FBLQ and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)

FBLQ and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 2427 (8 August 2023)
Division:GENERAL DIVISION
File Number: 2023/3449
Re:FBLQ
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic
Date of decision: 8 August 2023
Place:Melbourne

The Tribunal affirms the reviewable decision.
.........................[sgd]...............................................
Senior Member A. Nikolic, AM CSC
CATCHWORDS
MIGRATION – mandatory cancellation of Class BC Subclass 100 Partner (Migrant) Visa – citizen of Philippines – violent sexual offending – failure to pass good character test – Ministerial Direction No. 99 applied – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Sex Offenders Registration Act 2004 (Vic)
CASES
AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 175
Beezley v Repatriation Commission (2015) 150 ALD 11
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294
Bushell v Repatriation Commission (1992) 175 CLR 408
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
D1 v P1 [2012] NSWCA 314
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs [2020] HCA 56
FYBR v Minister for Home Affairs [2019] FCAFC 185
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs (2022) 96 ALJR 737
Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Pseudonym) [2022] FCAFC 160
O’Keefe v Calwell (1949) 77 CLR 261
Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497
Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219
R v Verdins [2007] VSCA 102
Roberts-Smith v Fairfax Media Publications Pty Ltd [2019] FCA 36
Salah (formerly HGMZ) v Secretary, Department of Social Services [2022] FCAFC 186
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
SECONDARY MATERIALS
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Kevin S. Douglas, Stephen D. Hart, Christopher D. Webster and Henrik Belfrage, ‘Rating Sheet for Version 3 of the HCR-20’ Mental Health, Law and Policy Institute, Simon Fraser University (PDF Document, 16 October 2013)
Sentencing Advisory Council (Vic), ‘Imprisonment’, (Web Page, 28 April 2022) < FOR DECISION
Senior Member A. Nikolic
8 August 2023
INTRODUCTION

The Applicant has asked the Tribunal to review the Respondent’s decision not to revoke the mandatory cancellation of his Class BC Subclass 100 Partner (Migrant) Visa (“the visa”). The hearing was held on 3 and 4 August 2023, in person, at the Tribunal’s Melbourne Registry. The Applicant’s wife acted as his advocate.[1] The Respondent was represented by Ms Tegan Weir, a solicitor from HWL Ebsworth Lawyers.
[1] Exhibit R1, 75-77.
For the following reasons, the Tribunal affirms the reviewable decision.
Under s 500(6L) of the Migration Act1958 (Cth) (“The Act”), the Tribunal must decide this application within 84 days of the Applicant being properly notified of the non-revocation decision (“84-Day Rule”).[2] This falls on 8 August 2023, which is two working days after the hearing ended on 4 August 2023. Failure to do so results in the reviewable decision being affirmed by operation of law.
[2] Pursuant to s 501G(1) of the Act.

LEGISLATIVE FRAMEWORK

Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a visa granted to a non-citizen if the Minister is satisfied the person does not pass the character test. This includes if the non-citizen has been sentenced to a term of imprisonment of 12 months or more. The Minister is required under s 501CA(3) of the Act to provide notice of the cancellation decision as soon as practicable, and invite the affected person to respond. Under s 496 of the Act, the Minister may delegate these powers.
Section 501CA(4) of the Act confers a discretionary power upon the Minister or their delegate to revoke the original decision, if the non-citizen makes representations in accordance with invitation extended to them, and if the Minister is satisfied the person either passes the character test, or there is another reason why the original decision should be revoked. Non-revocation decisions by ministerial delegates are reviewable by the Tribunal.[3]
[3] Section 500(1)(ba) of the Act, read in conjunction with s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

BACKGROUND

The Applicant is a citizen of the Philippines.[4] He lived there until the age of 25 before arriving in Australia on a Sports Visa about 15 years ago. He has since travelled outside of Australia on six occasions.[5] The Applicant married an Australian citizen in 2010 and they continued living here after he retired from professional sport in 2014. The Applicant has not worked in Australia other than as a professional sportsman.
[4] Exhibit R1, 79.
[5] Ibid 151-152.
The Applicant’s criminal history in Australia relates to an incident in 2016 when he violently assaulted and tried to rape a woman in his apartment building. He was subsequently arrested, held on remand and, in 2017, convicted of attempted rape, for which he received a sentence of six years’ imprisonment. He was also convicted of intentionally causing injury, for which he received a sentence of four years’ imprisonment.[6] Two years of the sentence for the latter offence was cumulative upon the attempted rape offence, which resulted in a total effective sentence of eight years' imprisonment.[7]
[6] Ibid 41-60.
[7] Ibid 57 [87]; 58 [104].
On 22 May 2020, a delegate of the Minister cancelled the Applicant’s visa (“cancellation decision”) under s 501(3A) of the Act.[8] The Applicant subsequently made representations to have this revoked.[9]
[8] Ibid 61-67.
[9] Ibid 69-150; Exhibit R2, 521.
On 16 May 2023, a delegate of the Minister decided not to revoke the cancellation decision (“non-revocation decision”).[10]
[10] Exhibit R1, 11-13.
On 19 May 2023, the Applicant applied to the Tribunal for review of the non-revocation decision.

CONFIDENTIALITY REQUEST

At the commencement of the hearing, the Respondent asked that a confidentiality order be applied because the Applicant had made non refoulement claims, which was consented to by the Applicant. When asked if the Respondent accepted the non-refoulement claims made, this was not conceded. When asked what authority was relied upon for the proposition that the making of non-refoulement claims alone justified the imposition of a confidentiality order, the Respondent was unaware of an authority to this effect. There is no evidence the Applicant has previously applied for a Protection Visa or a Protection-related bringing visa or has previously held such a visa. The confidentiality provisions at s 501K of the Act are therefore not enlivened.
With certain statutory exceptions, the default position in the Tribunal is for public hearings, public availability of evidence, and publication of decisions.[11] This is adopted in the interests of transparency and public awareness. The material presented to the Tribunal must reasonably support a conclusion that a confidentiality order, or the prohibiting of publication is justified. ‘Mere belief that the order is necessary is insufficient’.[12] The Full Court of the Australian Federal Court has held in Salah:[13]
‘A person who wishes to litigate a proceeding before a court of law does so in light of, and subject to, the principle of open justice. Suppression or non-publication orders, including the use of pseudonyms, must be applied only in circumstances where such an order is necessary in the interests of justice (Dickason v Dickason (1913) 17 CLR 50 at 51 per Barton ACJ, with whom Isaacs, Gavan Duffy, Powers and Rich JJ agreed) or the person’s circumstances otherwise satisfy one or more of the grounds in s 37AG(1) of the Federal Court Act or a pseudonym is required by statute, such as s 91X of the Migration Act 1958 (Cth).’
[11] John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, 477 (McHugh JA).
[13] Salah (formerly HGMZ) v Secretary, Department of Social Services [2022] FCAFC 186, [8] (Rares, Katzmann and Cheeseman JJ), citing with approval Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Pseudonym) [2022] FCAFC 160 (Rares, Perry and Hespe JJ).

Consent between the parties, or the making of non-refoulement claims yet to be considered, are an insufficient basis to grant a s 35 confidentiality Order. Justice Besanko has reflected with approval upon the following construction in D1 v P1 [2012] NSWCA 314 about the Court’s approach to confidentiality orders where risk to an Applicant is advanced:[14]

[14] Roberts-Smith v Fairfax Media Publications Pty Ltd [2019] FCA 36, [16]-[17] (Besanko J).

‘…The issue is whether, to obtain an order, it is necessary to show that, absent an order being made, it would be probable that the person in question will suffer harm, or whether all the section requires is for the Court to be satisfied on the balance of probabilities that the order sought is necessary to protect the person’s safety. As Bathurst CJ (with whom McColl JA and McClellan CJ at CL agreed) noted in D1 v P1 [2012] NSWCA 314 (at [49]), the first construction may be put in this way:
… is it a precondition to the operation of the section that as a matter of probability the person in question would suffer harm if an order was not made?

The alternative construction may be put in this way (at [51]):
… On this construction proof of the probability of harm is not a precondition. The necessity for such an order will be informed by the nature, imminence and degree of the likelihood of harm occurring to the relevant person. If the prospective harm is very severe, it may be more readily concluded that the order is necessary even if the risk is a possibility as opposed to a probability.

In my opinion, the second construction is the correct one…’

The Tribunal heard submissions regarding the discretion available under s35 of the Administrative Appeals Tribunal Act 1975 (Cth), but noted that a confidentiality order was not applied at the Applicant’s criminal matter, which was conducted in open court and reasons published by the County Court.[15] The Tribunal concluded that the reasons advanced for a confidentiality order were insufficiently cogent to depart from the default position of a public hearing, public availability of evidence, and publication of decisions.[16]

[15] Exhibit R1, 41-60.

[16] >

As the hearing evolved, however, certain mental health issues came to the Tribunal’s attention. The Tribunal subsequently decided to apply an anonym to the Applicant and his wife, for reasons that are different to those advanced at the commencement of the hearing. He will be referred to in these reasons as (“FBLQ”). His wife and advocate will be referred to as (“Mrs AA”). The Tribunal has ordered that the Applicant’s name and any information tending to reveal his identity ‘must not be published or disclosed to any person’ other than the parties, their representatives, other persons directly involved with the preparation and conduct of a party’s case, and members or staff of the Tribunal, and any person performing services for the Tribunal.

ISSUE TO BE DETERMINED

Because of his convictions on 10 November 2017, the Applicant fails the character test. The issue to be determined under s 501CA(4)(b)(ii) of the Act, therefore, is whether the discretion to revoke the cancellation decision is enlivened by the Tribunal’s satisfaction that there is ‘another reason’ to do so.[17] The Full Court in Bettencourt[18] reflected with approval upon the approach taken in Viane,[19] about how this is determined. Their Honours summarised the following principles at [27]:
(1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
(2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
(3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
(4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
(5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
(6) If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.
[17] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[18] Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294.
[19] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
More recently, in Plaintiff M1/2021,[20] the plurality of the High Court stated how representations made under s 501CA(4) of the Act should be approached:
22. Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
23. It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.
24. Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations…the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
25. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
(Citations omitted).
[20] Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 (Plaintiff M1/2021), [22]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ).

