DWHX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2023] AATA 336

DWHX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 336 (6 February 2023)
Division:GENERAL DIVISION
File Number: 2022/9472
Re:DWHX
APPLICANT

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

Decision
Tribunal:Senior Member N A Manetta
Date of decision: 6 February 2023
Date of written reasons: 7 March 2023
Place:Adelaide

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review made by the delegate of the Respondent dated 22 April 2022 and substitutes a decision that the Applicant's visa not be cancelled under section 501(2) of the Migration Act 1958 (Cth).
..................[SGD]..................
Senior Member N A Manetta
Catchwords
MIGRATION – discretionary cancellation of Applicant’s visa under s 501(2) of the Migration Act 1958 (Cth) ‒ applicant convicted in 2002 of eight counts of incest-based paedophilia –applicant assumed not to pass the character test – whether “another reason” for cancellation decision to be revoked – exercise of discretion under Direction 90 – very low risk of reoffending – otherwise insignificant criminal record – significant Australian ties – decision under review set aside
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Criminal Code 1889 (Qld)
Migration Act 1958 (Cth)
Cases
Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119
Secondary Materials
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)
REASONS FOR DECISION
Senior Member N A Manetta
7 March 2023

After I delivered my decision with oral reasons on 6 February 2023, I received a request for written reasons, which I now publish. These are the reasons I read out to the parties with minor amendments.
This is an application by ‘DWHX’, a person whose name is subject to a confidentiality order and to whom I shall refer in these reasons as ‘the applicant’. The applicant seeks a review of the decision of the respondent’s delegate dated 22 April 2022. By that decision the delegate cancelled the applicant’s class BB subclass 155 five-year resident return visa under section 501(2) of the Migration Act 1958 (Cth) (‘the Act’). As a result of this decision, the applicant’s permanent resident’s visa was also cancelled: see section 501F(3) of the Act. As a result of his visa cancellation, the applicant became what is known as ‘an unlawful non-citizen’,[1] and he subsequently entered an immigration detention centre in Queensland, Australia.[2] The applicant chose to enter immigration detention rather than return to the United Kingdom, his country of birth. I understand that he has been held in immigration detention since November of last year.
[1] Pursuant to s 15 of the Act.
[2] Pursuant to s 176 of the Act.
The delegate had to form two conclusions before considering the exercise of the discretion under section 501(2) of the Act. First, the delegate had to suspect reasonably that the applicant did not pass the character test; and, secondly, the applicant had to fail to satisfy the delegate that he did in fact pass the character test (after being notified of the respondent’s suspicion to the contrary in this regard). By s 501(6)(e)(i), a person who has been convicted of a sexually based offence against a child does not pass the character test. The applicant was convicted of such an offence in 2002. It was not in issue before me that the applicant does not pass the character test in the circumstances.[3]
[3] I note that section 501(6)(e)(i) was introduced in 2014 by an amending Act. No argument was addressed to me by the applicant that child-sex offences preceding the entry into force of section 501(6)(e)(i) may not be used by a delegate to found a decision that the applicant does not pass the character test. I have decided the application before me on the assumption that pre-amendment child-sex offences may be so used.
The preconditions for the exercise of the discretionary power having been met, the delegate turned to consider the exercise of the statutory discretion in section 501(2) of the Act. The exercise of the discretion was required to be informed by Direction no. 90,[4] (‘the Direction’) issued under section 499 of the Act. The delegate weighed the relevant considerations under the Direction and decided on balance that the statutory discretion under s 501(2) ought to be exercised. The applicant’s visa was then cancelled.
[4] “Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA”.
TRIBUNAL’S TASK
Hearing the matter afresh on the evidence adduced before me, I must address the same two aspects of this decision-making process. So far as the first question is concerned, I have already indicated that the applicant does not pass the character test.[5] It follows that the only substantial question before me involves the re-exercise of the statutory discretion in section 501(2) of the Act. Like the delegate, I must apply the Direction in considering the exercise of the discretion.
[5] Given the assumption referred to in fn.3 (above).
In matters like this, the Tribunal conducts a hearing on the merits, reaching the correct or preferable decision on the evidence before it.[6] I hear oral evidence and submissions, receive written documents and written submissions, make findings of fact, and draw my own final conclusions. I do not merely review the delegate’s decision for error. This manner of proceeding implies that I may affirm the decision under review notwithstanding the presence of an error in the delegate’s reasons if that is the correct or preferable decision on the evidence before me.[7] Equally, I may set aside the decision under review notwithstanding the absence of any discernible error in the delegate’s reasons if that is the correct or preferable decision on the evidence.[8]
[6] See, for example, Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 at [98] and [141].
