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

[2021] AATA 34

Fevaleaki and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 34 (21 January 2021)

Division:GENERAL DIVISION

File Number:2019/7962           

Re:Sione Fevaleaki

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member Rebecca Bellamy

Date:21 January 2021

Place:Brisbane

The decision under review is set aside and substituted so that the Tribunal declines to exercise the discretion to refuse the Applicant’s visa application under section 501(1) of the Migration Act 1958 (Cth).

...........................[SGD].............................................
Member Rebecca Bellamy

CATCHWORDS

MIGRATION – refusal of application for Return (Residence) (Class BB) (Subclass 155) visa under section 501(1) - where Applicant does not pass the character test – whether the discretion to refuse to grant the visa should be exercised – consideration of Ministerial Direction No. 79 – sexual offences – no prior or subsequent offending – genuine remorse and remote risk of re-offending – significant ties to community – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth)

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

Back and Minister for Immigration, Multicultural and Indigenous Affairs [2003] AATA 1105
FYBR v Minister for Home Affairs [2019] FCA 500; FCAFC 185
HZCP v Minister for immigration and Border Protection [2019] FCAFC 202
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

SECONDARY MATERIAL

Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Member Rebecca Bellamy

21 January 2021

THE ISSUE BEFORE THE TRIBUNAL

1. The Applicant is a 54-year-old citizen of Tonga. In March 1998 when he was 32 years old, he moved to Australia with his wife (who is an Australian citizen) and their children.[1] The most recent visa granted to him was a Partner (Subclass 801) (Permanent) visa in 2002.[2]

   [1] Exhibit G1, Section 501 G-documents, G2, page 44.

   [2] Ibid, G11.

2. That visa permitted the Applicant to travel in and out of Australia for a period of five years. That period had expired at the time when he departed Australia on 21 November 2018, therefore he needed a resident return visa in order to re-enter Australia.[3] On 19 November 2018, he had lodged an application for a Return (Residence) (Class BB) (Subclass 155) visa (“visa”).[4] That application had not yet been determined when he departed Australia to attend his mother’s funeral in Tonga.[5]

   [3] Transcript, pages 106 to 108. 

   [4] Exhibit G1, Section 501 G-documents, G2, page 34 - 40.

   [5] Exhibit A2, Statement of the Applicant.

3. On 1 May 2019, a delegate of the Minister (“the Respondent”) issued the Applicant with a Notice of Intention to Consider Refusal of the application for the visa under section 501(1) of the Migration Act 1958 (“the Act”).[6]  On 28 May 2019, the Applicant's representative made submissions as to why the application for the visa should not be refused.[7]

   [6] Exhibit G1, Section 501 G-documents, G2, 45.

   [7] Ibid, G2, page 49.

4. On 7 November 2019, a delegate of the Respondent refused the Application pursuant to

   
   

   s 501(1) of the Act on the grounds that he did not satisfy the character test.[8] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(b) of the Act.

   [8] Ibid, G2, pages 9 to 10.

5. The Applicant subsequently lodged an application for review in this Tribunal on 4 December 2019.[9]

   [9] Exhibit G1, Section 501 G-documents, G1.

6. The hearing of this application proceeded on 9 and 10 July 2020. The Applicant gave evidence via video conference with the assistance of an interpreter (by telephone). The Applicants wife, one his sons and two of his daughters also gave evidence. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.

   LEGISLATIVE FRAMEWORK

7. Section 501(1) of the Act provides that:

   “The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. “

8. There are two issues presently before the Tribunal:

   ·whether the Applicant does not satisfy the Tribunal that the Applicant passes the character test; and if so;

   ·whether the Tribunal considers that the discretion in section 501(1) of the Act to refuse to grant the Applicant a visa should be exercised.

   Does the Applicant Pass the Character Test?

9. The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.

10. On 16 October 2012, the Applicant was sentenced to concurrent periods of imprisonment of four years, two years, 12 months, and six months, to serve 16 months and thereafter have the balance suspended for five years. Accordingly, the Applicant has a “substantial criminal record” and does not pass the character test.

11. The Tribunal must therefore consider whether to exercise its discretion to refuse to grant the visa.

    Should the Discretion to Refuse the Applicants Visa be Exercised?

12. In considering whether to exercise the discretion in s 501(1) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.

13. For the purposes of deciding whether or not to exercise the discretion to refuse to grant a non-citizens visa, paragraph 6.3 of the Direction contains several principles that must inform a decision maker’s application of the considerations in paragraphs 7 and 8.

14. Paragraph 7(1) of the Direction provides that:

    Informed by the principles in paragraph 6.3 above, a decision-maker:

    a) must take into account the considerations in … Part B… in order to determine whether a non-citizen will forfeit the privilege of being granted…a visa…[10]

    [10] The Direction, sub-paragraph 7(1)(a).

15. Paragraph 8(1) of the Direction provides that:

    Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...a visa Applicant should have no expectation that a visa application will be approved.

16. Part B provides for the decision-maker to take into account “Primary Considerations”[11] and “Other considerations”.[12] The Primary Considerations are set out in paragraph 11(1) of the Direction (contained in Part B) and they are:

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

    (b)The best interests of minor children in Australia; and

    (c)Expectations of the Australian Community.

    [11] The Direction, paragraph 11.

    [12] The Direction, paragraph 12.

17. The Other Considerations are set out in paragraph 12(1) of the Direction (contained in Part B) and they are:

    (a)International non-refoulement obligations;

    (b)Impact on family members;

    (c)Impact on victims; and

    (d)Impact on Australian business interests.

18. I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[13]

    “…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[14]

    [13] [2018] FCA 594.

    [14] Ibid, [23].

    BACKGROUND AND OFFENDING

19. The Applicant was born in Tonga. He later moved to New Zealand where he met his wife whom he married in 1988.[15] In 1997, he travelled to Australia by himself and stayed for approximately six months. In 1998, when he was 32 years old, he and his wife moved to Australia permanently with their three children, who are now adults. They subsequently had a fourth child in Australia in 2002. The Applicant and his wife remain married.

    [15] Exhibit A2, Statement of the Applicant.

20. The Applicant has no criminal record in Tonga or New Zealand.[16] Nor does he have a criminal history in Australia except for the offences that gave rise to the Respondent’s refusal to grant the visa. 

