass the character test if:
…
(e) a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child; or
(ii) found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction;
…
ISSUES
The decision to refuse AD’s visa was made on the basis that AD did not pass the character test and, after taking into account the relevant considerations, the Minister’s delegate decided to exercise the discretion in s 501(1) of the Act to refuse to grant AD’s visa.
The issues for the Tribunal are:
(a)Whether AD passes the character test as defined in s 501(6) of the Act; and
(b)If he does not pass the character test, whether the discretion in s 501(1) of the Act should be exercised to grant AD a visa.
DOES THE APPLICANT PASS THE CHARACTER TEST?
AD does not dispute that he does not pass the character test as he has been convicted of one or more morally based offences involving a child. Consequently, the Tribunal is satisfied that AD does not pass the character test.
IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?
In considering whether to exercise the discretion in s 501(1) of the Act, the Tribunal is bound in accordance with s 499(2A) of the Act to comply with any directions made under the Act. Relevantly, s 499(1) of the Act provides:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)The performance of those functions; or
(b)The exercise of those powers.
In this case, the relevant direction is Ministerial Direction No 79 (“the Direction”) which was issued on 20 December 2018 and applies on and from 28 February 2019. This Direction replaces what was previously Direction No 65.
Ministerial Direction No. 79
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker. They are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)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 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.
Paragraph 8 of the Direction provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C …
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
In deciding whether to refuse a non-citizen’s visa, paragraph 11 in Part B of the Direction provides the three Primary Considerations that the Tribunal must take into account, namely:
(a)Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia; and
(c) Expectations of the Australian community.
The Other Considerations which must be taken into account are provided in a non-exhaustive list in paragraph 12 of the Direction. These considerations are (but not limited to):
(a)       International non-refoulement obligations;
(b)       Impact on family members;
(c)       Impact on victims; and
(d)       Impact on Australian business interests.
The Tribunal will now address these considerations.
Primary Consideration A: Protection of the Australian community
Paragraph 11.1 of the Direction sets out the first of the three Primary Considerations the Tribunal should have regard to, and relevantly states:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:
(a)The nature and the seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal will address each of the considerations 11.1(1)(a) and 11.1(1)(b) in turn.
(1) The nature and seriousness of the visa applicant’s conduct to date
Paragraph 11.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly states:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to:
(a)The principle that… violent and/or sexual crimes are viewed seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as 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;
(d)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
(e)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test under section 501(6)(c), is considered to be serious;
(f)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(g)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(h)The cumulative effect of repeated offending;
(i)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(j)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
AD came before Judge Davidson of the District Court at Wellington on 21 January 2011 for sentencing in respect of six charges of possession of objectionable publication. Those six charges related to pornographic images that AD accessed on his computer between February and April 2009.
In September 2010, police searched AD’s home address and seized his computer. That computer revealed access to over 50,000 images of girls in sexually explicit poses; the girls were predominately young teenage girls. At the time of his arrest, AD was four weeks away from completing his five year specialist training as a radiologist after which he was to become a consultant radiologist. AD cooperated with police and advised them that he had been accessing sites containing such images and viewing them for approximately ten years, namely from about the age of 25 years. He did not download any image onto his computer. He also immediately disclosed to his then employer of his offending and made appropriate notification to the Medical Council of the charges and his proposal for a voluntary undertaking with conditions.
AD did not, at the time of his arrest, have an understanding about the reason for his behaviour; nor did he understand that his conduct was not a victimless crime. However, AD took immediate action to address his offending including self-referral to WellStop for psychological counselling and rehabilitation support, and referral to a psychiatrist. He was at the time, and remains, happily married and was a successful and highly regarded medical practitioner completing his specialisation in radiology.
AD surrendered his medical practising certificate on 24 November 2010. He advised the Chief Censor of the Royal Australasian and New Zealand College of Radiologists (“the College”) of his plea of guilty to the charges and further that he did not seek suppression of his name by the District Court.