[7] Pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act (1975) (Cth) (‘AAT Act’).
[8] Pursuant to s 43(1)(c) of the AAT Act.
At the hearing before me, Mr Aleksov appeared for the applicant; Mr McGlade, for the respondent.
STATEMENT OF CONCLUSION
I have decided to set aside the decision under review and to substitute a decision that the applicant’s visa not be cancelled under section 501(2) of the Act. I now turn to set out the background facts and my reasons for this conclusion.
BACKGROUND FACTS
The applicant is a citizen of the United Kingdom who was born there in November 1962. He was, accordingly, 60 years of age at the time of the hearing before me. He came to Australia with his family as a 10-year-old boy and has lived all his subsequent life in Australia.
The applicant has had a number of occupations in Australia. I need not list them. More recently, he has successfully operated his own window-cleaning business. He has done so for some 20 years. He has been married twice. His first marriage, to ‘R’, took place in the early 1990s. That marriage formally ended in 2017. There were three children from the marriage: two sons and one daughter. The applicant has since remarried ‘O’, whom he is seeking to sponsor to come to Australia. She is not a citizen of Australia and currently resides in New Zealand.
The applicant’s criminal offending was the subject of evidence before me. He was prosecuted in the Brisbane Magistrates Court in 1981 for driving whilst having a blood alcohol reading of 0.09%. He was convicted and fined $150.[9] He also lost his licence for one month. Some five years later, on 24 June 1986, he was found guilty of having assaulted a police officer and of having resisted arrest (on 11 February 1986). He was also found guilty of a breach of bail in respect of his failure to attend court to answer the charges.[10] The evidence before me discloses that no action was taken in respect of the offences and the applicant was, in fact, discharged under section 657A of the Criminal Code 1899 (Qld), then in force. I have examined the terms of section 657A as it stood at the time of the applicant’s sentencing. It permitted the Court to find the applicant guilty but to discharge him without recording a penalty or imposing a punishment if certain preconditions were met.
[9] See Exhibit 15, p.1.
[10] Ibid.
As of my decision today, these offences took place some 37 years ago. In my opinion, bearing in mind their age and the fact that the applicant was discharged under s 657A of the Criminal Code 1899, I do not believe they have any real relevance to my decision. In any event, they would not have been ‘a tipping point’ in my deliberations, so to speak, so that I might have reached a contrary conclusion if they had been given any substantial weight. I need not mention them again.
At this point, I would also mention that the applicant has accumulated a number of fines for speeding and traffic offences.[11] These are required to be taken into account but they are not of such a scale nor are they so serious that they would represent a tipping point. I accept the evidence given by the applicant that in some cases the offences were not his but that he took on the associated “demerit points” because his company’s car was being driven by an employee. It would appear this involved the applicant in making false statutory declarations recording that he was the driver of the car. The making of a false statutory declaration is a serious offence that is punishable by imprisonment. Nevertheless, I do not regard the making of false declarations in this case as a particularly serious example of what is ordinarily a matter of real concern. I accept that the making of the declarations would have been seen merely as a convenient way to ensure the demerit points were attributed to the applicant as in effect the owner of the company vehicle that was being used (rather than to the actual driver). It was very inappropriate behaviour, but again, I do not regard it as behaviour which would represent a tipping point in my deliberations even when it is added to the other matters to which I have already referred. I need not refer to this behaviour again.
[11] Exhibit 15, pp 21ff.
The convictions which led the delegate to cancel the applicant’s visa involve very serious offending; namely, the indecent treatment by the applicant of his daughter (in circumstances of aggravation). This offending occurred between May 2000 and July 2001; that is, over a period of approximately 13 months. There were eight counts laid in the indictment and there was a conviction in relation to each count. The applicant pleaded guilty at the earliest opportunity to all eight counts. The daughter was aged between five and six at the time of the offending according to the sentencing remarks which were before me.[12]
[12] See Exhibit 1, pp 39ff. The applicant was sentenced in May 2002.
I shall not recapitulate the offending as it is described in detail in the sentencing remarks, which I have read carefully. I note the following features of the matter. First, after the final offence, the applicant voluntarily told his then wife, R, what had occurred. I accept, as Professor Coyle[13] pointed out in his evidence to me, that this a most unusual circumstance in the case of sex-offenders. On the evidence before me, R had suspected nothing before being told. Secondly, the Court found expressly that if the applicant had not spoken to R, nothing at all would have happened to the applicant, or, at most, because of his daughter’s lack of memory only one of the eight counts would have been revealed. In my opinion, in disclosing his offending to R, the applicant must have appreciated he was taking a risk; namely, that R would report him to the police or that the matter would come to the attention of responsible authorities in some way or another. As a matter of fact, it appears that R ended up disclosing the offending to a friend, who then contacted the Department of Family Services, which eventually reported the matter to the police. From there, the applicant was charged. The sentencing Court found that the child had a memory of only one offence (either count four or count five) and the Court further found that, so far as it could ascertain from the papers before it, the effect on the daughter had been minimal.