    [16] Exhibit A4, Applicant’s Tongan Police Clearance; Exhibit G1, Section 501 G-documents, G2 page 87.

21. On 13 October 2011, the Applicant committed the following offences:

    ·            rape;

    ·            attempt to commit rape;

    ·            deprivation of liberty — unlawfully detaining or confining; and  

    ·            sexual assault.

22. The victim of these offences was a 27-year-old woman from Korea who worked at the same place of employment as the Applicant where he was her supervisor.  She, and her friends, occasionally attended the Applicant’s home after work. According to the police “Court Brief”,[17] the Applicant and the victim met at about 5:30pm at a hotel in Boonah. The Applicant bought the victim three glasses of beer, they discussed having something to eat, and then they got into his car and drove to a bottle shop to buy more beer. The Applicant drove her to dinner at the Kalbar hotel, then drove back towards Boonah. However, he then changed direction, stopped his vehicle and repeatedly told the victim that he liked her. The victim said “No. I have seen your wife and children”. The Applicant grabbed the victim and started sucking on both of her breasts. He said “I want to sleep with you. Let’s go to my place.” The victim said “No. I want to go home”. The Applicant said okay. He told her they were going to return to Boonah and then he forced himself on her kissing her and attacking her breasts. She was unable to defend herself.

    [17] Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions, Annexure A, pages 11 to 12.

23. The Applicant then took the victim’s pants off and put his fingers in her vagina for between five and 10 minutes. While her pants were down, he tried to insert his erect penis into her vagina. The victim stopped him and kept repeating “Stop”. The Applicant kept telling her to “shut up” and “I want you”. The victim told him to go home to Boonah. The victim saw a vehicle driving past and she started to scream for help. The Applicant placed his hand over her mouth and asked her why she had screamed. She said she wanted to go home. He then drove his vehicle back to his residence and parked it in the front yard. The victim then got out and ran away towards a nearby shopping centre. While doing so she flagged down a police vehicle and reported the incident.

24. Police later attended the Applicant’s address and he partly confirmed the victim’s account however he denied having any kind of intimate relationship with her, saying he she had made advances towards him, but he had told her that he was married.

25. The Applicant speaks poor English and he said in the hearing that when he was interviewed by the police, he did not fully understand what they were saying and he “…made some responses not fully understanding it”[18]. He said he could not remember if he told the victim to “shut up” or “I want you” after she said stop, however he said he must have done so.[19] Nor could he remember if she screamed for help but he was willing to accept that she did.[20] The Applicant denied that he had digitally penetrated the victim for five to 10 minutes, saying it was a maximum of two or three minutes.[21] Given his willingness to accept other aspects of the offending despite not recalling them, I am inclined to accept his denial about the length of time his fingers were inside the victim’s vagina. Even two or three minutes is a substantial period of time for the victim to have to endure the degradation, revulsion and fear that she surely must have felt.        

    [18] Transcript, page 77, lines 31 to 32.

    [19] Transcript, page 73, lines 35 to 45.

    [20] Transcript, page 73, line 46 to page 74, line 11.

    [21] Transcript, page 80, lines 14 to 15.

26. In the hearing, the Applicant provided further details relevant the offending. When the Applicant left school in grade 10, he started drinking alcohol. After the birth of his second daughter (in 2002) he stopped consuming alcohol. He said he did not drink again until the night of the offending.[22]

    [22] Transcript, page 85, lines 11 to 20

27. He said before the night of the offending, the victim used to go to his home after work and drink beer and eat noodles. She would stay until after 10pm or after midnight. He did not consume alcohol with her, and he had no feelings of attraction towards her during those times. She used to ring him up and offer him a lift to work, he would tell her that it was alright as he had his own car but she would insist and pick him up.[23] The Applicant’s wife gave evidence that the victim and other Koreans used to go to their house and “party”[24] and that she did not like it as she worried that they would influence the Applicant to consume alcohol.[25]

    [23] Transcript, page 94, lines 1 to 22.

    [24] Transcript, page 34, line 45 to page 35, line 10; page 36, lines 30 to 35.

    [25] Transcript, page 36, lines 40 to 41.

28. The Applicant said that on the night of the offending he was at the pub placing a bet when the victim phoned him wanting to meet up. She sat in the bar area drinking beer while the Applicant placed his bet. She had more drinks then wanted to play the poker machines, which they did. She kept drinking and they decided to order dinner however she wanted seafood and there was no seafood at that venue. They went somewhere else for dinner. While they were waiting for the seafood the victim asked the Applicant “Do you like smoking marijuana?” He was shocked and said “No, I have never smoked marijuana in my life”. He asked her if she had, and she said “yes”. He said the victim encouraged him to drink,[26] and that, not having had a drink in a long time, he felt strange.[27] The victim wanted more alcohol, so they went back to his car to drive to get more alcohol.

    [26] Transcript, page 86, lines 6 to 14.

    [27] Transcript, page 79, lines 15 to 46

29. When the Applicant and the victim were in his car she touched his arms, face and head.[28] He thought that because the victim was drinking with him, had played the poker machines with him, and touched his arms, face and head, that she was sexually interested in him and coming onto him.[29] This is consistent with representations that he made to the Respondent in 2013 when his visa was being considered for cancellation. He referred to the victim’s “advances in touching” him heightening the “lust and appeal to my male instincts” and he said he gave in to his “weak human nature” when presented with another female body closely touching his.[30] However, the Applicant admitted that when the victim said “no” and “stop” he understood what she was saying.[31]

    [28] Transcript, page 93, lines 21 to 34.

    [29] Transcript, page 94, lines 27 to 33; page 100, line 41 to page 101, line 14.

    [30] Exhibit G1 Section 501 G-documents, G2, page 19.

    [31] Transcript, page 75, lines 36 to 40.