The sentencing remarks of Judge Davidson[1] relevantly provide as follows:
(a)“... I preface my sentencing remarks by saying that I find the fact I have to sentence you incredibly sad … you were about to be made a consultant in an area of medical speciality … What I can say is based on everything I have read and heard you have done everything possible to try and confront the situation. You have dealt with your position professionally. You have dealt with it responsibly and, for my part, if I had any involvement in the decision-making process about whether you could work in your chosen field of expertise again, I would view such quite favourably … I have deliberately said that at the beginning of my sentencing remarks because I know the Medical Council in New Zealand and the equivalent in Australia will probably ask to see those notes and I make those comments publically because I think you are deserving of them.”
(b)“You are aged 35 … You are married with one child … Your wife is pregnant … You are a well-regarded, highly qualified medical practitioner, due to become a consultant radiologist before you were stood down by your employer after you had disclosed this offending. You are currently unemployed, but you have plans to return to your medical career if possible … Over the last few months you have been undertaking voluntary work … you confronted your position in a completely responsible and professional manner. You have made no effort to shirk or hide from your position, readily acknowledging to your employer and to the Medical Council the position that you were in.”
(c)“A well respected psychiatrist is of the view that you may possibly be what has been described in the literature as a discovery user. A discovery user I understand to be an Internet voyeur where there is little, if any, risk of the voyeuristic nature of the offending becoming elevated to actual sexually deviant behaviour. You have referred yourself to WellStop and you are committed to completing appropriate treatment and counselling.”
(d)“... there is no suggestion that you downloaded such images and indeed, there is no basis to conclude that you ever viewed every image. It is inherent, of course, in the offending that somewhere some teenage victim has been exploited so that the image can be created.”
(e)“By way of mitigation, I take into account your pleas of guilty, you’re responsible and professional cooperation with the police, with your employer and with the professional body responsible for your career. Additionally. You have no previous convictions. You have referred yourself to appropriate counselling and you are committed to continuing. You are genuinely remorseful. The other obvious mitigating feature is the potential destruction that conviction and sentence can have on your future, your future income and, of course, the health of well-being of your family.”
(f)“The Crown accept that the images in themselves are of the lowest level of some fairly well known groupings of images …”
(g)“The appropriate sentencing outcome, to my mind, is community work and intensive supervision.”
[1] Exhibit A, G Documents, pages 151 – 155.
The Learned Sentencing Judge sentenced AD to community work for 160 hours, and placed him on intensive supervision for a period of 18 months with conditions including to:
(i)undertake assessment for completion of the WellStop program;
(ii)undertake such other counselling and treatment as directed; and
(iii)not own or possess a computer or electronic equipment capable of internet access except during the legitimate course of your employment.
The Learned Sentencing Judge then said “I note in keeping with your professional and responsible attitude towards your position that you do not seek a final order for suppression of your name.”
Evidence of GD
The Tribunal received a statement from GD dated 23 July 2016,[2] an undated statement from GD[3], a letter dated 16 May 2016,[4] and a letter dated 9 April 2019.[5] GD also gave oral evidence before the Tribunal.
[2] Ibid, pages 95 – 96.
[3] Ibid, page 174.
[4] Ibid, page 276.
[5] Exhibit C.

GD is an Australian citizen, as are her three children. GD said that the Minister’s refusal to grant a visa to her husband, AD, has had a huge effect on her and her family in New Zealand and Australia.
It is not the case that they were to visit Australia on this one occasion. They have previously visited Australia on numerous occasions and wish to do so in the future. GD is very close to her parents who are elderly. They reside in Australia. She has a brother and his family who live in a different state to her parents. GD, AD, and their children have regularly travelled to Australia for family events since the date of AD’s sentence for the subject offending up to the date of the subject refusal of the visa application.
The subject visa application was to enable GD’s family to travel to Australia to celebrate her mother’s 70^th birthday and for Christmas. Given the delay in Respondent deciding the grant of the visa, GD and her children travelled to Australia without AD. She said it was sad the children were in Australia without their father. They kept asking why he was not with them and whether he will come with them on the next occasion they visit their family in Australia.
GD was asked about the family’s plans to move to Australia, and specifically the occasion in 2016 when the family did move to Australia and the resultant publication in the local press about AD’s offending. She said they will not now move to Australia. They live in a beautiful house in New Zealand and they do not want to be put through the stress and distress that occurred on the previous occasion.