DIRECTION 99

The Tribunal must address the question of ‘another reason’ for revocation in compliance with a ministerial direction made under s 499(1) of the Act known as ‘Ministerial Direction 99’ (“the Direction”).[21] This commenced on 3 March 2023. The Tribunal ‘stands in the shoes of the original decision-maker’ and must make ‘the correct or preferable decision’[22] based on the material currently before it.[23] As explained to Mrs AA during the hearing, when she referred to or relied upon aspects of decisions made by Ministerial delegates for the mandatory cancellation and non-revocation decisions, the Tribunal considers the application anew, rather than the case before earlier decision-makers.
[21] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 497, [4] (Rares, O’Callaghan and Jackson JJ); Nathanson v Minister for Home Affairs (2022) 96 ALJR 737, 2 [4] (Nathanson).
[22] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (Bowen CJ and Deane J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [96]-[98] (Hayne and Heydon JJ); Nathanson.
[23] AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 175, [25] (Wigney, Abraham and Rofe JJ); Nathanson; Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Beezley v Repatriation Commission (2015) 150 ALD 11, [68]Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40], 315 [100], 324-325 [134]; Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J);.
The following principles at cl 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(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)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision-maker must have regard to clauses 8 and 9, where relevant to the decision. Clause 8 of the Direction identifies the following primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The strength, nature, and duration of ties to Australia;
(d)The best interests of minor children in Australia;
(e)Expectations of the Australian community.
Clause 9 of the Direction sets out a non-exhaustive list of other considerations:
(a)Legal consequences of the decision;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Impact on Australian business interests.
Clause 7(1) provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources’.
Clause 7(2) states that ‘Primary considerations should generally be given greater weight than the other considerations’. This does not preclude the Tribunal, however, from giving an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[24]
[24] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations’. The weighing process, however, is left to individual decision-makers.[25]

EVIDENCE
[25] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, [57].

Documentary evidence

The following materials were taken into evidence at the hearing:
(a)G-Documents numbering 220 pages;[26]
(b)Supplementary G-documents numbering 550 pages;[27]
(c)Ten-page handwritten statement narrated by the Applicant but written by Mrs AA;[28]
(d)Four-page statement of Mrs AA dated 12 July 2023;[29] and
(e)Four-page letter of clinical psychologist Ms Anastasia Novella dated 25 June 2023.[30]
[26] Exhibit R1.
[27] Exhibit R2.
[28] Exhibit A1.
[29] Exhibit A2.
[30] Exhibit A3.

Applicant’s evidence

The Applicant speaks very little English and it is submitted he is illiterate. The Tribunal has considered documentary evidence produced on his behalf by Mrs AA, such as a Personal Circumstances Form (“PCF”),[31] and correspondence with Commonwealth and Victorian Departments.[32] The Applicant adopted a ten-page handwritten statement, which he narrated to Mrs AA, as his evidence in this proceeding. His oral evidence took up the entire first hearing day and some of the second. He gave his evidence with the assistance of an interpreter in his preferred Filipino dialect. Prior to the commencement of his evidence the Tribunal initiated an exchange between him and the interpreter to ensure there were no dialect or other issues that impeded a clear understanding.
[31] Exhibit R1 78-98.
[32] Ibid 104-112; 147-150; 191-195.
Prior to the hearing, Mrs AA made documentary submissions on the Applicant’s behalf about why the non-revocation decision is wrong.[33] The Tribunal has considered this but a summary is not provided because it may tend to identify the Applicant and Mrs AA.
[33] Ibid 9.
At the commencement of his oral evidence the Applicant said he wanted to stay in Australia because life in the Philippines is ‘very hard’. If returned, he felt this would ‘have an impact’ on his relationship with Mrs AA, without whose support he would find it ‘hard to live in the Philippines’. A summary of the Applicant’s evidence now follows.

Life in the Philippines

The Applicant said his mother did not take good care of him when he was growing up and these memories cause him sadness. He lived in several different places within his home province but could not recall when he moved from place to place. He also could not recall if all the people he stayed with were relatives but remembered living for a time with a maternal aunt and an older half-sister. The Applicant said he attended school at three different locations until the age of seven, before leaving because of poverty and abandonment by his mother. He recalled attending an ‘Elementary and High School’ school but said in the absence of adequate supervision his attendance was ‘very poor’. The Applicant said he spent his time ‘going around being naughty’. When asked to elaborate, he referred to running away from home and recalled spending more than five years living with an elder half-sister. He also recalled not complying with curfews to be home by a particular time, instead staying out overnight or longer.
When asked what grade he completed at school, the Applicant said he could not remember. He claimed to only be able to read his name but said he has ‘no difficulties’ speaking his preferred Filipino dialect. Prison staff have recorded the Applicant’s claim that he part-completed secondary school in the Philippines, with risk assessments premised on the basis that he ‘completed at least Year 11 in Secondary Education’.[34] On current evidence, however, there is an insufficient basis for a reliable finding about the extent of the Applicant’s educational attainment. The Applicant has some English abilities and his interactions with custodial staff are in English. Any vocational and rehabilitative courses he has completed are in English. The Tribunal accepts, however, he is reliant on others, particularly Mrs AA to help him understand and complete forms in English.
[34] Exhibit R2, 443; 523.
When asked by Ms Weir about family members in the Philippines, the Applicant said he has no contact with his father but does with his mother. She lives with her brother and her brother’s son, the Applicant’s cousin, who he said he is very close to, but had not spoken to in person since departing the Philippines in 2007. The Applicant also has an aunt in the Philippines who he lived with for a time when growing up. The Applicant’s older sister now lives in Singapore and has two children of her own. The Applicant said he has another sister he never met, and a male sibling who died when he was quite young. When asked about other family in the Philippines, the Applicant referred to a family he lived with who introduced him to the sport that he subsequently excelled at. He recalled undertaking some work in the Philippines, such as ‘washing cars’, but he participated in his chosen sport at an amateur level before turning professional in 2000. That is the only work he has since undertaken.
The Applicant said he ‘trained every day’ and recalled being paid a small wage and all his food and expenses being covered by the person who encouraged his sporting development. The Applicant shared half his winnings with this person and spent the rest as he wished. The Applicant recalled pursuing his sporting career in the Philippines, Australia, Thailand, Fiji, and other places. He has consistently passed any tests or medical requirements relating to his chosen sport.
The Applicant said he ended ties with his sponsor in the Philippines in about 2007 because this person made him sign a contract despite knowing he was illiterate. He last spoke to this person in 2007 and said his mother visited the sponsor’s sporting facility prior to the Applicant departing for Australia. She was angry with the sponsor and had an argument with him for making the Applicant sign a contract he could not read. The Applicant said he has not returned to the Philippines since arriving in Australia but has travelled internationally on holidays with Mrs AA and others to places like Paris and London.

Life in Australia

The Applicant said he agreed to come to Australia in 2008 when he was 25 years of age, after being sponsored under a Sports Visa. His Australia sponsor was involved in the Applicant’s chosen sport and is also of Filipino origin. When asked by Ms Weir if he was paid, the Applicant said he was, but it was ‘very little’ and he felt poorly treated. He had to pay for his own food and train even when it was very cold, or he felt sick. For a time, the Applicant said he sent money to an ex-girlfriend in the Philippines, but after discovering she was unfaithful, ceased doing so.
In 2010 the Applicant said he broke ties with his Australian visa sponsor after marrying and moving in with Mrs AA. Other sportsmen sponsored by this person complained to authorities about their treatment by the sponsor and an investigation was conducted. The Applicant said he did not participate in these complaints and is unaware of the outcome of the investigation. The Applicant said he never reported any conduct of concern by his visa sponsor to any authority due to a fear of the sponsor and declined the sponsor’s request to provide a supportive reference.
When asked why he feared the sponsor, the Applicant stated: ‘he threatened all of us’. When asked to clarify when these threats were made, the Applicant responded: ‘I can’t remember’. When asked if any threats were made to him, Mrs AA, or his other family members in the Philippines since he ceased the relationship with his sponsor in 2010, the Applicant responded: ‘No’. During re-examination, the Applicant was asked by Mrs AA if he recalled the sponsor making threats about consequences if the Applicant would not be a supportive witness on their behalf. The Applicant said ‘threatening sounds’ were made intending to scare him and Mrs AA. When asked if these 2010 threats were the only ones made or there were others, the Applicant responded: ‘Just that time’.
When asked by Mrs AA if he was aware of the Red Cross intervening to relocate families of some sportsmen who decided to complain about the sponsor, the Applicant responded: ‘Yes’. This had not previously been raised in his evidence and the Tribunal asked him to elaborate what he was aware of. The Applicant said this information came ‘word of mouth’ from other sportsmen who were also sponsored under a Sports Visa. There is no statement from any of these persons in this proceeding, or evidence from the Red Cross, to corroborate these purported claims. When asked if he remains friends with the sportsmen who complained, the Applicant responded: ‘All I know is one is in Sydney’. When asked when he last spoke to them, the Applicant said he could not specifically recall, but thought it may have been in 2010 or 2011. During re-examination he agreed with Mrs AA’s question that one of the sportsmen had visited their apartment in Melbourne, but he could not recall when and thought it may have been twice.
The Applicant met Mrs AA in 2008 through her association with the Applicant’s Sports Visa sponsor and his family. They subsequently formed a relationship, married in 2010, and moved in together. After leaving his Australian sponsor, the Applicant continued his professional sporting career until retiring in 2014. When asked how much income he received form his sporting endeavours, the Applicant could not recall. He said any income was given to Mrs AA. He said Mrs AA regularly put money into his prison account. She also provides monthly financial remittances to his mother in the Philippines to assist with expenses like medications.