30. The Applicant said that after the offences occurred, the victim told him that she wanted to be dropped off at her car which was parked at a shopping centre near his home. He said he went to his home first to unload his shopping and that when he started taking his shopping upstairs the victim was standing drinking beer. When he came back downstairs, she was gone.[32]

    [32] Transcript, page 74, lines 20 to 40

31. The Applicant had given a version reasonably consistent with this to Dr Jacqueline Yoxall, psychologist, in July and August 2019. The facts set out in Dr Yoxall’s report dated 25 August 2019 are that the Applicant met the victim at his work at a factory, where was her supervisor.[33] He had known her for only a few months before the offending took place and she spoke little English. They struck up a friendship and he was sexually attracted to her (although it is not apparent from the report whether he said he was attracted to her before or only on the night of the offending). On the night of the offending, she agreed to have dinner with him and became intoxicated. They decided to drive to get more alcohol. During the journey the Applicant stopped the car because he thought the victim wanted to have sex. He said when they started to engage in physical intimacy, he thought she had given consent for them to have sex. However, the victim became very upset, agitated and angry and tried to get out of the car. The Applicant panicked because the victim was so upset and he did not want her to hurt or harm herself accidentally, and because he did not know what to do to calm her down. He said he prevented her from getting out of the car saying “We were in the middle of nowhere… I didn’t want her to just run off”.[34] He drove home to get more beer and the victim disappeared.[35] He found it difficult to communicate clearly with the victim because they did not have a common language in which they were both fluent. He said he thought the victim had consented, so he was shocked when he was later charged with the offences.[36]

    [33] Exhibit G1, Section 501 G-documents, G2, page 93.

    [34] Ibid, G2, page 102.

    [35] Exhibit A2, Statement of the Applicant, paragraphs 29 to 33.

    [36] Ibid, paragraph 37

32. I accept the Applicant’s evidence about the events and circumstances surrounding the offending except for his assertion to Dr Yoxall that he believed the victim had consented. This seems to be a very strange assertion given his acknowledgment that the victim said “no” and “stop” and that he understood those words.

33. On 16 October 2012, the Applicant was sentenced for the four offences. The sentencing remarks included the following:

    “You pleaded guilty to four very serious offences. On the evening of the 13th of October last year… you sexually attacked a young woman who was 27 years of age and was a visitor here from Korea.

    You were 45 years of age and you were her supervisor at the factory that you both worked at. You had struck up a friendship with her at work. That evening she agreed to go to a hotel with you.

    But when you were driving her in your vehicle you ultimately made sexual advances to her which she rejected, but you persisted by sucking on her breast, putting your fingers in her vagina and attempting to rape her, and effectively keeping her in your vehicle against her will. She made it clear that she did not want any sexual contact with you, and as soon as she could she fled from your vehicle.

    It is clear from the victim impact statement from the young woman that this offending has had a significant detrimental effect on her, and a year later she is still suffering.

    She was in a particularly vulnerable situation. She was only a visitor to this country and did not speak English well, and there was a significant difference between your respective physical sizes. She has said that she was very scared of you, and it would have been a terrifying ordeal for her.

    In your favour you have pleaded guilty to these offences. Particularly that has meant she has not had to give evidence in Court.

    You have no previous convictions for any offences whatsoever. You are a mature man. You are a family man with a wife and four children, and I accept that you have otherwise been a good provider, husband and father. You have also played an active role in your church, but you have brought shame upon your family and your church by your behaviour.

    I accept from the letters that have been written on your behalf that this behaviour was out of character, and given your age and your lack of previous criminal convictions I can conclude that there is no evidence that you are likely to offend in the future.

    Nevertheless, it is important that courts recognise the very serious nature of this sort of offending, and particularly the dramatic and serious impact such offending has on the victims and therefore impose significant penalties on those who commit these sorts of offences.

    Clearly a significant term of imprisonment is called for…having regard to your personal circumstances, the circumstances of the offending which do not include any gratuitous violence, and your pleas of guilty, the appropriate head sentence in my view is one of four years’ imprisonment.”

1. The Applicant was sentenced to concurrent terms of imprisonment of:

   ·     six months for indecent assault (sucking the victim’s breasts);

   ·     one year for deprivation of liberty (keeping the victim in his car);

   ·     two years for attempted rape (attempting to insert his penis); and

   ·     four years for rape (digital penetration).

2. The material before me includes representations by the Applicant and his wife to the Respondent, dated in 2013, putting forward reasons why the Respondent should allow the Applicant to remain in Australia.[37] The materials also include a written notice to the Applicant of a decision not to cancel his visa.[38] The inference from these documents is that in 2013 the Respondent considered cancelling the Applicant’s visa due to his offending and subsequently decided not to. This was accepted by both parties. It might therefore seem somewhat incongruous that in 2019 the Respondent refused to grant the Applicant a resident return visa on the basis of the same offending, and I sought some clarification from the Respondent about that. The Respondent’s lawyer very helpfully pointed out that the Ministerial direction that applied at the time the Respondent decided not to cancel the Applicant’s visa in 2013 (Direction 55) differed materially from the current direction (Direction 79), noting for example it did not require consideration of the expectations of the Australian community.[39] There is also the fact that the decision to cancel a visa and the decision to refuse a visa are different kinds of decisions. 

   [37] Exhibit G1, Section 501 G-Documents, G2, pages 19 to 25.

   [38] Ibid, G2, page 33.

   [39] Transcript, page 114, lines 26 to 40.

3. The Applicant was released from gaol in February 2014.  He returned to the family home, re-engaged with his church and sought employment. He initially found it hard to get employment because of his offending but he ultimately managed to get a job. He has not committed any further offences. When the Applicant travelled to Tonga for his mother’s funeral in November 2018, he did not realise his application for a resident return visa might be denied.[40] He said had he known he would not be able to return, he would not have gone.[41]

   [40] Transcript, page 90, lines 29 to 30

   [41] Transcript, page 90, lines 1 to 10.

   PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY

4. In considering this Primary Consideration A, paragraph 11.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that there is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct.

5. In determining the weight applicable to Primary Consideration A, paragraph 11.1(1) of the Direction requires decision-makers to 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 Applicant’s Conduct to Date

6. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 11.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, including:

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

   (b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

   (c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or Government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

   (d)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence under section 197A of the Act;

   (e)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;

   (f)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;

   (g)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

   (h)The cumulative effect of repeated offending;

   (i)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

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

7. Rape is an extremely serious offence. While I accept that the offending was not premeditated and it did not involve physical injury, it was prolonged and sustained. The victim said “stop” and “no”, yet the Applicant continued to sexually assault and rape her. She asked to be let out of the car, and she screamed, yet the Applicant did not let her out and put his hand over her mouth. 