GD said that her relationship with AD has grown stronger and that he has changed so much since he was charged with the subject offending. The relationship is open and honest. The WellStop program developed their ability to talk to each other about their feelings such that they have become closer and have a better understanding of each other.
In cross-examination, GD said that she was not aware of the offending until it became public and agreed that the conduct was covert and hidden from her. However, the family does not now have a computer in a private area of the house and this is part of the way they have gone about restructuring their lives, including following advice from professionals.
GD was an impressive, credible and reliable witness whose evidence the Tribunal accepts.
Evidence of AD
The Tribunal received a statement from AD dated 9 April 2019,[6] a statement dated 2 September 2018[7] together with a bundle of documents provided in support of AD’s hearing by the New Zealand Health Practitioners Disciplinary Tribunal[8] including a statement (at page 164 – 165).
[6] Exhibit B.
[7] Exhibit A, G Documents, pages 90 – 96.
[8] Ibid, pages 163 – 224.
The Tribunal also had before it a letter from the Australian Consulate General Auckland dated 9 March 2011 addressed to AD.[9] It relevantly reads as follows:
Thank you for completing the Consent to Disclosure of Convictions form. Your New Zealand conviction record dated 4th of March 2011 was fully examined and it has been determined that, based on that information, you should be eligible for the grant of a Special Category Visa (SCV) …
[9] Ibid, page 156.
The letter goes on to explain that, in accordance with s 32 of the Act, a New Zealand citizen may be granted an SCV on arrival in Australia. Upon arriving in Australia, AD was to complete the Incoming Passenger Card (“IPC”), declare that he has a previous criminal conviction, and present the completed IPC, his passport, and the letter to the airport officer. A decision to then grant or refuse a SCV will be made at the time of entry to Australia.
AD was asked to explain that letter. He said that after his sentence he wanted to travel to Australia. He was still under supervision. He contacted the Australian Consulate, fully disclosed his offender history, and enquired what he needed to do to be able to travel to Australia. That letter was the reply. Thereafter, he travelled to Australia without issue. He would, upon arrival, attend border control, complete the relevant card, and produce material including the letter. Following this, the officer would make a phone call and then he was allowed entry. When departing, the procedure would happen in reverse.
AD said that he had made 15 trips to Australia since his conviction and at no point had he ever been refused entry and at no point prior to receiving the NOICC dated 20 September 2016 did he receive any indication that his visa was an issue.
AD was referred to the report of Registered Clinical Psychologist Sue Calvert. She reports that AD’s level of risk is considered likely to remain low as long as he continues to maintain honest and open communication with colleagues, his partner, family and other social supports, amongst other obligations.[10] AD said that in the initial stages he disclosed the offending to his family and close friends, and thereafter the Medical Council and to those to whom he applied for employment. He also advised the Australian Health Board. He said he has not tried to hide his offending and has always sought to “clear the air”.
[10] Ibid, at page 264.
AD said that he now understands this was not a victimless offence. Learning about the offending has been a major part of his development, including developing empathy for victims. This awareness has been brought about through the WellStop program. He now understands what is involved from a victim perspective, but also he has come to understand why he offended.
The WellStop program has given him tools to manage his risk by explaining how he works and deals with stress, mood management, and anxiety. He now adopts a different approach to life and no longer bottles things up. He now has an open and frank communicative relationship with his wife which helps deal with those stresses, mood management, and anxiety that previously he did not properly understand or know how to deal with.
AD explained that he previously travelled to Australia to attend conferences and that his wife, GD, would travel with him and visit her family, after which he would join her and their children. In the future, he would like to continue with that arrangement. He explained that his college is an Australasian College and his inability to enter Australia would impact upon his career and education via attendance at conferences often held in Australia. The head office of his college is in Australia.
AD was before the New Zealand Health Practitioners Disciplinary Tribunal for hearing on 30 March 2011 in relation to the question of his fitness to practice as a medical practitioner. In that Tribunal’s decision dated 18 April 2011, it was determined that he be censored and suspended for a period to expire on 31 July 2011 and thereafter he be permitted to resume practice with certain conditions. AD has met all of those conditions imposed, including treatment with a clinical psychologist until 31 January 2013 and taken such other rehabilitation steps as required by WellStop and the Medical Council. However, he continued with treatment and support services over and above that which he was obliged to complete.