[13] Professor Coyle is an expert forensic psychologist who gave evidence at the hearing.
The Court also found the applicant was considerably remorseful and contrite. This had been demonstrated by his disclosure to R and by his later conduct.
The Court referred to the fact that the applicant had received counselling from two professionals, one of whom was Dr Walsh, a psychologist. The Court found Dr Walsh’s report “most helpful and frank”.[14] The Court noted that Dr Walsh had expressed the opinion that there was “nothing to indicate” that the applicant was “a paedophile”.[15] Rather, the applicant “offended for a collection of reasons” which Dr Walsh “sets out in the report at length”.[16]
[14] Exhibit 1, p 43.
[15] Ibid.
[16] Ibid.
Dr Walsh’s report was before me.[17] I do note that it is inaccurate, strictly speaking, to say that Dr Walsh had said that the applicant was not a paedophile. Dr Walsh makes it clear that the applicant satisfied the definition of paedophilia recorded at p 6 of the report; namely, ‘paedophilia is a disorder, the essential features of which are recurrent intense sexual urges and sexually arousing fantasies of at least six months duration, involving sexual activities with a prepubescent child’ on which a person has acted or by which the person has been markedly distressed.[18] The applicant clearly satisfied this definition. When the sentencing Court made its observation, however, I think it was referring, rather, to other aspects of the report where Dr Walsh concludes that there was no evidence to suggest that the applicant had a developmental history consistent with a primary sexual orientation towards children; that Dr Walsh was not aware of any information suggesting that the applicant had extended his offending to persons outside his immediate family; and that there was no evidence to suggest that the applicant presented a danger to the community at large. In that sense, the applicant was not a paedophile in the Court’s view; but the applicant had certainly formed a deviant interest in his own prepubescent daughter for the reasons set out in Dr Walsh’s report. I shall return to the report in due course.
[17] Exhibit 5.
[18] Exhibit 5, p.6.
I note that the sentencing Court categorised the applicant’s earlier offending, to which I have also referred, as “slight”,[19] and these offences were found to be of no importance in the Court’s sentencing process.
[19] Exhibit 1, p.45.
The Court decided against what it described as “the usual course”;[20] namely, a custodial sentence to be served in prison. The Court determined that the more appropriate order in the applicant’s case was an intensive correction order of ten months. This order was a sentence of imprisonment, but it was to be served in the community subject to strict conditions. These conditions were set out in the Court’s remarks. Some of the more pertinent conditions are as follows:[21]
(i)the applicant was to report to and receive visits from authorised corrective services officers at least twice in each week;
(ii)the applicant was to take part in counselling and satisfactorily attend other programs as directed by the court or an authorised corrective services officer during the period of the order;
(iii)the applicant had to perform satisfactorily any community service that an authorised corrective services officer directed be performed during the period of the order; and
(iv)the applicant had to comply with every reasonable direction of the authorised officer including any requirement by the officer that the applicant submit to medical, psychiatric or psychological treatment.
[20] Exhibit 1, p. 46.
[21] Exhibit R1, pp 47-48.
There is no evidence before me, and the respondent did not submit to me, that the applicant failed to comply with these conditions or that he has committed any offences of this type since July 2001.
On the evidence before me, it is not apparent why the respondent’s department decided in August 2019, some 18 years after the child-sex offending had ceased, to issue a notice to the applicant advising of an intention to consider cancelling his visa under the Act.[22] That occurred, however. In the event, the applicant responded to the notice on 20 August 2019[23] and requested that the statutory discretion not be exercised against him. Again, for reasons that are not clear to me, the delegate took over two years to finalise the question of whether the visa would be cancelled.[24] For whatever reason, the applicant only received the notice some three months after the cancellation decision was finalised.
[22] Exhibit 1, G7, pg 52.
[23] Exhibit 1, G9, pg 63.
[24] That being the decision under review by this Tribunal for which the applicant received a notification from the respondent’s department on 22 April 2022.