Drug-taking history

The Applicant said he first started taking methamphetamine (“ice”) in 2008 in the context of assisting his sports performance. After he left his visa sponsor in 2010, he claimed to have ceased using ice, but later resumed doing so. He initially claimed he did so in the context of a competitive basketball league on weekends, but later confirmed he also used the drug recreationally at parties and in the home when Mrs AA was not there. He recalled taking ice ‘almost every Saturday and Sunday’. When asked by Ms Weir why he recommenced taking ice, the Applicant said taking ice gave him ‘energy to play basketball’.
When asked why he hid his ice use from Mrs AA, the Applicant said there ‘would be a really huge problem’ if she found out and feared it may end their relationship. When asked how he paid for the ice, the Applicant claimed ‘it was all free’ and paid for ‘by my teammates because they knew I played [basketball] well…so I won’t get tired while playing games’. When asked by Ms Weir to elaborate, the Applicant claimed it was only him who was given ice because a player on an ‘opposing team was given it for the same reason’. When asked if he sought the ice himself, the Applicant responded: ‘sometimes I ask and sometimes they offered it to me’. The Applicant later changed his evidence to say that the only person on his team who knew he was taking ice was the teammate who provided it to him, and his other teammates did not know about this. The Applicant claimed he only took ice for around 12 months before his 2016 offending.
The Applicant initially denied taking Mrs AA’s sleeping tablet medication (Diazepam) without her permission and claimed the tablet he took on the morning of his offending was purchased ‘over the counter’ while living in Sydney. Under re-examination from Mrs AA, however, he agreed that he took a tablet from her medicine cabinet either on the Sunday night or early Monday morning to help him sleep after using ice that weekend. The Applicant said he had used Diazepam before. When put directly to the Applicant that his evidence to the Tribunal the previous day about the source of the Diazepam he took was untrue, he claimed to have been ’really very confused’. When pressed that he expressly denied taking Mrs AA’s medication the previous day, the Applicant responded: ‘My memory is so mixed up and very confused and muddled up’.

Offending

When asked to explain in his own words what occurred during his offending in 2016, the Applicant stated that he ‘got addicted to ice and wanted to try to rape someone’. He claimed that if he had not used ice, ‘it wouldn’t have happened’. He recalled hitting the victim and stated: ‘I hope the victim can forgive me’. The Applicant initially resisted recounting the circumstances of his offending, but the Tribunal directed him to respond. The Applicant was asked about two police interviews some six weeks apart and accepted that he lied to police at the first interview. He claimed to have told the complete truth at the second.
The Applicant agreed with the reference in a police transcript of the second interview that he was at home early in the morning on the day of his offending when the thought came into his mind to rape someone.[35] When asked if he knew why that thought came into his mind, the Applicant responded: ‘I don’t know what happened’. When asked what happened next, the Applicant said he ‘actually tried to rape someone’. He recalled visiting several locations in his apartment complex, before re-entering his building and waiting at the elevators for a suitable victim. He agreed that he took an item of clothing to disguise his face and did not pick other women who emerged from the lifts prior to attacking his victim. He could not recall why he selected the victim but recalled her coming out of a different elevator door ‘closer to where [he] was standing’. He could not recall anything about the physical characteristics of the victim causing him to select her over the others. When asked by Ms Weir to explain what he did upon selecting his victim, the Applicant responded: ‘I have no idea what I did’. When challenged that he explained his conduct in detail during a police interview and his claim was therefore implausible, the Applicant stated: ‘It happened a long time ago and I can’t remember any of it. My body was full of drugs, and I don’t even remember what I said [to police]’.
[35] Exhibit R2, 87.
Because of his claimed inability to recall his offending, Ms Weir took the Applicant through his second police interview. The Applicant agreed he dragged the victim into a stairwell exit and punched her in the face and elsewhere because she was struggling. When asked if he recalled what state the victim was in at the time, the Applicant said she ‘must have been dizzy’. He agreed that he pulled her pants down while she was ‘dizzy’. He agreed that he kissed the victim’s genitals but did not remove his clothing. He agreed that he unzipped his pants and tried to penetrate the victim. He also agreed that he ejaculated outside of the victim’s body and subsequently fled the scene through the stairwell. He also agreed that at some point during his assault someone knocked on the stairwell floor, but he ‘continued’ and subsequently ‘ran off’. The Applicant also agreed he changed some of his clothing, returned to his apartment, acted in way intended to remove evidence, took his pet outside briefly, attended a supermarket, and then called Mrs AA from another location. He agreed that he lied to Mrs AA about the victim purportedly offering him sex. He was subsequently arrested at the location he called Mrs AA from. He agreed that he lied to police during the first interview by telling them the same false story he told Mrs AA.
The Applicant could not recall telling police that when using ice, he feels ‘fuzzy’ and does whatever comes into his mind, but accepted he said this if it was in the transcript.[36] During re-examination Mrs AA asked the Applicant if he watched a lot of pornography prior to his offending. The Applicant agreed he did. He recalled that on the day of the offending he was still experiencing the effects of ice taken on the previous weekend and was feeling ‘fuzzy’ with things popping into his mind that he felt compelled to do. The Tribunal noted the Applicant told police at the second interview, when he claims to have told the complete truth, that he was not affected by ice on the morning of his offending. The interview transcript contains the following exchange:[37]
Detective Sergeant Q62: O.K. So midday on the Monday, some 24 hours or more after you took ice last, were you still feeling the effects of the drugs, ice?
Interpreter: No, I wasn’t – I wasn’t affected but…I had a headache and…I feel very irritable…my whole body…felt very hot’.
[36] Exhibit R2, 98[61].
[37] Ibid 99 [62]-[63].
When asked by Ms Weir why he told police he felt confused about whether he should or shouldn’t do something he knew was illegal or wrong,[38] the Applicant agreed that drugs affected his ability to think through ideas and thoughts coming into his mind. During re-examination by Mrs AA, the Applicant stated he does not really know the total effects of taking drugs like ice: ‘All I know is I lose my control when I take it and it makes my head all muddled up’. The Applicant said he was ‘scared’ after being arrested that Mrs AA was going to break up with him and he would lose her support.
[38] Ibid 108 [126]

Other conduct

The Applicant was asked about photographs on his mobile telephone, recovered by police after his arrest, of women at his apartment building. The Applicant could only recall one photograph he took of a ‘female lying in the sun’ near him at the swimming pool. He agreed that he did not have her permission to take the photograph. When asked by Ms Weir about other photographs and a video recovered from his telephone, the Applicant responded: ‘No, I don’t remember’. He could not remember a photograph taken on 7 July 2016 of a woman in a bikini showering at the pool, but accepted it was a photograph on his mobile telephone. When asked if anyone else could access his telephone, he responded ‘No’. He also accepted that despite having no memory of the photograph, he took it. When asked about another photograph taken on 14 July 2016 of two unidentified Asian females showering at the pool, the Applicant said all he could remember was the photograph he took of ‘a lady sitting near me’. He again accepted police found these images on his mobile telephone, but at this point in his evidence claimed: ‘my friends used my mobile phone sometimes’. When asked by Ms Weir if he was claiming his friends took these photographs, the Applicant responded: ‘I don’t know’. When asked about another photograph and a video taken on 19 July of an unidentified Asian woman in a bikini at the same pool, the Applicant responded: ‘No I don’t accept that’. When asked about a photograph of the Applicant in the pool area purporting to show him with his hands in his pants touching his genitals, the Applicant responded: ‘No’. When asked by Ms Weir who it would be, the Applicant responded: ‘I don’t know’.

When asked by Ms Weir if he has problems controlling himself, the Applicant responded: ‘I don’t really have problems with my wife, but with my thoughts I’m really confused’.

Conduct and rehabilitation while imprisoned

The Applicant said he focussed on sports and training while imprisoned. He continued to train in the sport he played professionally and played other sports like tennis and football. He did not relapse into drug use and was respectful to custodial staff and other prisoners. He also undertook activities like painting. When asked by Mrs AA if he had formed ‘strong bonds with prison officers’, the Applicant said he does not consider them friends, but respects them. This was because he is ‘wearing green and they are wearing blue’. The Applicant said he has undertaken some vocational training, participated in English language classes, worked as a baker and cleaner, and mentored other prisoners in improving certain sporting skills. He undertook a six-hour AOD and Ice Program in May 2023.[39] When asked by Ms Weir how he participated given his very basic understanding of English, the Applicant said it was at a ‘really, really slow pace’. When asked by Ms Weir what he took away from this course, the Applicant said he ‘learned a lot’, including about the ‘implications of taking drugs on family, friends and relationships’. He also learned about the ‘damage [drugs] can do to the brain’, how his ‘balance of judgement is impaired’, that it’s ‘not good to use drugs’, and that he ‘becomes very angry’ when he uses.
[39] Ibid 459.
When asked if he undertook any programs related to sexual offending, anger or violence, the Applicant said he had not done so because of his limited English but is ‘open to any new courses or programs [he] can take’. He stated that he does not foresee ever repeating his sexual offending, is remorseful for his actions, and acknowledged the effects his conduct had on the victim. When asked if he was booked in for any offence-specific program prior to his scheduled end-of-sentence release date in July 2024, the Applicant responded: ‘No’. When asked by Mrs AA if he had recently been told by Corrections Victoria he would not be doing the Better Lives Program, the Applicant responded: ‘Yes’. There is no corroborating evidence about this before the Tribunal.
The Applicant said if released he would receive support from Mrs AA to maintain a drug free life. When asked to elaborate on the nature of that support, the Applicant responded: ‘I will need my wife to support me and will stay away from bad influences and I know I need to do good things’. When asked by Ms Weir if he had investigated programs or counselling in the community if released, the Applicant responded: ‘I’ll have to start looking…at the moment I still haven’t really talked to anyone about it…It has been in my thoughts – I’ll really have to start looking for help’.
The Applicant said he was involved in an incident with an electrical appliance while at Port Phillip Prison, which he initially claimed was accidental but later attributed to attempted self-harm. He falsely claimed it was accidental at the time because he did not want Mrs AA to know. The Applicant said he made one further attempt at self-harm, but the ‘second time other inmates saved me’. He said no report was made to prison staff about this incident and he did not seek medical attention.