Following his return to practice and in February 2012, AD accepted a position as a consultant radiologist at a hospital in New Zealand. Prior to commencing that work, he authored an email which he distributed to all staff of the hospital advising of his offender history. He said that he had the impression people were talking and this took away any gossip and provided a solution to the problem. He was accepted by the staff and after 18 months was appointed head of the radiology department. He also acted as a Medical Council of New Zealand Clinical Supervisor for an overseas trained specialist.
In 2016, AD was offered and accepted a position in Australia in a small radiology practice. He informed his employer and the relevant Australian medical registration authorities of his offending. He was granted general and specialist registration. Soon after commencing work in Australia, a staff member informed a member of the media about AD’s criminal history and an article about AD was published in the newspaper. AD said in retrospect he might have adopted the same procedure of sending an email to all staff but, given the passage of time and it being a different country, he did not think to do that at the time. After receiving the NOICC, AD and GD decided to return to New Zealand to avoid further adverse publicity, conflict and stress, and in particular distress to the family and their children.
In cross-examination, AD said that he disclosed to the police that he had been viewing the pornographic material for about ten years from the age of 25 years. The offending started to occur when he moved to the United Kingdom. He was alone and without the support of family and friends. He had a relationship breakdown and he was in a bad emotional place. He did not let people know how he felt and the viewing of the material became a coping mechanism to deal with stress, loneliness and anxiety. He said he was struggling. He accessed the material by chance. He was not searching for that type of material but a window opened up on the computer and it came up on the screen after which he would look at such material from time to time. He said his conduct was an outlet and a habitual way of dealing with his personal issues.
At the time he was charged with the subject offending, AD viewed the material possibly weekly in his home office, but not routinely. He accepted that there was some element of compulsivity and that it was his coping mechanism, often arising from things that happened at work. He viewed the material on a web page but never saved that material to a stand-alone file. He never accessed more serious images and always viewed material of a similar type, being at the lowest end of the scale of pornographic material.
At the time of his arrest, AD was a trainee registrar and had almost finished that training. He said the job was stressful and he was very busy and working in an understaffed hospital. At that time, he just completed final exams which were hugely stressful.
AD said he never thought he had a fixation about accessing child pornography. He acknowledged he did not seek help and did not confront it. He said he did not know how to get help and it was only when he was arrested by police that he was forced to face and address what he was doing. He said it was almost a relief that he was found out and that it was finally over.
AD now works in a private practice as a partner. When asked to compare his current position with his work in the hospital, he said that he was not now on call for night work. The patients are not as sick or unwell but both his current and former employment are large radiology practices. He said that he now deals with stress in a different way and that he is a different person. He can now manage stress.
(2) The risk to the Australian community should the visa applicant commit further offences or engage in other serious conduct
Paragraph 11.1.2 of the Direction provides factors to be considered in determining the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct. It relevantly states:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.
(2)In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(3)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
(ii)evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
(iii)the duration of the intended stay in Australia.
(4)Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.
GD was referred to the report of Registered Clinical Psychologist Sue Calvert dated 29 November 2014[11] and in particular the risk of AD reoffending. GD said that the transparency in their relationship remains and that she and her husband read each other much better now than before. She is not aware of any lapse that places AD at risk. She said that after everything that they have been through, she does not believe AD to be a risk of reoffending. She said the transparency extends to all aspects of their life and they have told their respective parents and their friends about the offending. AD was embarrassed and ashamed, but nonetheless shared this information.
[11] Ibid, pages 256 – 276, at page 265.
In the context of AD’s purpose for his intended stay in Australia, and considering the visa being applied for was a Visitor visa, it is unlikely that this will increase the risk of harm. AD’s family visits Australia twice a year for a period of 2 – 4 weeks.