I would note that it is self-evidently unsatisfactory that a decision-maker should take this long to make a decision. The decision facing the delegate might have life-altering consequences for the applicant, and the ongoing uncertainty no doubt caused him considerable stress: he did not know for some years whether his longstanding right to remain in Australia was to be terminated. That is a matter I bring to the respondent’s attention with a recommendation that the Department’s administrative processes in this case be examined for their adequacy and fairness.
The delegate applied the Direction, which had come into force by the time the decision was made. The Direction had superseded Direction 79, which was the basis of the applicant’s submissions to the delegate. As I have indicated, the delegate decided, after weighing the considerations specified in the Direction, to cancel the applicant’s visa.[25]
[25] The delegate’s statement of reasons appears in Exhibit 1, pp. 21ff.
As I have indicated, I too must apply the Direction in deciding whether the correct or preferable decision on the evidence before me is to cancel the applicant’s visa.
RE-EXERCISING THE DISCRETION IN ACCORDANCE WITH THE DIRECTION
I now turn to consider the Direction. I frequently refer to certain earlier prefatory remarks I made in the matter of Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119 at paragraphs [32]ff. This case concerned the mandatory cancellation of a person’s visa, rather than a discretionary cancellation, but what I said in that case applies, mutatis mutandis, to a case of discretionary cancellation under section 501(2) of the Act. I usually set these paragraphs out, and I do so again here:
32I first make some prefatory remarks about Direction 90. It is clear that the Direction is framed against the stated objective of the Act which is to regulate in the national interest the coming into and presence in Australia of noncitizens: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(3) to consider the specific circumstances of the case in deciding whether to exercise the discretion to revoke the cancellation decision. The explicit purpose of the Direction is to guide decision-makers in performing their discretionary functions under the Act: see paragraph 5.1(4).
33I have considered the principles that appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. These principles are set out against paragraphs numbered (1) to (5). I set out some of the salient features of these principles without setting them out in exhaustive detail.
34First, remaining in Australia is a privilege conferred on noncitizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, noncitizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas where noncitizens have engaged in conduct that raises serious character concerns. This expectation arises regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by noncitizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the noncitizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove insufficient to revoke a mandatory cancellation. In particular, I note that the inherent nature of certain conduct such as family violence or conduct mentioned in paragraph 8.4 (2) is so serious that even strong countervailing considerations may be insufficient in some circumstances to warrant revoking a mandatory cancellation even if the noncitizen does not pose a measurable risk of causing harm to the Australian community.
35I have had regard to these principles and accept them as the framework within which I must approach my task of deciding whether to revoke the mandatory cancellation of Mr Rai’s visa.
36Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that section 7 directs me to give appropriate weight to information and evidence from independent and authoritative sources. Section 7 also directs me to give greater weight “generally” to primary considerations over other considerations.

I note the principle in paragraph 8.1(1) of the Direction. I do bear in mind that the Government is committed to protecting the Australian community from harm and that I should have particular regard to the principle that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they have been law-abiding and will not cause or threaten harm to individuals or the Australian community.
By subparagraph (2) I must give consideration to (a) the nature and seriousness of the applicant’s conduct to date, and (b) the risk to Australian community should he commit further offences or engage in other serious conduct.
By subparagraph (1) of paragraph 8.1.1, when considering the nature and seriousness of the applicant’s criminal offending or other conduct to date, decision-makers must have regard to a number of matters set out in paragraphs (a) to (g). It is sufficient, in my opinion, for me to focus on the sexual offending. The applicant’s prior driving record, his making of false statutory declarations, and his earlier assaults upon police have not, either singly or in combination, been a tipping point in my deliberations as I have said. I am obliged under the Direction to consider them, and this part of the Direction formally asks me to assess them. I have done so, but I do not need to set out my thinking on these matters in these reasons given what I have said about their weight.
Quite clearly, the sexual offending, being a sexual crime against a child and also an act of family violence as defined, must be taken extremely seriously. I note that paragraph (c) of paragraph 8.1.1 makes it clear that I need not have regard to the sentence imposed by the Court, as an act of family violence is always to be regarded seriously. Nevertheless, the sentence imposed by the Court made it clear that the offending was not at all minor.
The applicant offended eight times over a course of some 13 months. The applicant’s offending assumed increasing seriousness over that period. I take that into account but I must also take into account the fact that there was only one course of offending of this type in the entire 42 years of the applicant’s adult life here in Australia and there has been only one victim.
So far as the cumulative effect of repeated offending is concerned, this is somewhat problematic since the sentencing Court adverted to the fact that the daughter had no substantial memory of the individual counts at the time of sentencing . But I do bear in mind that since then, she must have discovered the extent of the offending. That information may well have had a substantial impact upon her psychologically: it would be surprising if it had not.