8. In accordance with factors (a) and (b) of paragraph 11.1.1(1) of the Direction, sexual or violent offences against woman are very serious. Obviously, the rape, attempted rape and sexual assault are sexual offences. To my mind, the act of digitally penetrating the victim (the rape) was also violent as it was a forced physical invasion of the victim’s body. As the learned sentencing Judge pointed out, the victim was a lot smaller in stature than the Applicant, making her vulnerable. Whether or not her vulnerability rises to the level contemplated by factor (c) of paragraph 11.1.1(1) of the Direction, it is nevertheless relevant that the offences occurred in the context of the Applicant and victim both being aware that the Applicant could physically overpower the victim.        

9. A custodial sentence is normally a sentence of last resort in the hierarchy of sentencing options available to a court. The learned sentencing Judge imposed a separate sentence of imprisonment for each offence, indicating that each separate unlawful act was so serious that it warranted imprisonment. The longest term, four years, is a substantial period. In the context of the learned sentencing Judge’s finding that the Applicant was of otherwise good character and there was no evidence that he was likely to offend in the future, the Applicant was required to serve 16 months of the sentence in goal.

10. Factors (d), (e) and (g) to (j) of paragraph 11.1.1(1) of the Direction do not apply.

    The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

11. Paragraph 11.1.2(1) of the Direction provides that a decision-maker should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. Paragraph 11.1.2(2) provides that decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently, in Australia.

12. In considering the risk to the Australian community presented by an applicant, the Tribunal must have regard to the two sub-considerations listed in paragraph 11.1.2(3) of the Direction cumulatively. They are:

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

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

    (i)information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and

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

    (iii)the duration of intended stay in Australia.

13. Paragraph 11.1.2(4) of the Direction provides a decision-maker should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.

    Nature of harm should the Applicant engage in further criminal or other serious conduct

14. The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date. This assessment is also informed by the provisions in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases and that there is a low tolerance of any criminal or other serious conduct by visa applicants.

15. The harm to individuals in the Australian community from further sexual offending of the kind committed by the Applicant includes physical, emotional and psychological trauma that can be significant and long-lasting. The victim in this case was still suffering psychological distress 12 months after the offences. Family and loved ones of the victim often suffer with the victim. This sort of offending has a significant impact on wider society in terms of the ever-present fear and apprehension felt by members of the community in relation to certain public spaces or social situations that are perceived to carry a risk of sexual assault. The harm from further offending of this nature is so serious that any real risk of it occurring is unacceptable.  

    Likelihood of engaging in further criminal or other serious conduct

16. The Applicant seeks to return to return to the Australian community and reside here with his wife and family on a permanent basis.  

17. I have before me information from independent and authoritative sources on the likelihood of the Applicant re-offending, namely the learned Judge’s sentencing remarks and the report of Dr Yoxall. I will leave these to the end of my consideration. Also before me is evidence with respect to the rehabilitation achieved by the Applicant since the offending including evidence about the time he spent in the wider Australian community between his release from gaol and his departure to Tonga.

18. The Applicant had not committed any criminal offences prior to the offences that are the subject of the visa refusal and he has not offended since.

19. According to what the Applicant told Dr Yoxall, after the offending he engaged in substantial self-reflection and changed his behaviour and his life.[42] He did not complete any sex offender courses while in gaol but he had counselling from pastors.[43] After being released, he re-engaged with his church and became involved in supporting the youth of the church through choir.[44]  His evidence concerning his involvement in the church is corroborated by a letter of support dated 11 March 2019 from the Park Church Tongan Congregation of the Uniting Church.[45] There is another letter of support from that church, specifically from Reverend Molitika, dated in May 2019,[46] which states that the Applicant’s “gift of music has been recognised throughout the Tongan Community of Brisbane”. He said:

    “Our traditional Tongan Singing called ‘Hiva Usu’ (Which means Singing without Notation) which is very rare nowadays and it starts to vanish from our Tongan Culture but [the Applicant] is an expert of that and he revives our ‘Hiva Usu’ style in our Tongan community.”

    [42] Exhibit G1, Section 501 G-documents, G2, page 104.

    [43] Transcript, page 83, lines 32 to 46.

    [44] Transcript, page 82, paragraphs 43 to 44.

    [45] Exhibit G1, Section 501 G-documents, G2, page 43.

    [46] Ibid, G2, pages 149 to 150.

20. The Reverend said the Applicant was hired by all the Tongan Christian churches in Brisbane to help with their singing. He said the choirs are desperate to have the Applicant back so they can continue their singing. He further said that he had seen the impact that the Applicant “as a new person” made to his church that his contributions uplifted families in many ways. He said the Applicant had made new friends in the church and that he and his whole family enjoy the fellowship of the church.

21. The Applicant’s wife gave evidence that when the Applicant came out of gaol, he was a different man. He apologised to her, their family, the church and the Tongan community.[47] He has been much more involved in the church, their family and in the community since his release.[48] She said “and even when we have sharing at church, he - he share what he - what he did was really wrong. He don’t do shy to hide it from everyone. He share it to the members and then he said that he hate what he did.”[49]

    [47] Transcript, page 31, lines 15 to 30.

    [48] Transcript, page 42, lines 42 to line 17.

    [49] Transcript, page 32, lines 27 to 30.

22. I have before me letters of support from the Applicant’s wife,[50] and children,[51] his daughter-in-law,[52] his adult niece,[53] his former employer,[54] the church council chairperson of the Park Uniting Church,[55] a person who has been a family friend for around five years, [56] three other persons involved in the Park Uniting Church,[57] a pastor at the Wesleyan Methodist Church who has known the Applicant for more than 10 years,[58] and a relative of the Applicant who has known him for over 30 years.[59] These letters all speak well of the Applicant and they provide a consistent impression that the Applicant is (apart from the offending) a family oriented and a contributing member of his church community. For example, the Applicant’s younger daughter described the Applicant encouraging her in academic and sporting pursuits, and his older daughter described his support when her baby was born prematurely and when she had to have heart surgery in 2018. I accept the submission made by the Respondent that it is generally to be expected that close family members would think more highly of one another than the broader public, and that the “the views of such people are unlikely to serve as an accurate “touchstone” as to a person’s character”[60]. I am also mindful that persons involved in a Christian church are usually more inclined to see the good and potential for good in others. However, I give credence to these letters of support as a whole because they are factual, describing what the Applicant has done and does do, as opposed to the bland use of superlatives that one sometimes sees in letters of support. What is more the authors of the various letters (with the exception of the Applicant’s younger daughter) appear to be aware of the nature of his offending.