GD argued that since this offending, AD has:
(a)accepted responsibility for his offending and expressed remorse for his actions;
(b)engaged in a number of rehabilitative courses such as WellStop and psychological assistance; those rehabilitative courses included part of his obligation for reinstatement as a medical practitioner which he completed, but also continued engagement with treatment and support services beyond that obligation;
(c)not offended since that time;
(d)travelled back and forth to Australia frequently (approximately 15 times) since his conviction. The Department has known about it; and
(e)has been assessed as being a low risk of reoffending.
The Respondent referred to the Statement of Facts, Issues and Contentions and reminded Tribunal of Direction 79 and its general principles. The Respondent in particular referred to the Principles in paragraph 6.3 as being of critical importance and reflecting community values and standards. The Respondent submits that those Principles provide an expectation that AD had been law-abiding and that he had not caused or threatened harm. Further, it was submitted that the expectation of government is the cancellation or refusal of a visa if a serious crime has been committed. The Respondent referred to paragraph 6.3(3) which states that a non-citizen who has committed a serious crime, including or a violent or sexual nature, and particularly against women or children, should generally expect to be denied the privilege of coming to Australia.
The Respondent generally referred the Tribunal to Part B paragraph 11 and following of the Direction, together with paragraph 8(4) which states that Primary Considerations should generally be given greater weight than the Other Considerations.
The Respondent submitted that the offending was serious, being a serious sexual crime that must be viewed seriously, albeit it was not an offence of violence. It was covert offending. In terms of risk of reoffending, the Respondent referred to the psychological and other reports which state there remained a risk, albeit a low risk, of reoffending. AD’s willingness to confront the issue and be transparent about the commission of the subject offending does not alleviate the risk. It was submitted there remains a risk of reoffending and that there is a low tolerance of risk and hence there can be no expectation that AD be allowed to come to Australia.
The Respondent submitted this was not a victimless crime and it involved the use of the global internet. The material AD accessed could be accessed anywhere, including in Australia. The Respondent summarised the offending over ten years whilst employed in a stressful job. AD had been facing exams and at the time of his arrest was viewing the material possibly weekly. There was no dispute that it was coping mechanism and AD agreed that it was habitual compulsive behaviour.
Conclusion: Primary Consideration A
AD’s offending was serious. The abuse of children in the creation of pornographic material cannot be understated and gains traction from those individuals who seek out and use that material for the gratification of their prurient interests. Although the children depicted in the images are not known, the accessing of such material is conduct which the Australian community would not condone nor tolerate in respect of any person who sought the privilege of being granted a visa to come to Australia. Should AD reoffend, the potential harm to child victims is very serious.
The Tribunal notes, however, that AD only accessed the lowest category of material, when under stress, but never saved or disseminated that material. The Learned Sentencing Judge observed that the images accessed by AD were of the lowest level of well-known groupings of images.
However, the subject offending occurred approximately ten years ago. GD and AD were very impressive and truthful witnesses. As was observed by the Learned Sentencing Judge, the manner in which AD conducted himself after being charged was exceptional. He informed his medical association, his employer, and his friends and family. He did not seek to hide his misconduct or seek to have his name suppressed. He engaged in the court imposed treatment regime and, when completed, he maintained a treatment regime at his own expense. This conduct the Tribunal finds was and remains a clear indication of the determination of AD not to reoffend.
When re-employed at a hospital, the fact that AD authored an email to all staff of the hospital informing them of his offending history further demonstrated the exemplary manner in which he was determined to conduct himself and face responsibility for his misconduct.
AD informed the Australian Consulate General in New Zealand of his offending and enquired about his permit to travel to Australia in the future. The Australian Consulate General fully examined AD’s offender history and informed him he should have no difficulty in travelling to Australia. Plainly that was correct because on 15 occasions from that time until his visa refusal AD travelled to Australia without incident. He was granted approval to move to Australia for employment in a private medical practice. It was only following a fellow employee informing the press of AD’s offender history that any issue has been taken with him by the Department. There has been no change in his personal circumstances to explain why the concern was raised on the current visa application, other than the fact of a work colleague informing the press and the resultant adverse publicity directed at him.