I now turn to consider the risks to the Australian community under paragraph 8.1.2 of the Direction should the applicant commit further offences or engage in other serious conduct. Subparagraph (1) sets out an important principle. It requires decision-makers to have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Indeed, some conduct in the harm that would be caused, if it were to be repeated, is so serious that any risk that may be repeated may be unacceptable. I bear that principle in mind.
By subparagraph (2), I must have regard to two matters “cumulatively” when assessing the risk that the applicant poses to the Australian community; namely, the nature of the harm to individuals should the applicant commit further offences and the likelihood of his so doing taking into account the matters referred to in subparagraphs (i) and (ii).
On the assumption that the applicant engages in further criminal or other serious conduct, the harm to be suffered by individuals in the Australian community would be extreme. There is no doubt that sexual molestation can lead to profound psychological problems in a child; and those closest to the child (including parents amongst others) suffer grievously in their own right when learning that the child has been abused. This offending is entirely reprehensible, and Professor Coyle indicated in his evidence that it is always considered violent in his professional judgment. So it is quite clear that this sort of offending, particularly when it takes place over a course of time, falls into an extremely serious category.
I must also assess “cumulatively” the likelihood of the applicant engaging in further criminal or other serious conduct. There are a number of matters that I believe I ought to bear in mind. First, this is a highly unusual case. I am not required to assess the risk of the applicant reoffending in circumstances where he has only recently committed an offence. Rather, I am required to assess the applicant’s future risk of reoffending 20 years after the only course of such offending has taken place.
Secondly, the respondent did not commission a current expert report of its own, although it did tender certain academic writings it had used in cross-examination of Professor Coyle.[26] The applicant led evidence from Professor Coyle who is an acknowledged expert in the field of forensic psychology. He provided reports[27] and also gave oral evidence. I also had Dr Walsh’s 2002 report before me, which, as I have said, the sentencing Court found helpful.
[26] Exhibits 16 and 17.
[27] Exhibits 3,4 and 6.
The respondent took issue with Professor Coyle’s report and the thrust of the submission was that Professor Coyle was wrong to assess the risk of this applicant reoffending as minimal or remote[28] although the respondent accepted that the risk of the applicant reoffending was low.
[28] Exhibit 6, at [14].
As part of my review, I must assess the matter for myself. I see no reason why I should not rely on Dr Walsh’s report as an accurate statement of the situation in 2002. Dr Walsh was clear that, had the applicant not disclosed his offending to his wife, his risk of reoffending would have remained high.[29] But he did disclose the offending. Once that occurred, the risk lowered in Dr Walsh’s view. Others in the family circle became aware of his offending. Dr Walsh indicated that he believed the victim of the applicant’s offending might be at further risk once she reached puberty.[30] He suggested that this time in her life would need to be monitored carefully. But I bear in mind that S must be now in her mid-twenties and that she is not at risk of any paedophile assault by definition. Moreover, there is no suggestion that the applicant might attempt to molest her now that she is an adult.
[29] Exhibit 5, p. 9.
[30] Ibid.
Dr Walsh also makes it clear in his report that there is no evidence to suggest that the applicant has a wider sexual interest in children. He listed, as separate categories, incest-based paedophilia and a deviant sexual interest in children in the wider community (although I suppose there must be cases where an offender falls into both categories). He was clear in his report that there was no evidence that the applicant had this wider perversion.[31] The reasons for the applicant’s offending are set out in the report at page 11, paragraph 8(d). Dr Walsh regarded the offending as a distorted transfer of sexual interest to S, as a substitute for R, his then wife, with whom his relationship was poor . The applicant is now in a new marriage, and there is no suggestion that the applicant is at risk of making the same perverse transfer to some other child at this stage of his life.
[31] Exhibit 5, p.8.
Dr Walsh indicated his view of the prospects of reoffending as at 2002. He noted that the applicant had engaged in treatment and made good progress but required a period of further treatment and monitoring. He recommended continued treatment as an appropriate condition of any court order. I have already referred to the sentencing Court’s orders in this regard.
It is of significance that the applicant has a history in the community of some 20 years’ duration after the offending. I need to take this history into account. It discloses no perverse interest in children. I note that the pastor of the applicant’s church was informed of the offending at the time, as was the present pastor of the applicant’s church (who has written a reference in support).[32] A church community would be one place where a person minded to abuse a child could seek out victims. The applicant’s candour with his most recent pastor in this regard is contrary to the usual modus operandi of paedophiles, who seek to disguise their offending.
[32] Exhibit 13.