Plans if released in Australia

If released in Australia, the Applicant said he would focus on his relationship with Mrs AA, ‘avoid drugs when [he’s] out’, and start a business with Mrs AA’s support. He referred to the possibility of relocating with Mrs AA to Bali, or potentially working as a baker based on the skills he learned while imprisoned.[40] In terms of possible business pursuits, he wants to open a sporting facility based on his professional background because this is ‘the type of work [he has] known all [his] life’. He has discussed future rehabilitative options with Mrs AA during visits and telephone calls. When asked what they discussed, the Applicant said it was about improving their relationship, avoiding drugs and alcohol, and the need to look after Mrs AA because she is the only one working. When asked about expert assistance to help him avoid drugs and alcohol, the Applicant said Mrs AA ‘knows about these things’, and he will ask her to help him. The Applicant agreed he is fit, healthy, active, and doesn’t take any medication. He said if he focuses on a challenge he can achieve what he sets his mind to do.
[40] Ibid 475.

Plans and fears if returned to Philippines

When asked about plans if returned to the Philippines, aspects of the Applicant’s evidence were inconsistent with other documentary and oral evidence. He claimed, for example, that he did not know where his mother is, does not have any family in the Philippines, and if Mrs AA accompanied him, they would struggle because the ‘Philippines is full of poverty’. When challenged about inconsistencies with other evidence, the Applicant stated he had some contact with his mother, sister, and cousin. Mrs AA sent his mother monthly payments and had some communication with his family members. When asked by Ms Weir if there were family members in the Philippines he could stay with until able to re-establish himself, the Applicant said he was very close to his cousin, who lives with his mother and mother’s brother. This cousin is ‘taking care’ of his mother and the Applicant said he trusts him. When asked by Mrs AA why he believed he may be able to stay at the same home as his mother, uncle and cousin if returned to the Philippines, the Applicant responded it was his ‘intuition’. He explained that he has always been ‘very close’ to this cousin and they ‘always lived together’ when young. The Applicant said his mother previously took care of her brother (his uncle), after he was shot. Because they had ‘always been there for them’ the Applicant thought they would be ‘there for us’.
When asked if Mrs AA would accompany him to the Philippines if he was repatriated, the Applicant said she would. He said it would be very hard for him to find work after an extended period of imprisonment and he was ‘very scared of going home’ because the opportunities were not comparable to those in Australia. The Applicant was asked if there was anything else he feared about returning to the Philippines, besides finding work, and re-establishing himself in an environment of lesser opportunity. He replied: ‘it’s a very hard life in the Philippines – that’s what really worries me. Without my wife I don’t know where I’ll be living’. The Applicant was challenged about the claim he could not survive in the Philippines without Mrs AA, given he was able to do so for the first 25 years of his life. He responded that he survived because he ‘had no choice but to fend for [him]self’. When asked why he could not do so again, he responded: ‘I don’t have a reason’ and reiterated previous claims about it being ‘a lot harder’ to find work and re-establish himself after a lengthy period of imprisonment. When asked if Mrs AA would continue supporting him financially if he returned to the Philippines, as she has done since his sporting career ended in 2014, the Applicant said she would.
When asked if he feared harm from anyone in the Philippines, the Applicant said he is ‘scared of the Government’. In response to Mrs AA’s somewhat leading question about whether he had any awareness of ‘unlawful killings undertaken in the Philippines by the Government and Police regarding persons committing criminality relating to drugs (sic)’, the Applicant said he did. When asked how he is aware of this, the Applicant said he watches the Filipino news every morning. When asked to elaborate about his fear of authorities, the Applicant explained he is ‘scared of the police’. When asked why, he said some police ‘may try to make money’ from him by threatening to tell the community about his offending and imprisonment unless he pays. He said this is especially so if they knew he came from Australia and perceived him as wealthy.
The Applicant said he continues to maintain a high level of physical fitness through daily gym participation, running, and playing tennis, basketball, and football. He said there is no impediment to him pursuing his objective of starting a business with Mrs AA’s support.

Evidence of Mrs AA

Mrs AA adopted her four-page statement dated 12 July 2023 as true and correct. She appeared in this matter both as the Applicant’s advocate and only witness. She experienced emotional difficulties on several occasions requiring adjournments. The Tribunal encouraged Mrs AA to maintain the longstanding therapeutic relationship with clinical psychologist, Ms Novella, and to seek support from the network of close personal friends that she says have stood by her since the Applicant’s incarceration.
Mrs AA stated she intends to always support the Applicant ‘emotionally and psychologically’ but will be ‘challenged’ to support him financially in the Philippines, while concurrently funding her own life in Australia. When asked if she will accompany the Applicant if he is returned, Mrs AA said she will, but her employment in Australia is not transferrable and she does not see how they can survive there. She said a departure for the Philippines would be accompanied by ‘significant fear, anxiety, and trepidation’, but she felt compelled to do so because the Applicant could not ‘fend for himself’. She considered accompanying him the ‘lesser of two evils’ and could not bear thinking of him living in the Philippines without her.
Ms Weir asked Mrs AA if she noticed any past changes in the Applicant’s behaviour indicative of illicit drug use. Mrs AA said she noticed his diet and sleep pattern changed. She also noticed persistent sweating on his hands and the soles of his feet, and a ‘very pungent chemical smell on his breath’. The Applicant has his own Facebook account and Mrs AA said she also noticed his posts on social media ‘were quite erratic’, which attracted concerns from family and friends. The Applicant had described what she understood to be panic attacks to her, such as his heart racing and an inability to breathe properly or swallow. Mrs AA recalled these changes after they moved to Melbourne in 2014. She thought that because of the Applicant’s extreme fitness, these changes may have manifested more slowly in him than in someone who was less physically fit. Although Mrs AA put her concerns about drug use to the Applicant several times, he consistently denied this. She believes that she ‘went into denial’ because of other family experiences earlier in her life. Mrs AA said she was able to rationalise her suspicions about the Applicant’s drug use as catastrophising, including because of the Applicant’s claims that he couldn’t understand why people took drugs. She said there was nothing in the Applicant’s conduct that ‘stopped [her] in [her] tracks’ and she attributed his conduct to a ‘bored man with lots of time, disposable income, and no real responsibilities, who was a bit lost really’.
Mrs AA said that since their marriage in 2010 ‘until quite close’ to the Applicant’s offending, she was unaware of his regular use of pornography. She said that was because of his illiteracy and the fact that she was the one who always set up televisions, subscription channels, or attended to other requirements where reading or operation of technical equipment was involved. Mrs AA said she first became aware in early 2016 that the Applicant was routinely accessing pornography on his mobile telephone and his ‘sex drive markedly increased’. She consulted a close friend about this who advised her it was normal and not illegal. Mrs AA contextualised her observations as occurring during periods where she had a low libido because of struggles with psychological ill health.
Mrs AA said she never observed the Applicant exhibiting aggression, violence, or unsavoury behaviour to any other female. She considers him to be particularly caring and protective of women. She said he has frequent contact with women in custodial settings and has not ‘posed a significant threat of reoffending’. Mrs AA said his current prison placement is an indicator that he was not considered a risk of sexual reoffending.
Mrs AA attributes the Applicant’s offending to ice use. She said this drug makes those affected ‘capable of the most inhumane things’. The evening before his offending, after returning from a weekend sporting tournament with his Filipino friends, Mrs AA said the Applicant’s behaviour was so erratic she took a video of it and intended to show him later. She thought he was drunk rather than drug-affected and said he usually slept all day after a period of alcohol intoxication or when feeling hungover. On this occasion, however, he was awake at 07:00am. Mrs AA opined that the Applicant ‘has significant trauma, anxiety, and depression, which contributed to him using drugs.’ She did not agree with aspects of a consultant psychiatrist’s report commissioned for the Applicant’s criminal trial, because in her ‘lived experience’ she did not believe a psychologist or psychiatrist can come up with such a definitive assessment within such a short time.
Mrs AA considers that the Applicant requires ‘proper clinical assessment’. She has advocated for this with Corrections Victoria but said it is yet to be undertaken. She said the Applicant has been unable to do a sex offender’s course because of his literacy challenges. At one point in her evidence Mrs AA said the Applicant was not competent to stand trial but she and their chosen lawyer decided not to pursue this. If released, Mrs AA said she will prioritise the Applicant’s rehabilitative needs. She had recently reduced her work schedule to four days a week in preparation for being more available to assist him upon release with things like attendance at appointments. She stated that he ‘won’t be associating with old peers’ which the Tribunal inferred was a reference to the members of his Filipino basketball team with whom he went on regular weekend fishing and sporting excursions. Mrs AA said she would coordinate a ‘new network of trusted friends’ who are aware of the Applicant’s offending. She would also get him to join local community clubs to enable his participation in sports and other activities he has embraced while imprisoned. Mrs AA said while she is working four days each week, the Applicant will visit elderly friends of hers who do not work. Mrs AA said she will also seek out a psychologist or psychiatrist of Filipino descent but had not yet identified one because it was ‘challenging’. She and the Applicant may also set up a business venture, like a fitness enterprise or food truck, to align with his practical skills.
In concluding her evidence, Mrs AA said if the Applicant is released in Australia, she would be ‘an enabler of support by a team of medical professionals’ and close friends. This included the ‘unwavering support’ of a ‘core group’ of five ‘female friends’ in two states, and elderly friends that the Applicant could visit while she was at work. In closing submissions, however, she stated that she does not ‘have anyone else in [her] life as a support’ apart from the Applicant. The Tribunal inferred this reference to be in the context of the Applicant being her only immediate family member that she could draw support from.
Mrs AA stated that events to date had caused her to experience ‘significant mental health episodes’ and a non-revocation decision ‘for all intents and purposes ends [their] marriage’. This conflicted with her earlier evidence, and that of the Applicant, about her intention to accompany him to the Philippines if he is repatriated. She claimed to have been told by Australian Border Force that she could not accompany the Applicant on a repatriation flight to the Philippines, and her other enquiries had disclosed that if she arrived without him, only a three-month visa could be provided. If they travelled together, however, she could access a 12-month visa because of her status as the wife of a Filipino citizen. No evidence was provided to corroborate the claims about the Departmental repatriation process or visa implications in the Philippines. Mrs AA submitted the Applicant could not re-establish himself in the Philippines without her assistance and, while conceding he did survive there for the first 25 years of his life, said it was not a ‘happy, healthy, or meaningful existence’.
Mrs AA stated that in the event of an adverse decision, she would likely ‘lose all hope’ and either ‘take [her] own life’, or ‘travel to the Philippines knowing that [their] life wouldn’t go much further’. This elicited concerns relevant to the Tribunal’s subsequent decision to impose a confidentiality order. The Tribunal also encouraged Mrs AA at this point in her evidence to maintain her counselling with the multidisciplinary team referred to by Ms Novella and leverage her friendship network, irrespective of the hearing outcome.