AD has held positions of authority in a New Zealand hospital as head of the radiology department and has supervised an overseas professional. He has not reoffended in the intervening period. GD and AD, whose evidence the Tribunal accepts, both explained how their relationship has strengthened and of AD’s dedication to maintaining an exemplary lifestyle.

The Tribunal accepts that it could not be said that no risk exists in respect of the likelihood of reoffending. However, the Tribunal finds that the risk to the Australian community is very low and that it is unlikely that AD will reoffend. This is evidenced particularly by the ten years of exemplary behaviour since he offended. Further, AD has travelled to Australia on 15 occasions since that time. On balance, given the very low risk to the Australian community, the Tribunal gives only slight weight to Primary Consideration A in favour of the Respondent.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 11.2 of the Direction sets out the next Primary Consideration the Tribunal should have regard to, and relevantly provides:
(1)Decision-makers must make a determination about whether refusal is, or is not, in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant the visa is expected to be made.
(3)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.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
AD has three minor daughters (S aged 10, H aged 8, and M aged 5) who are all dual Australian and New Zealand citizens. These children have always been in the care of AD and GD and this positive parental role will remain into the future.
At the time of his arrest AD and GD had one child. GD was pregnant. That child was assessed by Child Youth and Family Services Wellington to determine whether that child required care and protection. There is no evidence before the Tribunal detailing the outcome of that assessment however, given that child continued to reside with GD and AD, the Tribunal infers no issue was raised.
If AD is not granted a Visitor visa, then the children’s holidays to Australia would likely be less enjoyable, particularly on special occasions and celebrations where it is in their best interests that the whole family be present.
The Respondent concedes that it is in the best interests of the children for the visa to be granted, however notes that any separation between the children and AD would be only for a short period.
Conclusion: Primary Consideration B
The concession by the Respondent is that it is in the best interest of the children for the visa to be granted is rightly made. AD has travelled to Australia regularly for both work and family events. Insofar as the family events are concerned, it has been with GD and their children. It is in the best interests of the children that he be permitted to continue to be part of those family occasions. The Tribunal accepts that the three children were upset that their father could not join them when they were last in Australia and expressed the hope that he could join them on the next occasion they travel to Australia.
The children are still young, enjoy a loving relationship with their father, and they have a strong family bond. The Tribunal finds that Primary Consideration B weighs heavily in favour of the revocation of the refusal of the AD’s Visitor visa.
Primary Consideration C: Expectations of the Australian Community
Paragraph 11.3 of the Direction sets out the third of the Primary Considerations the Tribunal should have regard to, and relevantly provides:
(1)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 refuse the visa application of such a person. Visa refusal 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 be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.
Further, paragraph 6.3(5) of the Direction provides:
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.
The evidence in relation to this Primary Consideration is referred to above and will not here be repeated.
GD submitted that, as the risk to the Australian community is negligible, it follows that granting AD a visa would not be counter to the community’s expectations. AD’s remorse and commitment to rehabilitation should also be recognised, as well as the fact that he has previously entered Australia without incident.
The Respondent submitted that, giving effect to the ‘norm’ which naturally weighs in favour of refusal, this Primary Consideration C weighs against the granting of the visa. The Respondent submitted that this Primary Consideration is intrinsically linked to the first Primary Consideration A.
The Respondent referred to paragraph 11.3 of the Direction and submitted where there is a breach of trust it may be appropriate to refuse a visa. As to the nature of the character concerns, the Respondent conceded that these are to be considered at the time of the decision. However, it was not for the Tribunal to decide what the view of the community was but to give effect to the norm.
Following the hearing, the decision in FYBR v Minister for Home Affairs (“FYBR”)[12] was handed down and the parties were given the opportunity to provide further written submissions, which were received.
[12] [2019] FCAFC 185.
Conclusion: Primary Consideration C
FYBR, which binds the Tribunal, involved the consideration of a visa refusal and the approach in applying, in particular, Primary Consideration C. Charlesworth J at [67] said “the extent that cl 11.3 contains a statement of the expectations of the Australian community, the clause is “deeming”, in the sense explained by Mortimer J in the limited passage from YNQY upon which the Tribunal relied … It is not for the decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a “primary consideration.” Her Honour continued “… I prefer to describe the clause as imputing or ascribing to the whole of the Australian community and expectation that holy aligns with the expectations of the executive government of the day in respect of its subject matter.”