It seems to me that the applicant’s history, which as I say is not a matter of conjecture but one of objective fact, can only confirm the good prospects of rehabilitation adverted to in Dr Walsh’s report in 2002. Dr Walsh’s risk assessment has proven to be accurate: it has been borne out by the applicant’s subsequent life.
Professor Coyle was called to give evidence on behalf of the applicant. Professor Coyle’s opinion was that the applicant’s chances of reoffending were remote, so remote as to be minimal or close to zero.
There was some considerable cross-examination of Professor Coyle. It is fair to say that Professor Coyle justified his conclusion in two ways. First, he applied certain diagnostic tests that indicated, in his opinion, that the applicant posed a very low risk of reoffending. It is clear, however, that in applying those tests Professor Coyle overlooked the fact that the applicant’s offending had actually become more serious during the course of the 13 months. He appropriately and frankly conceded that error in cross-examination.
Secondly, Professor Coyle concluded that statistical evidence demonstrated that the applicant’s risk of reoffending (after 20 years of no offending) was close to zero. In drawing this conclusion, Professor Coyle relied on his own undoubted expertise in this regard. Professor Coyle was very familiar with the published material concerning the evaluation of risk that sexual offenders pose to the community at periodic intervals after their release from gaol.
I accept that longitudinal studies demonstrate that the longer a high-risk child sex offender remains offence-free, the lower his chances of reoffending. That appears to be the conclusion, for example, from a paper in respect of high risk sex offenders that was tendered by the respondent.[33] Interestingly, this paper indicated that the recidivism rates of low-risk offenders remained consistently low after five and ten years.
[33] See Exhibit 17: Hanson, K et al, “High Risk Sex Offenders”, Journal of Interpersonal Violence, (2013).
In my opinion, however, it is important to bear steadily in mind the appropriate use of statistical evidence. Statistical evidence of this type is concerned with behaviour across a large sample, and the sample must, of course, be large in order that appropriate conclusions may be more safely drawn. In that sense, the risk of a person reoffending after any particular period of time may be measured as a simple proportion of the large sample number. One typically arrives at percentages and expresses the chances of recidivism as that percentage (e.g., 0.5%, 1%, or 5%).
This information may be useful where it confirms a conclusion otherwise reached in relation to the individual. But I must say that I would hesitate to use it as a primary tool to estimate the risk of recidivism for an individual without there being a very close examination and evaluation of the individual concerned and a conclusion drawn in relation to that person without reference to statistical information.
An example may make my point clearer. If the applicant in this case had been shown to have regularly accessed child pornography whilst living in the community or more recently in detention, that factor would suggest ‒ strongly, in my opinion ‒ that however long the applicant may have lived offence-free in the community, he has retained a perverse disposition on which he was willing to act through the accessing of illicit pornography. Such information would be highly relevant to the question of his future risk of abusing a child, in my opinion. In the example I have just given, any statistical evidence suggesting that a person who has lived offence-free for many years in the community has a low risk of child-sex recidivism would be, in the particular case of this applicant, contradicted substantially by a close examination of his individual circumstances. That would be a case where the statistical information would cease to have a particularly useful role to play in the evaluation of risk. The example does serve to show, in my opinion, that it is in the first instance vital to examine an individual’s precise circumstances. It seems to me that I ought, in this case, examine closely the circumstances that pertain to the applicant.
Moreover, Professor Coyle’s conclusion that the chances of recidivism in this case, statistically measured, approach zero, does seem to me to lead to an odd result from a legal perspective. I accept that it may be true, statistically, that the chances that a

sex-offender will reoffend approach zero after, say, two decades of crime-free living in the community.
But if one asked the question of whether a person who has never committed such an offence might commit an offence for the first time in, say, his sixties (which is the applicant’s present age-bracket), the answer may also be close to zero statistically. Of course, there must be examples where an individual offends for the first time in his sixties, even in this highly deviant way. So the statistical probability of such a person offending cannot be absolutely zero, but it may well be said to be minimal or nearly zero.
This intends to imply that, statistically, the chances of the applicant reoffending are more or less those of a person of similar age who has never offended in this way in the past. I accept that may be true statistically; but if the Tribunal were to decide that the risk of this applicant reoffending is the same as the risk of a person who has never offended in this way, the Tribunal would be failing, in my opinion, to give any meaningful weight to a significant fact; namely, that this applicant has offended in this way in the past.