Expert evidence

The Tribunal has considered a four-page letter from clinical psychologist Ms Anastasia Novella dated 25 June 2023.[41] Ms Novella has treated Mrs AA since the Applicant’s arrest and imprisonment in 2016. Ms Novella’s letter relates to Mrs AA only and she has not consulted with the Applicant. Ms Novella’s evidence is summarised as follows:
[41] Exhibit A3.
(a)Mrs AA has several mental health diagnoses and takes psychotropic medication. There have been past Emergency Department admissions, including prior to the Applicant’s incarceration and in the initial years of his incarceration. Mrs AA has managed her symptoms well to date by consulting with treaters, working fulltime, caring for her home and pet, walking, engaging with ‘good friends scattered’ across four states, speaking with the Applicant daily, and visiting him weekly. Ms Novella refers to the Applicant and Mrs AA as ‘each other’s sole support and family’.
(b)In the aftermath of the non-revocation decision and subsequent appeal before the Tribunal, Mrs AA’s mental health ‘deteriorated significantly’ with disruptive symptoms like catastrophising, poor sleep, nightmares, and ‘flashbacks’ to the Applicant’s arrest, criminal court case, and imprisonment. Ms Novella said Mrs AA ‘has not been actively suicidal for some years…[but]…is experiencing suicidal ideation without intent at this time and has communicated that if [the Applicant] is deported she cannot see how she will be able to cope or live without him’.
(c)When asked if she was concerned about Mrs AA’s mental health given the stressors she has been exposed to since 2016, Ms Novella said she was not concerned because Mrs AA ‘has a community she’s supported by’ and a network of supportive friends. Ms Novella confirmed she was part of Mrs AA’s treatment plans and would work with her general practitioner as ‘part of a team’.
(d)When asked what continuing treatment Mrs AA may need, Ms Novella replied that weekly treatment with her and Mrs AA’s general practitioner was recommended.
(e)When asked by Ms Weir if she had concerns for Mrs AA’s wellbeing or the possibility of a ‘potential psychiatric breakdown’ in the event of an adverse decision, Ms Novella said she would involve a psychiatrist in treatment if necessary. She also said active monitoring strategies for Mrs AA would be undertaken as much as possible.
(f)Ms Novella was asked several questions about aspects of her report that seemed to stray from her expert status as a clinical psychologist, and the extent to which she relied on Mrs AA’s self-reported claims. Ms Novella:
(i)Agreed that many of the claims in her letter may appear attributable to her expert views or personal knowledge, but were instead reliant on Mrs AA’s self-reported claims. She agreed that this distinction should have been more clearly made.
(ii)Contrary to several claims in her letter presented as fact, Ms Novella has no personal knowledge, outside of what she ‘Googled’, of the Applicant’s arrangements with a Sports Visa sponsor. She also has no personal knowledge about any investigations undertaken, or any threats purportedly made to the Applicant, his family, or Mrs AA. The Tribunal notes these purported threats occurred about six years before Ms Novella met Mrs AA.
(iii)Ms Novella has no personal knowledge of the Applicant’s past circumstances in the Philippines, or his family ties, or the extent to which those family ties may be able to support him if returned.
(iv)Ms Novella has no expert knowledge about Philippines’ Government law and order policies, nor basis for the claim in her letter that the Applicant would be ‘at risk’ of adverse policy consequences if returned.
(v)Ms Novella has no expert knowledge relevant to determining the extent, if any, of the Applicant’s ‘notoriety’ in the Philippines, or how he and Mrs AA may be ‘at risk of being identified’, or why ‘they would be at risk of their safety and their lives’ if living in the Philippines, or why they may live in ‘declared danger zones for westerners’ that could result in them ‘being kidnapped for ransom and or murdered’.

ASSESSMENT OF EVIDENCE

Notwithstanding some evidentiary references to memory issues,[42] aspects of the Applicant’s evidence were inconsistent, exaggerated, or did not ring true. Examples follows:
[42] Exhibit R1, 127.
(a)The references to the Applicant’s education in the Philippines are inconsistent and unable to be reconciled. The extent of his illiteracy and dependence on others when reading, writing, or using technical equipment is involved, is somewhat contradicted by his ability to maintain his own social networking profile. Moreover, he was able to take and store photos of bikini-clad women in the pool area of his apartment complex without their knowledge. He also become a voracious user of pornography on his mobile telephone without Mrs AA’s knowledge.
(b)The persuasiveness of the claim that the Applicant is totally reliant on Mrs AA is diminished by other evidence about frequent occasions when he acted independently. This includes attending parties and weekend activities without Mrs AA’s attendance, regular use of ice without Mrs AA’s knowledge – including in their home, and taking some of her prescribed sleeping medication without permission.
(c)The Applicant’s claims about ice use in the context of basketball performance and only one teammate providing it to him, are somewhat contradicted by other evidence. In one expert report, for example, it states the Applicant: ‘explained that after he moved with his wife to Melbourne…he had become involved with a Filipino community…He would enjoy playing basketball and with them had begun using methamphetamine and drinking alcohol’.[43] Another expert report states: ‘He had sought affiliation and sporting focus in basketball with a group of other Filipino men where the use of “ice” became routine each weekend’.[44] Another expert report states:
[43] Exhibit R2, 20 [23].
[44] Ibid 32.
‘At a “loose- end” he made contact with other Filipino males and began playing competition basketball…This began to dominate his activities without [Mrs AA] and it was in this context that he returned to abuse of methylamphetamine and alcohol. He acknowledges that he attempted to keep this from [Mrs AA] who would “not like it”.’[45]
(d)The contextual relevance of the Applicant’s dissatisfaction with or fears about the person who sponsored his sporting career in the Philippines, and another person who sponsored his professional sporting career in Australia, is diminished by the absence of any contact with these people for over a decade. None of the past concerns raised by the Applicant and Mrs AA were ever communicated to police or other authorities. It was variously explained this was because of fear of harm from those who made the threats, or that the Applicant just wanted to get on with his life after marrying Mrs AA in 2010. The former appears no longer relevant in circumstances where no further threats were made for more than a decade. Mrs AA’s evidence is that a sum of money was paid to the Australian visa sponsor to end the contractual arrangement with the Applicant, after which the Applicant lived with her. The Applicant was unable to recall the circumstances of this transaction: ‘I can’t remember it – my wife handled everything’. The Applicant agrees no harm has come to him, Mrs AA, or his family in the Philippines in more than a decade since his contractual relationships with these two persons ended. He also confirmed that his family members in the Philippines have not received any further contact about this.
(e)The Applicant’s claims about fearing harm from police or other authorities in the Philippines, based on his daily watching of Filipino news programs, came across as speculative and pitched at a high level of generality. When asked to elaborate on his fears about ‘the Government’, the Applicant could not provide an example.
(f)The Applicant’s claims about family members in the Philippines, his past contact with them, and the extent to which he may be able to rely on them for some practical or emotional support, were somewhat inconsistent. This includes because of his evidence that he and Mrs AA provided monthly financial remittances to his mother in the Philippines and the much greater knowledge he exhibited in oral evidence about his family’s circumstances. Only his mother and stepsister are included in his PCF, in which he states ‘unknown’ for cousins / uncles / aunts.[46] During oral evidence he referred to a cousin he is very close to and trusts, as well as an aunt and uncle he previously lived with.
(g)The claim that the Applicant is unable to re-establish himself in the Philippines is contradicted by the fact that he lived there for 25 years without (on his evidence) adequate supervision or guidance. This included work as a car washer, successfully commencing a professional sporting career, and competing internationally. He referred to financially assist a girlfriend after arriving in Australia and continued to do so for a time until he purportedly discovered her infidelity.
(h)The Applicant initially adopted an avoidant strategy regarding what occurred during his offending in 2016 by claiming he could not recall. When taken through the police interview transcript by Ms Weir, however, he recalled the details of his conduct.
(i)The Applicant’s current evidence is that he was affected by ice on the day of his offending and took a sleeping tablet stolen from Mrs AA’s medications. This conflicts with claims to police at the second interview, during which he claimed to have told the complete truth, that he ‘wasn’t affected but had a…headache…[and felt] very irritable’. There is no mention of sleeping tablets in this interview, just a reference to a vitamin and caffeine tablet.[47] There is no reference in the sentencing remarks that the talking of a sleeping tablet was contextually relevant to his offending. A 2017 report from a clinical and forensic psychologist contains a reference to the Applicant taking ‘10 mg of diazepam’ but claimed that although the Applicant admitted taking the tablets from Mrs AA’s prescription pack, he ‘didn’t know what they were’.[48] Prison authorities recorded the Applicant’s claim that he ‘took ice and sleeping tablets and alcohol on weekends prior to custody’.[49] The Applicant’s initial evidence at this hearing was that he could not remember ever taking his wife’s sleeping medication, but contradicted this a day later when he conceded that he did. This aspect of the Applicant’s evidence to the Tribunal was untruthful.
(j)The Applicant’s initial evidence about no one else accessing his mobile telephone, later evolved into a claim that his friends used it at times. This change in evidence occurred at a time when he was attempting to deny some of the photographs and a video of women in bikinis showering at his pool, which were recovered from his telephone by police, were taken by him. His changed evidence came across as self-serving and unpersuasive at best. It is noteworthy that when asked by police why he took photographs of unsuspecting women, the Applicant responded in a way that is inconsistent with his claims at the current hearing:[50]
‘…It’s just when I take the drugs, I cannot control…I just take photos…whatever my mind, my thoughts is telling me what to do, I just do it and I can’t control my mind when I take drugs’.
(k)The Applicant’s claim that his rehabilitation was somewhat advanced by completion of a six-hour AOD and ice course while imprisoned, is diminished by his very poor understanding of English and general claims at best about what he learned from this course. A custodial report in 2019 states: ‘HE DOESNT WANT TO PARTICIPATE IN ANYMORE DRUG AND ALCOHOL COURSES HERE AT KARREENGA’.[51] This conflicts somewhat with his current claims about being consistently open to rehabilitative opportunities but prevented from doing so by poor English.
[45] Ibid 45.
[46] Exhibit R1, 89.
[47] Exhibit R2, 96 [48] – 97 [61].
[48] Exhibit R1, 122.
[49] Exhibit R2, 439.
[50] Ibid 110-111 [138]-[139].
[51] Ibid 423.

PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct

Clause 8.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

The nature and seriousness of the conduct

Under cl 8.1.1 of the Direction, the following factors are to be considered in determining the nature and seriousness of the non-citizen’s criminal and other conduct to date:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)    violent and/or sexual crimes;
(ii)   crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)    causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)   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;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
(h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
There is no evidence the Applicant has committed any offences in the Philippines. His only offending in Australia occurred during a single incident in 2016. The sentencing remarks of the County Court of Victoria state that he was confronted by serious charges attracting a maximum penalty of 20 years' imprisonment for attempted rape and ten years' imprisonment for intentionally cause injury. Imprisonment is a sentence of last resort and the most severe sanction available.[52] But for his plea of guilty, the Court indicated a sentence of ten years imprisonment would have been imposed.[53] The Applicant’s sentences were substantially below the available maximums but are very significant for a first-time offender. They reflect the objective seriousness of his crimes. He was also subjected to obligations under the Sex Offenders Registration Act 2004 (Vic) for eight years.
[52] See e.g. Sentencing Advisory Council (Vic), ‘Imprisonment’, (Web Page, 28 April 2022) <
[53] Exhibit R1, 58.
The Applicant committed crimes that were both violent and sexual, which are viewed very seriously by the Australian community. The victim was vulnerable as a foreign visitor to Australia. She was alone and heading towards a lift in her building while talking on her mobile phone and preparing to meet friends for lunch. She had a reasonable expectation this was a safe and secure space. She was overpowered and dragged into a deserted stairwell screaming for help. To subdue her, the Applicant punched her multiple times in the face and elsewhere, then pushed her head into the concrete floor several times before sexually assaulting her. The Court noted the life-changing nature of these events.[54] The Tribunal adopts the Court’s finding that the victim was terrified and subjected to humiliation by the Applicant’s conduct.[55] This was only exacerbated by his victim-blaming at the first police interview, a narrative he maintained until a second interview about six weeks later.
[54] Ibid 49-50.
[55] Exhibit R1, 57 [92].
The Court held that the Applicant was fully aware what he was doing was wrong, assessed his moral culpability as high, and determined that the Verdins principles,[56] which denote when mental impairment is relevant to sentencing, were not enlivened. The Court accepted there was a link between ice use and the offending behaviour, which explained but in no way excused the offending. The Court accepted expert evidence that individual psychological treatment was needed to address the Applicant’s ‘sexual offending, substance use and difficulties managing…emotions’. The Applicant’s recidivism risk was contextualised by: the physical coercion involved in the offending; a history of substance misuse; problems in intimate relationships; difficulties coping with stress and managing emotional distress; and that any relapse into drug use would bring an increased risk of re-offending; as would any deterioration in the Applicant’s marital or close relationships.
[56] Referring to R v Verdins (2007) 16 VR 269, 276 [32].
The Applicant was noted to have displayed ‘real insight’ and ‘genuine remorse’ by entering a guilty plea at the earliest opportunity at committal mention, thereby sparing the victim from giving evidence and the costs of a contested trial. The Court noted, however that his admissions did not come until a second interview with police. The Applicant’s rehabilitation prospects were assessed as ‘reasonable’ but the court noted were ‘dependent upon [the Applicant] completing appropriate treatment programs to address [his] offending behaviour, in particular a Sex Offender's Treatment Program’. The Court held that ‘without a sex offender risk assessment’, it could not ‘reach an informed judgement concerning [the Applicant’s] risk of re-offending’, and he remained at risk if he used methamphetamines or if his relationship with Mrs AA broke down.
In addition to the Applicant’s criminal history, the Tribunal can consider ‘other conduct to date’.[57] This includes prison records and other evidence. Several reports refer to the Applicant as polite, respectful, and courteous in his interactions with custodial staff, and an ability to get on with other prisoners. No positive drug tests are recorded in any of the tendered documents.[58] A report dated 6 November 2016 states the Applicant was cleaning kitchen appliances and ‘accidently electrocuted himself on the electrical frying pan cord that was left plugged into the wall’ after he contacted some water.[59] It was claimed several years later that this was a suicide attempt. In a report dated 14 November 2017, there is reference to four incidents relating to ‘1 x injury 2 x good order of the prison and 1 property facility’.[60] This material was not advanced by the Respondent. There is no further explanation for it and the Tribunal places no weight on it.
[57] The Direction cl 8.1.1(1).
[58] Exhibit R2, 540-543.
[59] Ibid 535.
[60] Ibid 439.
In terms of other conduct:
(a)The Tribunal rejects the submission that the Applicant ‘fully cooperated with the police throughout the process’.[61] He gave a false account to police when first interviewed on 1 August 2016 and blamed the victim.[62] It was not until a second interview some six weeks later, that the Applicant disclosed the full extent of his offending. This does not constitute full cooperation.
(b)In terms of other objectionable behaviour, the police investigation into the Applicant’s conduct disclosed that his mobile telephone contained photographs and a video taken over a ‘very long time’ of bikini-clad women at the swimming pool in his apartment complex, who were showering and unaware they were being photographed.[63] The Crown Prosecutor alleged that ‘the female depicted in these photos and videos’ resembles the victim of his crimes. Reference is also made to another photograph of the Applicant within the pool area, with his hands inside his pants touching his genitals. The Court made no finding about these photographs and video, and the Tribunal has only had regard for the Applicant’s oral evidence about these matters.
(c)It is clear from the Applicant’s oral evidence that he has possessed and used illicit drugs like ice on multiple occasions since arriving in Australia, despite the absence of any drug-related offences in his criminal history.
[61] Exhibit R1, 97.
[62] Exhibit R2, 143 -145 [45]-[46].
[63] Ibid 110 [134] – 111 [140]; 146-147 [53]-[54].
The totality of the Applicant’s offending and other misconduct is extremely serious.

Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

Clause 8.1.2(1) of the Direction provides:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should 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. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Clause 8.1.2(2) of the Direction states that in assessing the risk non-citizens pose to the Australian community, decision-makers must consider, 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 on the risk of the noncitizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

The Tribunal can only describe the Applicant’s conduct as calculated, predatory, and extremely violent. As one psychologist has noted, the Applicant’s habits ‘were of a different nature’ to those Mrs AA was aware of,[110] which gives rise to concerns about the duplicitous nature of some aspects of his life. Mrs AA’s references to some of the Applicant’s conduct being the acts of ‘a naughty child’ considerably understate his conduct. It is of particular concern that the Applicant has previously hidden his drug-taking from Mrs AA, lied to her about taking her sleeping medication, and was initially untruthful about his offending, all due to concerns she would end their relationship and cease her support of him.
[110] Exhibit R1, 115.
When questioned by police about motive and whether anything was happening in his life to explain why he formed the intention to rape somebody, the following interaction occurred:[111]

Applicant: There's really no specific happenings in my life at that particular time. It's just that something just came in my mind and I - and I need to do it.
Police: Was it about the sex?
Applicant: No.
Police: Was it about the violence?
Applicant: It's just what I feel. It's just what I think, I want to do it so - yeah, it's just what I think. Whatever I think whatever comes on my mind I put in action.
[111] Exhibit R2, 107 [117]-[122].
The Tribunal rejects the claim that the Applicant is suffering from undiagnosed cognitive / intellectual impairment, or an acquired brain injury from his past sporting activities,[112] or was not legally competent during the Court’s dealing with his criminal matter. To the contrary. Expert evidence during sentencing concluded he had no ‘forensic or psychiatric history’.[113] There was ‘no suggestion of any intellectual disability at a formal level’.[114] A psychiatrist diagnosed the Applicant as ‘suffering substance misuse disorder, in remission’, and ice use, was considered to have a disinhibiting effect on his judgement and behaviour. That said, the Court found that any disinhibiting effect on the Applicant’s behaviour or judgement did not impact on his awareness about the wrongfulness of his conduct, nor enlivened Verdins principles. His moral culpability was high and in ‘no way’ excused his offending.
[112] Ibid 104.
[113] Ibid 50-52 [51]-[63].
[114] Ibid 119.
The Applicant’s violent, sexual offending falls into a category of crimes where even a low risk of repeat is unacceptable because of the grave harm that any reoccurrence may cause. The Tribunal’s concerns are only exacerbated by the Applicant’s non-completion of offence-specific rehabilitation, and inability of the protective factors he continues to rely upon to prevent his past violent and sexual conduct. Any rehabilitative progress he has made, is in a controlled and supervised custodial setting. Although illicit substances are available in such settings, this is a contextually different environment to that in which the Applicant’s drug use and offending occurred.
The Tribunal considers the Applicant represents a low to moderate risk of sexual recidivism. When the extremely serious nature of his past offending is coupled with a real risk of reoffending, and the potentially devastating consequences of any repeat, this primary consideration weighs very substantially against revocation.

Family violence committed by the non-citizen

The evidence does not disclose any family violence within the meaning of the Direction having been committed by the Applicant. This primary consideration carries neutral weight.