    [50] Exhibit G1, Section 501 G-documents, G2, page 21.

    [51] Ibid, G2, pages 123 134, 137 and 141,

    [52] Ibid, G2, page 145.

    [53] Ibid, G2, page 147.

    [54] Ibid, G2, page 151.

    [55] Ibid, G2, page 152.

    [56] Ibid, G2, page 153.

    [57] Ibid, G2 pages 155 to 157.

    [58] Ibid, G2, page 158.

    [59] Ibid, G2, page 159.

    [60] Back and Minister for Immigration, Multicultural and Indigenous Affairs [2003] AATA 1105.

23. The Applicant expressed extreme remorse for the offending, although his remorse seems rather focused on his perception of the offence as infidelity and his wife as the main victim. In 2013, he made representations to the Respondent,[61] in which he expressed his shame and regret, and his devotion to his wife and family. He promised never to re-offend. He said that apart from “the sad incident” he had been faithful to his wife throughout their 25 years together. He described his offending as a “sin”. He described receiving “big cultural shaming from my family, my Tongan community and my Tongan local church”.[62]

    [61] Exhibit G1, Section 501 G-documents, G2, pages 19 to 20.

    [62] Ibid, G2, page 19.

24. In 2019, according to Dr Yoxall he told her he felt very ashamed about the incident because he had been unfaithful to his wife. He expressed remorse and deep shame. He said he was sorry he caused fear and distress to the victim and that he hurt his wife by being unfaithful to her. He said sex outside of marriage is taboo in Tongan culture and he felt very guilty about it. He said his judgement was very poor at the time.[63]

    [63]  Ibid, G2, page 103.

25. In the hearing the Applicant agreed that he felt more upset about being unfaithful to his wife than what he had done to the victim.[64] While his particular “take” on the offending seems unpalatable, it also appears to provide powerful motivation for him to avoid re-offending. The Applicant and his wife are still together and there is no suggestion that the situation will change. Towards the end of the Applicant’s evidence, I was unsure of whether he understood why his actions were criminal actions, so I asked him if he knew what rape meant. He said “when you force the other party or woman sexually.[65] I am satisfied that the Applicant understands the gravamen of his offending.

    [64] Transcript, page 83, lines 12 to 20.

    [65] Transcript, page hundred and four, line 28.

26. The Applicant’s wife, in a letter written in 2013,[66] said the Applicant had confessed to his “sin and human failure” and that he was sincerely and genuinely remorseful. She described him giving in to “his male instincts” and she blamed herself for not having been home that night. In the hearing when she recalled first finding out what the Applicant had done, she said it was hard for her to take and she wanted to die. My impression was that, although she seemed to want to partially excuse the Applicant’s behaviour, she appreciated that it was a serious crime and was horrified by it.

    [66] Exhibit G1, Section 501 G-documents, G2, pages 21 to 22.

27. It is apparent that in addition to regretting having committed the offences, the Applicant also regrets the consequences of his offending, including the shame he brought on himself and his separation from, and thus inability to support, his family. I am satisfied that the Applicant is very remorseful for the offending, and he is strongly motivated to avoid suffering the consequences that would flow from further offending.

28. An assessment of the risk of future offending requires an examination of the factors that contributed to the original offending. The Applicant said he was affected by alcohol and he misinterpreted the victim’s behaviour so that he thought she wanted to engage in sexual activity with him. The Applicant did not claim that he was so intoxicated that he was not in control of his decisions or actions. Rather, in representations he made to the Respondent about the offending in 2013, he referred to “giving in to temptation” and did not refer to intoxication. I think it is likely that the alcohol reduced the Applicant’s inhibitions and impaired his judgment but not so that he did not know that the victim was protesting.  

29. The Applicant and his wife both gave evidence that the Applicant did not consume alcohol in the years prior to the offending. The Applicant also said he has not consumed alcohol since the offending, and his wife said he would let their family and the church down if he ever did consume alcohol again.[67] However, according to Dr Yoxall’s report, dated in August 2019, the Applicant told her that he had consumed alcohol since his late adolescence, was caught drink-driving in his twenties and that for most of his adulthood he abstained from alcohol during the week but consumed it on weekends, often around 10 drinks. Since the offending he reduced his alcohol intake and now might consume four or five beers each weekend.[68] This is markedly different from the unchallenged evidence that the Applicant and his wife gave in the hearing. Further there is no evidence of any drink-driving conviction in the materials before me. Dr Yoxall did not give evidence in the hearing.

    [67] Transcript, page 14, lines 34 to 40; page 85, lines 11 to 20; page 36, lines 40 to 45; page 47, lines 19 to 24.

    [68] Exhibit G1, Section 501 G-documents, G2, page 101.

1. The written representations made by the Applicant and his wife, and the letters of support from the Applicant’s friends and family members, prior to 2020, do not refer to the Applicant having abstained from alcohol before and after the offending. They more generally refer to the Applicant being remorseful and having reformed after the offending. For example, there is a letter from a Minster of the Uniting Church, dated 22 May 2019, that says:

   “With my experience walking a long side (sic) [the Applicant] in the last few years, he is a man who changed his ways of the past and learned from it to become a better person, especially for his family, his church and his community.”[69] 

   [69] Ibid, G2, page 156.

2. I would not necessarily expect letters of support to specifically mention the Applicant abstaining from alcohol (if he had at that time) if his abstention was part of a larger effort to improve himself.

3. In a letter from the Pastor of the Nanango Wesleyan Methodist Church dated 4 May 2020, the author stated that he had known the Applicant since 1999, and he specifically mentioned the Applicant abstaining from alcohol. He said the Applicant:

   “accepts full responsibility for the offences and the consequences of his criminal offences. He made an affirmation that he has given up alcohol and turn (sic) to Jesus his only saviour”. [70]

   [70] Exhibit A3, Letter of Support of Pastor Kelepi Nuku Piukala.