This gives rise to a highly pertinent question: Is the fact that the applicant has offended in the past irrelevant to the estimation of his future risk when this Tribunal assesses the level of risk? I do not think it is irrelevant. The applicant crossed ‘a threshold’ 20 years ago, if I may use that expression. The crime of paedophilic incest is entirely deviant, and it need hardly be said that it stands far outside the boundaries of any accepted sexual behaviour. It is universally judged as perverse and highly abusive of the victim, who is, by definition, incapable of consent. It is so abhorred in our society, in fact, that any tendencies a person may experience in that direction would be resisted, one would think, at all costs, at least where the person has received anything like a normal upbringing that reinforced basic societal norms.
On the evidence before me in fact, the applicant experienced a degree of moral revulsion at his perverse feelings; but he was unable to control his tendencies 20 years ago. He has, therefore, crossed a threshold very few men cross. That is, he had at that point in time a serious disorder, as Dr Walsh described it in his report, and he acted upon his impulses. That remains a fact.
That the applicant has crossed the threshold once means in my opinion that he will need to remain vigilant at all future points of his life (or at least until he experiences no sexual desire at all in old age). He must studiously desist from any associations that he perceives might re-excite his deviant sexual interest.
That is, the applicant’s risk of recidivism is not, in my opinion, properly equated with the risk of a 60-year old offending for the very first time even though, across very large samples, there may be a statistically irrelevant difference between the two cohorts measured as a whole. In short, the applicant’s risk of recidivism should not be assessed as being close to zero because of statistical modelling as this would be pay insufficient attention to his past offending. I accept that this may be a case where the law looks at matters differently from statisticians.
I am closer, therefore, to Dr Walsh’s view that the risk of recidivism should properly be viewed as a lifelong challenge for any individual who has committed paedophilic incest. In addition to his crime-free life for 20 years and the other factors to which Dr Walsh and the Court refer, there is another important factor that would further lower the assessment of risk for him as an individual. The applicant does not have any minor children at the present time. His family is aware of his convictions and have been for many years. He will, no doubt, wish to be very careful in respect of his relationship with grandchildren, and, in particular, in respect of any occasions of sole supervision of them. No doubt the applicant’s children will be mindful of his risk to their children, as small as it might be in their mind, and the applicant will be aware of their vigilance. In any event, he will not have unsupervised contact with children whose parents are unaware of his past.
Furthermore, I accept the applicant’s evidence that he does not propose to start a new family with his wife, O. He is at a time of life when the prospect of raising a child may seem less attractive or important than it did when he was younger. Of course, he may change his mind. But at the present time, there is no evidence before me of a child being in contemplation, let alone one that is presently alive. So whilst I must in a general sense take into account a risk to a child yet to be born, and only to be born if the applicant changes his mind about starting a new family, the present circumstances of the applicant do not invite a conclusion that he will likely have unsupervised contact with children within a family context in the future.
I have already referred to the fact that Dr Walsh’s view is that the applicant did not pose a risk to the community at large. I note further that he has explained the situation to his past and present church pastors. They are aware of his past.
All in all, therefore, I rate the applicant’s risk of recidivism as very low, but not de minimis or close to zero.
I bear in mind that this is a matter to which I am to have regard “cumulatively” with the nature of harm the applicant would inflict on community members if he reoffended, and I do so.
Paragraph 8.2 requires me to have regard to family violence committed by the applicant. I am aware that the Direction now places considerable emphasis on family violence (which includes sexual assaults against children) as a separate consideration to be evaluated unlike its predecessor Direction 79. I take into account the Government’s very serious concerns about this matter as expressed in subparagraph (1). There has been frequency in the offending conduct over the course of 13 months, albeit 20 years ago. I have had regard to the possible cumulative effect of the repeated acts of family violence as I have in respect of the cumulative effect of repeated offending under paragraph 8.1.1(1)(e).
I do think that substantial rehabilitation has been demonstrated in this case because the applicant has lived offence-free for 20 years. I conclude that this applicant accepts responsibility for his family violence which was demonstrated in his guilty pleas in circumstances where the offending might otherwise have gone unreported. Unlike the delegate, I believe the applicant is ashamed of his behaviour and does understand how reprehensible his behaviour was towards his daughter. The Court imposed a number of conditions on the applicant with which he was required to comply, and, as I have said, there is no evidence before me to suggest that he has failed to comply with them. I note that the applicant sought assistance from Dr Walsh voluntarily and undertook counselling at the time.

In my opinion, the applicant does not lack rehabilitation as of my decision today. He has received a letter of support from his pastor and so he has disclosed his circumstances, even though they are many years old now, to a church community where there are many children. I take those matters into account.
So far as paragraph 8.3 of the Direction is concerned, I do not believe there are any best interests of minor children in Australia to be taken into account.