The strength, nature, and duration of ties to Australia

Clause 8.3 of the Direction provides:
(1) Decision-makers must consider any impact of the decision on the non-citizen's 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.
(2) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a. The length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant is married with no children. His formative years until the age of 25 were spent in the Philippines. Approximately seven years of the Applicant’s 15 years in Australia to date has been spent either imprisoned or in immigration detention.
The Applicant’s only immediate family in Australia is Mrs AA, who he married in 2010. They lived in the community together for approximately six years until the Applicant’s arrest, remand, and imprisonment in August 2016. Their relationship has persisted despite physical separation and Mrs AA has continued to provide the Applicant with financial and emotional support. This includes paying for his legal fees and advocating in support of his interests. She has also regularly visited him in prison and they speak often by telephone.
Mrs AA stated in closing submissions that she does not have the ‘means to live a meaningful existence in the Philippines’. She claims to be unable to afford maintaining her life in Australia while supporting the Applicant in the Philippines. The Tribunal accepts this hearing was very stressful for Mrs AA and she described her options in stark terms - ‘either taking my life here or travelling to the Philippines knowing that our life wouldn’t go much further’. The Tribunal encouraged her at this point to maintain her therapeutic relationship with Ms Novella and the close circle of supportive friends she has relied upon during the stressful years since the Applicant’s incarceration.
In terms of the effect on Mrs AA in the event of non-revocation, the Tribunal accepts that a negative decision is likely to have an adverse emotional effect, potentially causing her longstanding mental health conditions to considerably worsen and perhaps require acute intervention. The Tribunal accepts Ms Novella’s evidence that in these circumstances Mrs AA will likely require intensive assistance from Ms Novella, her general practitioner, possibly a psychiatrist, and her close circle of supportive friends. Even with these supports, the Tribunal accepts Mrs AA’s mental health challenges will be difficult to manage.[115]
[115] Ibid 82.
Mrs AA has submitted that the Applicant has the ‘unwavering support’ of a ‘core group’ of five ‘female friends’ in two states, ‘who are committed to providing ongoing support’. Reference is also made in the PCF to ‘character references that can be provided by others who dealt with [the Applicant] through his normal life and [sporting involvement]’.[116] There are no statements from these friends to corroborate the extent of any relationship with the Applicant or support that can be provided upon release. The Tribunal accepts the Applicant likely has some relationships in Australia, beyond Mrs AA, with people who may be emotionally affected by a non-revocation decision. In the absence of any evidence from these people, however, this is speculative at best.
[116] Ibid 91.
Given the Applicant has lived in Australia for 15 years, the absence of supporting evidence from relatives, friends, co-workers, or others is surprising. For example, there is no evidence from his past sporting teammates, or administrators he engaged with during his international sporting career, or the women Mrs AA referred to that the Applicant has maintained a close relationship with. This includes a 19-year-old woman who Mrs AA said the Applicant had an ‘incredibly close relationship’ with when she was growing up and travelled with her and Mrs AA on an overseas holiday in 2014 without the child’s parents. The totality of the evidence currently available to the Tribunal does not persuasively convey the Applicant’s absorption into Australian society, nor very broad ties within the meaning of the Direction.
It is submitted by Mrs AA that the Applicant ‘was never able to secure other full-time employment on account of his lack of education’.[117] There is limited evidence about the Applicant’s positive contributions while living in Australia, beyond participation in sporting and recreational activities. He has done no other work beyond his professional sporting career and there is no evidence about him paying taxes from the income he earned. When asked about this during the hearing he said Mrs AA controlled their finances. Reference is made in the Applicant’s PCF to his participation in the annual Salvation Army doorknock appeal while living in Sydney and volunteering at Filipino cultural events.[118] There is no corroboration of this, however, from the organisations referred to or other recipients of his volunteering. The Applicant appears to have been largely reliant on the proceeds of his sporting career and, since about 2014, on Mrs AA’s financial support.
[117] Ibid 91.
[118] Ibid.
Despite living here for approximately 15 years, the nature and strength of the Applicant’s ties are limited. Given the very significant impact on Mrs AA resulting from a non-revocation decision, however, this consideration weighs substantially in favour of revocation.

Best interests of minor children in Australia

Clause 8.4 of the Direction requires decision-makers to determine, where relevant, whether revocation is in the best interests of any minor children in Australia. This provision applies only if the child is, or would be, under 18 years old at the time when the application is decided. If there are two or more relevant children, the best interests of each child affected by the decision whether to revoke cancellation of a visa should be given individual consideration, to the extent that their interests may differ.
The Applicant makes no claims, and the evidence does not disclose, that the interests of any minor children in Australia are invoked in this matter.[119] This primary consideration is therefore not enlivened and carries neutral weight.
[119] Ibid 85-86.

Expectations of the Australian community

Clause 8.5 (1) of the Direction identifies the expectations of the Australian community:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Clause 8.5(2) of the Direction states that visa cancellation, refusal or non-revocation may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. Serious character concerns are raised because of conduct in Australia or elsewhere, of the following kind:
…
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature…;
Clause 8.5(3) provides that the above expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. As per cl 8.5(4), this consideration is ‘about the expectations of the Australian community as a whole’, and decision makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in a particular case.
Clause 8.5(4) of the Direction correlates with the reasoning in FYBR.[120] Notwithstanding the different pathways in judicial reasoning, the plurality held that this primary consideration is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government. The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[121] The High Court refused an application for special leave to appeal from the orders in FYBR.[122]
[120] FYBRv Minister for Home Affairs (2019) 272 FCR 454, at 471–2 [66] (FYBR) (Charlesworth J), and 476 [91] (Stewart J).
[121] Ibid at 473 [75]–[76] (Charlesworth J).
[122] FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
The Applicant has committed very serious offences and the Tribunal has concluded he continues to pose a real risk of causing harm to the Australian community. The Applicant’s extremely serious violent and sexual offending against an unsuspecting female stranger is such that he should expect to forfeit the privilege of remaining in Australia. The community would expect, as a norm, that the Government would not allow him to remain here.[123] This primary consideration weighs very substantially against revocation.
[123] The Direction, cls 5.2(1)-(2).

OTHER CONSIDERATIONS
Legal consequences of the decision

Clause 9.1 of the Direction states:
9.1 Legal consequences of decision under section 501 or 501CA
(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
9.1.1 Non-citizens covered by a protection finding
(1) Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.
(2) Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
(3) Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will Page 12 of 24 Direction No. 99 - Migration Act 1958 - Direction under section 499 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations.
9.1.2 Non-citizens not covered by a protection finding
(1) Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
(2) However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
(3) Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the noncitizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.

It is submitted by Mrs AA the Applicant fears returning to the Philippines for two reasons:
‘Firstly, the current President (Rodrigo Duterte) has implemented a well-documented drug policy which states “the neuralisation of illegal drug personalities nationwide”. President Duterte saying he urges members of the public to kill criminals and drug addicts. Since 2016, over 12,000 Filipinos have died as a result of this policy being implemented. The policy has drawn widespread criticism for breaches of human rights from multiple Governments, including Australia who has condemned the policy and related killings. [The Applicant’s] case received widespread media attention in both Australia and the Philippines when sentencing was handed down in 2017. He and the case are known within the Philippines which heightens the already existing risk to his life due to this policy. An investigation by the United Nations found that the policy and related killings appear to have a widespread and systemic character – this is stated in a report the UD issued in June 2020.
Further, [The Applicant] was originally sponsored to come to Australia on a sports visa... Australian Federal Police [investigated] allegations of human trafficking and exploitation against Filipino [sportspersons]...
[The Applicant] and I were approached on multiple occasions by the AFP to provide statements... We both declined as we had both received threats to our lives and to the life of [the Applicant’s] mother in the Philippines if we become involved. The threats were credible and frequent and on the advice of our layer at the time we informed the AFP we could not submit statements unless they opted to compel us through a subpoena.
Three links to media articles, and a media transcript are provided about these past events,[124] albeit with no statement from the Applicant’s mother, or the Filipino sportspersons referred to, or any information to suggest what the result of any investigation was. Mrs AA has also submitted the Applicant ‘would be handed over to the government who would then execute him’ because of its treatment of addicts. The Applicant has never been convicted of possessing illicit drugs, so it seems unlikely Filipino officials would know of past undetected drug use. The claims about persecution or death because of drug addiction conflict with the Applicant’s claims that he only ever used methamphetamine socially on ‘special occasions’, was not addicted, and has abstained from illicit drugs for the last seven years in custodial settings. If this is the case, it is difficult to understand why he might be subjected to execution because of drug addiction.
[124] Exhibit R1, 93; 98-102.
In terms of the Applicant’s claims about fearing harm from President Duterte’s drug policy, no evidence about Philippine’s drug policy was tendered. Moreover, President Duterte is no longer the President of the Philippines. On 30 June 2022, Mr Bongbong Marcos commenced a term as the 17^th President. There is no evidence about the current drug policy in the Philippines, or why this may intersect with the Applicant’s circumstances as someone who claims not to have been addicted and who has been abstinent from ice since his arrest in 2016.
There is no persuasive evidence why the Applicant may be exposed to extra-judicial killings or human rights abuses if repatriated. There is no country report or other evidence from an independent and authoritative source regarding the current operation of Philippines’ law and order policies, or why someone in the Applicant’s circumstances might fall into a category of persons who are subject to abuses, arbitrary arrest, torture, or death. The Applicant submitted in his PCF that he ‘will be applying for a protection visa due to the risk to his life [if] removed from Australia’.[125] There is no evidence he has yet done so.
[125] Ibid 97.
There is no evidence to corroborate the threats the Applicant and Mrs AA claim to have received over a decade ago, which were not reported to the police or other authorities. The Applicant has had no contact from the people who purportedly made these threats since, nor has he or Mrs AA, or his family in the Philippines come to any harm. There is no evidence about why these dated threats still reasonably elicit fears, or might be carried out, or why police in Australia or the Philippines could not protect them. There is also no persuasive evidence about why the Applicant would come to the attention of authorities when he does not face any charges in the Philippines, or why he might be extorted by police as a wealthy returnee, given he is not a wealthy returnee.
The Applicant’s criminal offending resulted in visa cancellation. This rendered him an unlawful non-citizen within the meaning of s 14 of the Act. In the event of non-revocation, he would continue to be detained under s 189 of the Act until removed or granted a visa.[126] Because of the operation of s 501E of the Act, he would be prevented from applying for another visa, other than a Protection Visa or a Bridging R (Class WR) Visa, pursuant to reg 2.12A of the Migration Regulations 1994 (Cth). There is no evidence that removal of the Applicant to the Philippines is not reasonably practicable, although how long that takes will turn on choices he or Mrs AA might make in the event of an adverse decision. This includes if a Protection Visa is lodged, or an appeal is made to the Federal Court, or a request for ministerial discretion submitted.[127] The Applicant could also seek voluntary removal, although there is no evidence what he might do in the event of an adverse decision.
[126] The Act, s 196.
[127] For example, under s 195A or s 197AB of the Act. Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, 191 [16].
If the Applicant did apply for a Protection Visa and this was rejected, he would be on a pathway to removal as soon as reasonably practicable.[128] If his non-refoulement claims were accepted, however, s 197C(3) of the Act provides that s 198 does not require or authorise removal of a person for whom a protection finding is made.
[128] The Act, s 198(2B).
The current claims advanced by the Applicant and Mrs AA do not establish a possibility that he is confronted by a real risk of suffering the types of harm referred to, such as extra-judicial killings because of drug addiction, or other human rights abuses, or the carrying out of purported threats by those who previously sponsored the Applicant’s stay in Australia as a professional sportsman. This is despite the Tribunal’s acknowledgement that the Applicant’s claims are not required to meet predetermined benchmarks and, under s 501CA(4) of the Act, consideration of these claims in the context of ‘another reason’ for revocation is less categorical that the Protection Visa process under s 36A of the Act.
On these scant and unpersuasive submissions, it is appropriate to defer assessment of the Applicant’s claims to the more comprehensive and conclusive s 36A process the Applicant claims he intends applying under. If he does, his protection claims at that time would be assessed first before consideration was given to any character or security concerns. On currently available material, however, this consideration carries neutral weight.