4. While I am reluctant to dismiss Dr Yoxall’s report of what the Applicant apparently told her about his alcohol consumption, I am equally reluctant to dismiss the unchallenged evidence of the Applicant and his wife which is somewhat corroborated by a church Pastor. On balance, I accept that the Applicant does not presently consume alcohol and that he is committed to abstaining from alcohol on a permanent basis. This removes one of the risk factors in relation to the prospects of further offending.         

5. The other key risk factor was the Applicant’s determination to engage in sexual activity with the victim, on the basis that he thought she consented, even after she gave clear signals that she did not consent. His behaviour went beyond “giving in” to temptation: he forced himself on the victim. This element of the offending, regarding his attitude towards consent, was not adequately explained or addressed by or on behalf of the Applicant. Normally an unresolved risk factor such as this would give me great cause for concern with respect to the prospects of further offending. However, I am satisfied that the Applicant now realises that he misinterpreted the victim’s behaviour. The evidence of the Applicant and his wife was to the effect that he now has an extreme aversion to ever placing himself in a similar situation or engaging in that sort of behaviour again.       

6. The Applicant was asked if he thought he should get professional help and whether he needed it, to which he answered in the affirmative.[71] However, my impression is that he was trying to be agreeable. The rest of his evidence indicated that he believed he had already rehabilitated, for example:

   “What I’m trying to say here is, at this stage of my life I had 20 started having times with this spiritual work that I have done with the pastors, and like I said, I had changed my life; I had turned around my life and concentrate on my family. But the priority to me is, if I abide by this spiritual help I get, which I feel that I am, that stops me from having to drink again, and that offence that happened was because it was my dark moment of 25 drinking and that, and that is why I had said I have changed my life, because I do not drink any more alcohol. I know that from the spiritual guidance if I concentrate on the right path then I won’t go astray to do these wrong things that has (sic) happened. So to me, that’s why I feel that this spiritual guidance has helped me, (indistinct) have helped me that way, and like I said, if you feel 30 that - to me, I won’t mind if I get professional help, but the reason why I have changed now is because of these counselling from the pastors and the religious sessions that I have, and I have physically turned my life around now.”[72]

   [71] Transcript, page 84, line 15.

   [72] Transcript, page 84, lines 20 to 34.

7. The Applicant added that he believed that he was the only one who would keep his life going in the right direction,[73] which indicates to me that he accepts full responsibility for his conduct going forward.  

   [73] Transcript, page 84, lines 44 to 45

8. In 2012, when the Applicant was sentenced, the learned sentencing Judge said that there was no evidence that the Applicant was likely to re-offend. I take that to mean the Applicant was not considered to pose a high risk of re-offending. The Applicant has, in fact, not re-offended in the seven years since his release from gaol.

9. Dr Yoxall reported that, following the offending the Applicant had re-engaged with his church and he was involved in supporting the youth of the church. His wife is a lay preacher and his children are all members of the church. The Applicant is struggling being away from his family. He is constantly preoccupied by thoughts and worries about his family. He has little joy from anything in life except talking to his family via phone.

10. Dr Yoxall applied an actuarial risk assessment tool called the Static-2002R. This tool measures risk among groups of sex offenders and Dr Yoxall noted that it does not directly correspond to the recidivism risk of an individual offender. She said an offender’s risk may be higher or lower than the probabilities estimated by the Static-2002R depending on other risk factors not measured by the instrument. This instrument places an offender in one of five risk categories low, low-moderate, moderate, moderate high, and high. Low is 0-2. High is 9+. The Applicant scored two, placing him in the low risk category. She said people in the Canadian normative sample with this score sexually reoffended at a rate of 4.5% over five years, 5% over 10 years, and 16% over 15 years. The normative sample was made up of sex offenders, not the general public.

11. Dr Yoxall also applied the Sexual Violence Risk-20 (“SVR-20”) checklist that includes 11 risk factors relating to psychological adjustment, seven risk factors relating to sexual offences and two factors relating to future plans. The Applicant did not present with any risk factors, therefore his risk of sexual re-offending was low. 

12. Dr Yoxall also administered a tool aimed at predicting the risk of general recidivism, the Level of Service Inventory-Revised (“LSI-R”). The Applicant scored in the 8.6 percentile indicating that 91.4% of the normative sample scored higher than the Applicant.

13. Overall, Dr Yoxall assessed the Applicant’s risk of sexual reoffending as low because:

    ·     prior to 2011 he had no criminal history;

    ·     the offending occurred on one night in the context of a misunderstanding of the relationship with the victim and consent which was compounded by poor English language and alcohol consumption;

    ·     the impact of incarceration and separation on the Applicant’s family has been substantial;

    ·     the social stigma has been substantial; and

    ·     the fear of incarceration is a significant deterrent to any form of future offending.

14. Dr Yoxall opined that the risk would be further reduced if the Applicant were to engage in psychological intervention to address the offending behaviour and the factors that contributed to the offending.

15. The Respondent submitted that Dr Yoxall’s report should be regarded with caution because:

    ·     it was predicated upon an inaccurate version of the Applicant’s offending provided by him;

    ·     Dr Yoxall did not have the benefit of the more detailed facts of the offending contained in the police Court Brief;

    ·     Dr Yoxall was unaware that:

    o   the Applicant put his hand over the victim’s mouth when she screamed for help;

    o   she repeatedly told him that she did not want any sexual contact and struggled with him; and

    o   he repeatedly told her to shut up and that he wanted her when she told him to stop.

    ·     it is therefore not accurate that the offending arose from the Applicant’s misunderstanding of the relationship between him and the victim and his failure to adequately navigate issues of sexual consent.

16. I respectfully agree that the offences did not arise from any misunderstanding. Rather it followed a misunderstanding: the Applicant’s initial advances arose from a misunderstanding, but the offences did not.  

17. The Applicant scored low on both assessment tools and he had none of the factors on the sexual violence risk checklist. The fact that he had any score at all on the LSI-R was mainly due to his previous offending.

18. The Applicant is 54 years old. In that time, including 36 years as an adult, he has broken the law on one occasion. Apart from that, he is a law-abiding, pro-social person who is surrounded by law-abiding, pro-social members of the community. He is not a person who needs to break entrenched habits or who has not demonstrated an ability to be a law-abiding adult. On the basis of his rehabilitation so far, I am satisfied that he is committed to making up for his offending and never repeating it.