The government of the day has deemed what is the community expectation. As Charlesworth J explained, paragraph 11.3 provides two expectations. The first expectation is contained in the first sentence of that paragraph, namely, “the Australian community expects non-citizens to obey Australian laws while in Australia.” In relation to that first expectation, Charlesworth J at [75] explained “… cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa application refused.”
Accordingly, it is the expectation of the Australian community that AD obey Australian laws and that expectation has not been met because, by his offending, he cannot pass the character test pursuant to s 501(6)(e) of the Act. It is not for the Tribunal to make its own assessment of community expectations. By this failure to pass the character test, the deemed expectation has not been met.
As to the second expectation, Charlesworth J referred to the second and third sentences of paragraph 11.3 of the Direction which state:
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 refuse the visa application of such a person. Visa refusal 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 be granted a visa.
Charlesworth J explained that determining whether it was appropriate to act in accordance with the community expectation was a matter for the Tribunal to determine in the exercise of its discretion as to how much weight is to be given to this expectation. Her Honour said that flexibility is reinforced by paragraph 8(4) “… which requires no more than the government’s assessment of the community expectations is “generally” to be afforded greater weight than the “other consideration” … The word “generally” contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors.” Her Honour then said “There may be cases in which it is not appropriate to give the community expectations discerned under cl 11.3 any weight at all.”
Had this application been considered at a time approximate to the subject offending, the community expectation may generally be afforded greater weight. However, it is significant that ten years have passed since the offending and there are a lot of factors relevant to AD that significantly impact upon the weight to be given to this Primary Consideration. They include:
·that AD offended when suffering stress in circumstances where he had not learnt coping mechanisms to deal with that stress;
·that his offending was at the low end of the scale of offending of that type, involving the lowest category of well-known grouping images;
·the manner in which AD conducted himself when charged by immediately notifying his employer, family and friends and his medical association of the charges;
·That AD did not hide his offending but was open and frank about it;
·that AD completed his counselling treatment and support services that was a condition of the sentence but thereafter at his own expense engaged in further similar treatment and support in an effort to minimise the risk of reoffending;
·the change in his family relationship and how he communicates with GD in an open and frank way has strengthened their relationship and provides a further level of support to ensure he does not reoffend;
·that any computer in the home is not in a private place but is in an open space accessed by the whole family so as to ensure that there can be no covert use of that computer;
·that when returning to employment in a hospital he authored an email to all staff advising of his offending; and was thereafter embraced by all staff and ultimately was appointed the head of his department, and held a supervisory role in training an overseas practitioner; and
·that he has with his family and for the purposes of attending conferences with his college, travelled to Australia on 15 occasions, and had been provided a visa to reside in and work in Australia in his area of medical speciality.
As the Learned Sentencing Judge noted, AD dealt with his offending responsibly and made it very clear the regard he had for him. His Honour noted that AD conducted himself in a responsible and professional manner and never shirked or hid from his position. The Tribunal accepts the Learned Sentencing Judge’s findings in respect of AD. Indeed, the Tribunal similarly observed him to be, but for his offending, an otherwise exemplary person.
Having regard to the whole of the evidence, the fact that the subject offending occurred ten years ago, the manner in which AD conducted himself from the moment he was charged, and noting that he has been to Australia on 15 occasions since being sentenced without incident or concern, are such as to enliven the Tribunal’s discretion to reduce the weight that might otherwise be given to this Primary Consideration. In the unique circumstances of this matter it is not appropriate to give this Primary Consideration any weight, and accordingly Primary Consideration C is to be given neutral weight.
The Other Considerations
In deciding whether to cancel a visa, Other Considerations must be taken into account where relevant. These considerations, as set out in paragraph 12(1) of the Direction, include, but are not limited to:
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims; and
(d)Impact on Australian business interests.
The Tribunal will address these Other Considerations, where relevant, in turn.
Other Consideration 1: International non-refoulement obligations
No evidence was advanced that is relevant to this Other Consideration. This Other Consideration is of no weight.