Extent of impediments if removed

Clause 9.2 (1) of the Direction provides:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)        The non-citizen’s age and health;

b)        Whether there are substantial language or cultural barriers; and

c)        Any social, medical and/or economic support available to them in that country.
The Applicant is 40 years old. He makes no claims about medical or psychological conditions or taking any medication. There is reference in the sentencing remarks and his documentary evidence to him having a generalised anxiety disorder, although the Court’s remarks and the two expert opinions on which they are based are approximately six years old. There is reference in the evidence to unsuccessful suicidal ideation while the Applicant was at Port Philip Prison in 2017. He also referred to an unreported incident where other prisoners came to his assistance. There is no expert corroboration of the Applicant’s current psychological health, but he stated during the hearing he takes no medication and remains very physically active with a range of sports.
There are no discernible language or cultural impediments apparent from the evidence. The Applicant was born and raised in the Philippines and lived there until the age of 25. The evidence discloses he has a mother living in the Philippines with her brother and the Applicant’s cousin. The Applicant’s sister lives in Singapore with her two children.[129]
[129] Exhibit R1, 88.
There is no persuasive evidence that appropriate medication or treatment the Applicant may require for emergent medical or psychological conditions is unavailable in the Philippines. This was not advanced during the hearing, nor was it suggested he may relapse into drug use. Mrs AA said she and the Applicant have joint bank accounts and she would continue to ‘be the main breadwinner’. It is noteworthy in this regard that Mrs AA has consistently worked full time for about 25 years and has been the Applicant’s sole source of financial support for almost a decade since his professional sporting career ended in 2014. Mrs AA stated during oral evidence that they share funds ‘50% jointly’, and during his sporting career they used his income for things like overseas holidays and buying new items for the home, whereas her employment income funded their daily needs. Mrs AA said much of their savings have since been used for legal and other fees, but there is no evidence she or the Applicant are impecunious or that the Applicant is unable to draw on some joint financial resources if removed.
Mrs AA variously stated she will accompany the Applicant if he is returned to the Philippines ‘in order to retain her mental wellbeing’.[130] In closing submissions, however, she stated that an adverse decision would end their marriage. It is accepted what Mrs AA chooses to do will be an extremely difficult but ultimately personal choice for her and the Applicant to make. If Mrs AA does accompany the Applicant to the Philippines, he would retain access to his most prominent source of emotional, practical, and financial support. It is accepted, however, that Mrs AA’s current employment is not transferrable and her ability to find work in the Philippines untested. If she were to decide to remain in Australia, there is no evidence she could not visit the Applicant or join his aspiration to perhaps recommence their relationship and business interests in an overseas location like Bali.
[130] Ibid 92.
There is limited evidence regarding the Applicant’s immediate family members, or other relatives and friends in the Philippines who may be able to provide financial, practical, or emotional support. On the Applicant’s oral evidence during this hearing, he has a mother, uncle, and a close cousin he may be able to call on if returned. He has undertaken work during the last seven years in prison as a baker, cleaner, and trainer of others in his chosen sport. He has also completed some vocational courses while trying to improve his English. Prior to departing the Philippines, he washed cars as a young person and then developed a successful career as a professional sportsperson. It was claimed during the hearing that the Applicant could not rely on commensurate support and other services in the Philippines that were available to him in Australia. The requirement under the Direction, however, is to consider an applicant’s ability to establish themselves and maintain basic living standards ‘in the context of what is generally available to other citizens of that country,’ rather than by comparison with support available in Australia. There is no evidence that if he needed it, the Applicant would not have the same entitlement to healthcare, income support, and other support services available to all citizens of the Philippines who meet required prerequisites.
The Tribunal accepts that after living in Australia for the last 15 years and after a prolonged period of imprisonment, the Applicant will experience some impediments and hardship in re-establishing himself. That said, he did so for the first 25 years of his life by undertaking some work and building a successful professional sporting career. He can also rely on continuing support from Mrs AA and perhaps some practical and emotional support from his family members. The Tribunal is unpersuaded that any impediments confronting him are insurmountable. This consideration weighs moderately at best in favour of revocation.

Impact on victims

Clause 9.3 (1) of the Direction states:
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
While the Applicant’s victim has suffered terribly, there is no evidence from her or family members to enliven this consideration, which carries neutral weight.

Impact on Australian business interests

Clause 9.4 provides that a decision-maker must have regard to any impact on Australian business interests if the non-citizen is not allowed to remain in Australia. There is no evidence that Australian business interests are enlivened within the meaning of the Direction. This consideration is not enlivened and carries neutral weight.

Additional considerations

The Tribunal can have regard to any ‘other considerations’ under the non-exhaustive list at cl 9(1) of the Direction. Mrs AA’s submissions included a contention that a non-revocation decision constitutes a continuation of the Applicant’s criminal punishment.[131] This is rejected because the ‘power to remove or deport aliens from a country is executive in nature and…non-punitive.’[132] In O’Keefe v Calwell,[133] Chief Justice Latham referred to the deportation of a convicted immigrant as a measure of protection of the community and not as punishment for any offence. More recently in Falzon at [96], Justice Nettle held that, consistent with previous High Court reasoning,[134] immigration detention is valid for the purpose of removing a non-citizen from Australia, is not punitive, and involves no exercise of judicial power or intention to impose additional punishment.[135] The Tribunal therefore places no weight on the claim that a non-revocation decision represents a continuation of the Court’s criminal sanction of the Applicant in 2017.
[131] Including Exhibit A2, 4.
[132] Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333, [29]; [88]; [93]–[94] (Falzon) (Nettle J).
[133] (1949) 77 CLR 261, 278.
[134] Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, [33]
[135] See also Falzon at [48], which referred with approval to Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 610 [74]].

CONCLUSION

Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining whether there is ‘another reason’ for revocation, the Tribunal has applied the Direction to the specific circumstances of his case. There is no reason, on these facts, to depart from the guidance in the Direction that greater weight ‘should generally be given’ to the primary considerations.
The Applicant committed unprovoked violent and sexual crimes against a vulnerable and unsuspecting female victim. Such conduct is viewed very seriously by the Australian community. The consequences for the victim were undoubtedly life changing.
The protective factors the Applicant invokes are not meaningfully different from those in place since his marriage to Mrs AA, which did not prevent his brutal attack on a stranger. Despite her staunch support, their relationship was characterised by the Applicant concealing his drug use and initially lying to her about his offending. His past conduct elicits concerns about the extent to which he would be entirely forthright in future. The Applicant’s crimes fall into a category of offending where even a low risk of repeat is unacceptable because of the grave harm any reoccurrence may cause. This is particularly so given his unmet rehabilitative needs. He constitutes a real risk of recidivism, and his conduct raises serious character concerns within the meaning of the Direction. He should expect to forfeit the privilege of remaining in Australia and the community expects, as a norm, the Government would not allow him to remain.
The strongest feature of the Applicant’s case is the adverse impact that a non-revocation decision would visit upon Mrs AA. The events of the last seven years, including this hearing, have wrought a heavy emotional toll on her. She would be confronted by a very difficult choice in the event of a non-revocation decision, with concomitant adverse impacts on her fragile mental health. The Tribunal encourage her to access the multidisciplinary therapeutic support Ms Novella referred to, and the ‘core group’ of five ‘female friends’ Mrs AA referred to at the hearing, who have stood by her during the stressful years since the Applicant’s incarceration.
In terms of impediments, the Tribunal accepts that after living in Australia for the last 15 years, the latter half of that time incarcerated, the Applicant would be confronted by impediments and hardship in re-establishing himself in the Philippines. That said, he lived there for the first 25 years of his life, undertook some work, and built a successful professional sporting career. The Tribunal is unpersuaded the impediments confronting him are insurmountable.
Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the mandatory cancellation of the Applicant’s visa should be revoked. That is because two of the three relevant primary considerations, namely Protection of the Australian community, and Expectations of the Australian community, substantially outweigh the primary consideration Strength, nature and duration of ties, and the other countervailing consideration.

DECISION

It follows that the Tribunal affirms the decision.

I certify that the preceding 150 (one hundred and fifty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

…………[sgd]……………………….
Associate
Dated: 8 August 2023

Date of hearing:

3 and 4 August 2023

Advocate for the Applicant:

Mrs AA in person

Advocate for the Respondent:

Ms Tegan Weir

Solicitors for the Respondent:

HWL Ebsworth Lawyers

[2023] AATA 2427

8 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Standing

Date of hearing:	3 and 4 August 2023
Advocate for the Applicant:	Mrs AA in person
Advocate for the Respondent:	Ms Tegan Weir
Solicitors for the Respondent:	HWL Ebsworth Lawyers