19. Taking into account, Dr Yoxall’s evidence and the other relevant evidence, I assess the Applicant’s risk of re-offending as no higher than remote. In other words, it does not rise to the level of a real risk. 

    Conclusion: Primary Consideration A

20. Primary Consideration A weighs in favour of non-revocation. Due to the very low risk of re-offending, I am unable to give this Primary Consideration significant weight.

    PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

21. Paragraph 11.2(1) of the Direction compels a decision-maker to make a determination about whether refusal is or is not in the best interests of a child who may be affected by the refusal to grant the visa. Paragraphs 11.2(2) and 11.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether to refuse to grant the visa is being made.

22. The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:

    ·     the nature and duration of the relationship between the child and the non-citizen, noting that less weight should generally be given where there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    ·     the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the time until the child turns 18, and including any Court order relating to parental access and care arrangements;

    ·     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    ·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizens ability to maintain contact in other ways;

    ·     evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect;

    ·     whether there are other persons who already fulfil a parental role in relation to the child; and

    ·     any known views of the child.

23. The Applicant claimed that there were four minor children whose best interests would be affected by the refusal of his visa. They are his youngest daughter (“Ms A”), a granddaughter (“Child K”), and two grandsons (“Child S” and “Child D”).

24. The Applicant’s youngest daughter, Ms A, was born in 2002. She is no longer a minor and therefore her best interests are not relevant to this Primary Consideration.

25. Child D was seven months old when the Applicant left Australia and he has been physically absent from Child D’s life for two years. Child D and his mother, the Applicant’s elder daughter (“Ms E”), live with the Applicant’s wife. Child D was born prematurely, and three days later Ms E had open heart surgery. The Applicant said he helped with Child D’s upbringing, changing nappies, making bottles and spending time with him when Ms E needed to attend hospital appointments. Ms E corroborated this.

26. Child D is cared for by Ms E and the Applicant’s wife, and Ms E works part-time.[74] Ms E said it took around six months for her to heal following her surgery and during that time Child D bonded more with her mother than with her. In addition, her work requires her to do 24-hour shifts so her mother looks after Child D when she is at work and he sometimes sleeps with her mother.[75] Child D calls Ms E by her first name and he calls the Applicant’s wife “mum”.[76] Child D’s father lives with his own mother while he awaits a divorce. There appeared to be some uncertainty in Ms E’s evidence about whether Child D’s father would live with him and Ms E as a family once the divorce was finalised. Presently he only visits Ms E and Child D.[77]

    [74] Transcript, page 61, lines 11 to 16.

    [75] Transcript, page 63, lines 40 to 46

    [76] Transcript, page 63, lines 33 to 35

    [77] Transcript, pages 62 to 63

27. It is possible for the Applicant to maintain contact with Child D by telephone if he remains in Tonga. However, Ms E would like Child D to have the same kind of bond with her parents that Child S has (see below). [78] I accept that the Applicant fulfilled a very important care-giving role for Child D following his birth, and that Ms E wants the Applicant to continue in that role. I am satisfied that the Applicant has been, and would be, a positive influence in Child D’s life, and there are many years in which the Applicant can make a positive contribution if he is allowed to return to Australia. Presently Child D is cared for by his mother and grandmother, with his father having some limited involvement in his life. The best interests of Child D warrants moderate weight under this Primary Consideration. 

    [78] Transcript, page 58, lines 35 to 45; page 60, lines at 25 to 30.

28. The Applicant’s younger son and his wife are the parents of Child K and Child S. Child K, a granddaughter, was barely two years old when the Applicant left Australia. The Applicant said that he was very close to her because she and her parents would visit his home on almost a daily basis. He has now been physically absent from her life for a little over two years. She lives with, and is cared for, by her mother and her father. There is no suggestion that the Applicant has or would ever be called upon to fulfil a parental role for her. The Applicant and Child K can maintain contact by telephone if he remains in Tonga. While I accept that it is in Child K’s best interests to have the Applicant physically present in her life in the role of a grandparent, I allocate only very limited weight to this Primary Consideration.   

29. Child S was three years and five months old when the Applicant left Australia. Until that time, the Applicant and his wife had fulfilled the parental role in relation to him. They had informally adopted him and raised him in their home. According to the Applicant, in Tongan tradition the eldest grandchild is raised by their grandparents. Child S, calls the Applicant “Dad” and the Applicant’s wife “Mum”.[79] The Applicant said Child S normally lives with him and his wife and has done since birth but sometimes they take him to his parents on the weekends.[80] Child S’s father, the Applicant’s son, corroborated his evidence about Child S.

    [79] Exhibit A2, Statement of the Applicant, paragraph 18.

    [80] Transcript, page 17, line 39 to page 18, line 14.

30. Child S’s father said Child S currently lives with the Applicant’s wife except for weekends and school holidays. He said Child S cries for the Applicant ever since he left.[81] In a letter he wrote in May 2019,[82] he said that the Applicant’s absence from home had been emotionally devastating to his family as Child S was still too young to understand and cope with the fact that the man who he calls “dad” was not around anymore. He described the Applicant as a loving, caring and hard-working man who used to work overtime to provide for his family “making sure that everyone is feeling happy and safe at home”. He said the Applicant loves and cares for Child S as though Child S were his own, that he had a very close bond with Child S, and that he had been taking good care of him and providing for his needs and wants from the moment he was born. He said Child S was comfortable and happy living with the Applicant and his wife. He said during the time the Applicant had been away, Child S did not seem as happy, and seemed quieter and less active. He described Child S talking about the Applicant a lot, crying easily when he does not get what he wants, continually calling out the Applicant’s name and saying he wants to see “dad”, and pushing a little suitcase around the house saying he is going in the aeroplane to pick up his dad from Tonga. Child S’s father has no intention of ever raising Child S himself.[83] He currently provides financial support for Child S,[84] and the families live only 10 minutes away from each other.[85]

    [81] Transcript, page 53

    [82] Exhibit G1, Section 501 G-documents, G2, page 141.

    [83] Transcript, page 55, lines 1 to 4.

    [84] Transcript, page 56, lines 21 to 26.

    [85]  Transcript, page 56, lines 43 to 44.