Other Consideration 2: Impact on family members
Paragraph 12.2(1) of the Direction provides that, where relevant, decision-makers must have regard to the following:
Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
AD’s wife, GD, is an Australian citizen, and their three children are dual Australian and New Zealand citizens, all of whom reside in New Zealand with AD and GD. The family frequently travelled to Australia to visit GD’s family, in particular her parents who are both Australian citizens.
If AD is refused a Visitor visa, his wife and children would be deprived of enjoying family holidays together with him in Australia. AD’s in-laws would no longer have the opportunity to see him in Australia or potentially at all given they are elderly and his mother–in-law was described as becoming frail.
The Tribunal received an unsigned undated letter from GD’s mother, CB,[13] who said that she was extremely upset when AD was unable to attend her 70^th birthday. She said it was not a complete family celebration whilst he was absent. Further, she said that they are a small family, she has no siblings, and AD is an integral part of their family. She described her grandchildren as being upset to have a family holiday without their father, and that GD missed his support when managing the children and their needs during that holiday.
[13] Exhibit D.
CB also said that GD wanted to celebrate her 40^th birthday in Australia, being her home country, and would like to have AD with her and the children for that celebration and she expressed the wish that AD be permitted to visit Australia in the future to offer support and be part of the family and family celebration.
Conclusion: Other Consideration 2
AD and his family have travelled regularly to Australia as a family, and particularly to spend time with GD’s family and elderly parents who live in Australia.
In circumstances where AD has travelled regularly to Australia since his offending without incident, is supported and been part of family holidays and celebrations, and bearing in mind his very low risk of offending and that neutral weight has been given to Primary Consideration C as referred to above, it is appropriate that he continue to travel with his family to Australia in the future.
The Tribunal finds that this Other Consideration 2 weighs heavily in favour of AD and the revocation of the visa refusal.
Other Consideration 3: Impact on victims
No evidence was advanced that is relevant to this Other Consideration. This Other Consideration is of no weight.
Other Consideration 4: Impact on Australian business interests
No evidence was advanced that is relevant to this Other Consideration. This Other Consideration is of no weight.
There are no more Other Considerations that arise on the available evidence.
CONCLUSION
Section 501(1) of the Act stipulates two conditions precedent to the exercise of the discretion to refuse AD’s visa. It must be considered, firstly, whether or not AD passes the character test and, secondly, whether the discretion to refuse to grant the visa should be exercised.
Based upon AD’s serious offending, he does not pass the “character test” as defined in s 501(6) of the Act. In then considering whether the discretion in s 501(1) of the Act should be exercised to refuse the visa, the Tribunal has had regard to those considerations referred to in the Direction. Accordingly, the Tribunal finds:
(a)Primary Consideration A weighs slightly in favour of the Respondent;
(b)Primary Consideration B weighs heavily in favour of AD;
(c)Primary Consideration C is of neutral weight; and
(d)The combined weight of the Other Consideration 2 together with Primary Consideration B which both weigh heavily in favour of AD is such that they outweigh Primary Considerations A and C, which the Tribunal has given slight and neutral weight respectively in favour of the visa refusal.
The Tribunal therefore finds that, taking into account all of the relevant considerations in the Direction, they do not weigh in favour of the visa refusal.
Consequently, the Tribunal does not exercise the discretion to refuse AD’s visa.
DECISION
For the reasons outlined above, the decision under review is set aside and remitted to the Minister for reconsideration with a direction that the discretion in s 501(1) of the Act be exercised in favour of the Applicant.

116.

117.

I certify that the preceding 115 (one hundred and fifteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

........[Sgnd]........................................
Associate
Dated: 6 January 2020

Date of hearing: 16 October 2019

Advocate for the Applicant: Mr Mitchell Simmons, MSM Legal

Advocate for the Respondent: Mr Cameron Retallick, Australian Government Solicitor

[2020] AATA 4

6 January 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Remedies

Statutory Construction

Date of hearing:	16 October 2019
Advocate for the Applicant:	Mr Mitchell Simmons, MSM Legal
Advocate for the Respondent:	Mr Cameron Retallick, Australian Government Solicitor