By paragraph 8.4, I must take into account the expectations of the Australian community. I acknowledge what appears in paragraph 8.4(1) without setting it out. I note that a visa cancellation may be appropriate simply because of the nature of the character concerns or offences that have been committed. Acts of family violence are specifically mentioned in this connection as are serious crimes committed against children. The expectations mentioned in paragraph 8.4 apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. I acknowledge specifically that guidance. I also acknowledge that subparagraph (4) indicates plainly that I am not to assess the community expectations for myself in a particular case. I follow that guidance.
I note that no primary considerations favour the applicant.
I must have regard to other considerations under paragraph 9. There is a non-exhaustive list of four such considerations. No international non-refoulement obligations arise for consideration.
As for the extent of the impediments on removal, I note that the applicant is in a retirement phase of his life. He is of British ancestry and, of course, language is no issue. He would be able to resettle in the United Kingdom, but there would be an initial period of some dislocation for him. He would, however, settle in relatively quickly.
I have no information concerning the impact of my decision on S and so I leave it to one side.
I turn now to consider links to the community. The applicant’s two adult sons wish to maintain contact with him in Australia, as do his extended family members. I accept the support letters that are in evidence. I believe also that the applicant himself has an interest in remaining in Australia to which I should attach quite considerable weight. The applicant has lived in Australia for 50 of his 60 years. Australia is his home. All connections he has in the community with family, friends, and church have arisen in Australia. Deportation from Australia after such a long time will have a severely dislocating effect upon the applicant. The applicant’s ties to the Australian community are significant. He has made a significant contribution to Australia and built up a company which has operated successfully here and employed a number of people, even if he is now in a ‘wind-down’ phase. Apart from the earlier offending to which I have referred, the applicant has lived a crime-free life (except, of course, for the very serious offending against his daughter). That offending took place many years after the applicant had entered Australia.
This consideration counts substantially in the applicant’s favour in my opinion.
WEIGHING THE CONSIDERATIONS
I come now to weighing the various considerations. Generally speaking, I should accord more weight to primary considerations,[34] but I must give careful consideration and appropriate weight to the facts of the individual case.[35] It is also true that a consideration or considerations arising under paragraph 9 may outweigh primary considerations in an appropriate case: see FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
[34] Paragraph 7(2) of the Direction.
[35] Paragraph 7(1) of the Direction.
In this case, I must weigh, self-evidently, the very serious concerns expressed in the Direction concerning sexual violence against children, which constitutes in this case a form of family violence as well. The Direction requires me to take the applicant’s offending very seriously under paragraph 8.1.1. In my opinion, I ought also to have regard to my risk assessment of recidivism as very low, a conclusion that is supported by his two decades of offence-free living in the community. I feel confident in my assessment that the applicant’s risk of recidivism is very low both within his own family circle and within the Australian community generally. The applicant is aware now of how dangerous his offending was. I mean ‘dangerous’ in the sense of having the potential to ruin the delicate psychological wellbeing of a child, his own child in fact. The applicant was suffering, however, from a disorder at the time. The reasons for his behaviour are discussed in Dr Walsh’s report, and the behaviour was appreciated to be reprehensible at the time of its commission. As I say, it was aberrant behaviour that answered the description of a disorder in Dr Walsh’s opinion. That conclusion does not, of course, lessen the gravity of the offending, but it does provide a context for its assessment two decades after the last offence occurred.
The Direction is clearly concerned with protecting the Australian community from harm and ensuring that the community is not exposed to risk. As I have said, I am satisfied that the community’s risk exposure is very low. I am concerned that the effect of a decision by me to remove the applicant will have a severely dislocating effect upon him and an effect upon his extended family here in Australia in circumstances where, although the offending is of the most serious kind, I am satisfied that the risk of recidivism is very low.
FINAL CONCLUSION
I have weighed all the considerations carefully. On balance, they favour, in my opinion, a decision that the discretion in section 501(2) of the Act not be exercised. Having reached that conclusion, I believe the appropriate decision is to set aside the decision under review and to substitute a decision that the applicant’s visa not be revoked under section 501(2) of the Act.

I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member N.A. Manetta
.............[SGD]............
Associate
Dated: 7 March 2023

Date(s) of hearing: 19 and 20 January 2023 and 6 February 2023

Counsel for the Applicant: Mr Angel Alexsov

Counsel for the Respondent: Mr Ben McGlade

Date(s) of hearing:	19 and 20 January 2023 and 6 February 2023
Counsel for the Applicant:	Mr Angel Alexsov
Counsel for the Respondent:	Mr Ben McGlade