31. The Applicant’s wife and Child S have visited the Applicant in Tonga on four occasions in the two years that he has been there. The Applicant could, and does, maintain contact with Child S by telephone. There is no suggestion that Child S is not well cared for by the Applicant’s wife or by his own parents on weekends and school holidays or that he will not continue to be adequately cared for by these people.  

32. I am satisfied that the Applicant, pursuant to an informal arrangement, fulfils the role of father to Child S and that his wife fulfils the role of mother. I accept that there is a strong emotional bond between Child S and the Applicant, and that Child S is suffering from the Applicant’s absence. Even with the Applicant in Tonga, Child S remains living with the Applicant’s wife which is consistent with Child S’s father’s evidence that he does not intend to raise Child S. The Applicant’s absence from Australia means that Child S is without one of his primary caregivers. This child is only five years old, meaning there are 13 years in which the Applicant could positively contribute to his life in the role of primary caregiver if he is allowed to return to Australia. It is in Child S’s best interests for the Applicant to be granted a visa and I allocate this consideration significant weight in relation to Child S. 

    Conclusion: Primary Consideration B

33. The best interests of Child K, Child D and Child S combined weigh significantly in favour of the Applicant.

    PRIMARY CONSIDERATION C – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

    The relevant paragraphs in the Direction

34. In making the assessment for weight to be allocated to Primary Consideration C, paragraph 11.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Moreover, I should proceed on the basis that the Australian community expects that the Australian government can and should refuse a person’s visa if they commit serious crimes. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. I must have due regard to the Government’s views in this respect and any overarching principles in the Direction.

35. The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of the community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Government’s views in relation to community expectations are to be found in the Direction.[86]

    [86] Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.

1. This approach was confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.

2. Paragraph 6.2(1) of the Direction states 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. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.”

3. Those principles, set out in paragraph 6.3 of the Direction, are:

   (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community;

   (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;

   (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;

   (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa;

   (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age;

   (6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and

   (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizens Visa should be cancelled, or their visa application refused.

   Analysis – Allocation of Weight to this Primary Consideration C

4. Accordingly, in assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters:

   ·the Applicant moved to Australia when he was 32 years old. He is now 54 years old;

   ·the Applicant offended 13 years after moving to Australia;

   ·the Applicant’s offences are serious, and they include crimes of a violent and sexual nature against a woman. They are of a kind that any real risk of re-offending is unacceptable;

   ·the offences were not premeditated or predatory;

   ·Applicant has expressed extreme remorse, and he has demonstrated that by changing his lifestyle and not committing any further offences in the seven years since being released from gaol.;

   ·there is not a real, as opposed to a remote, risk that the Applicant will re-offend;

   ·apart from the one offending episode, the Applicant has been law-abiding;

   ·the Applicant is a devoted husband, father and grandfather, and active member of his church and the Tongan community in Brisbane;

   ·the Applicant claimed to have been employed in various jobs from 1999 to the date of the offending, and subsequently from 2018 until he went to Tonga. The positions he held largely involved manual labour and factory work.[87] His evidence was unchallenged, and I accept it. I also accept his son’s evidence that the Applicant sometimes worked overtime to help support his family. Therefore, the Applicant has a good history of holding gainful employment in Australia;

   ·prior to departing for Tonga, the Applicant volunteered in his church and in other church choirs, sharing his knowledge of traditional Tongan singing to keep that style of singing alive in Tongan culture in Australia. I accept that this is a significant contribution to a section of the Australian community and the Australian community is poorer without his contribution;

   ·the Applicant was not on a limited stay visa prior to departing Australia; and

   ·if he is not permitted to return to Australia, it will adversely affect his immediate family (addressed below under Other Considerations) including his grandchildren (addressed above under Primary Consideration B).

   Conclusion: Primary Consideration C

   [87] Exhibit G1 Section 501 G-documents, G2, page 161.

5. The Applicant breached the trust of the Australian community by committing serious offences. However, considering all relevant factors, I allocate only limited weight under this Primary Consideration in favour of exercising the power to refuse the Applicant’s visa.

   OTHER CONSIDERATIONS

6. It is necessary to look at the Other Considerations listed at paragraph 12 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).

   (a) International non-refoulement obligations

7. The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This Other Consideration is not relevant.  

   (b) Impact on family members

8. The Applicant has a wife, two adult sons, two adult daughters, three grandchildren, a sister, and some extended family in Australia.[88] His wife, children and grandchildren have the right to reside permanently in Australia. I have found that refusal to grant the Applicant a visa is against the best interests of his grandchildren to varying degrees. It is apparent that the Applicant is loved by his wife and children. His children regard him as a loving and supportive parent. They all appear to be well-adjusted, upstanding members of the community which is to the credit of the Applicant and his wife. The Applicant speaks with his family by phone every week.[89] The Applicant’s wife has visited the Applicant four times, and his elder daughter has visited once,[90] since he has been in Tonga.[91] I accept that the current pandemic currently precludes such travel.

   [88] Exhibit G1 Section 501 G-documents, G2, page 79.

   [89] Transcript, page 24, lines 15 to 22.

   [90] Transcript, page 25, lines 5 to 9.

   [91] Transcript, page 39, lines 44 to 46.

9. In representations made to the Respondent in 2019, the Applicant said that in his absence his wife was very stressed and struggling financially. Written evidence from her and their younger son corroborated this. She was able to visit Tonga because of financial assistance from her own family.  Since the pandemic the Applicant’s wife’s income support payment has increased so that she now has sufficient income and is able to occasionally send some money to the Applicant to support him. However, I accept that she is suffering emotionally and that her increased income support is temporary.      

10. At the time of the hearing, the Applicant’s younger daughter, Ms A, was in her final year of high school.[92] She will now have graduated. She is 18 years old. Ms A said she is closer to the Applicant than to her mother. She recalled the Applicant being the parent who pushed her to strive hard in school so that she would go to university and supported her in her sporting pursuits.[93] She plans to attend university in the coming year.[94] She communicates with the Applicant daily by telephone.[95] There is a letter before me from the guidance counsellor at her school.[96] The letter states that Ms A contributed positively to the school and represented the school in many sporting events but that she had reported to the counsellor that the absence of her father was having a significant impact on her well-being. The letter further stated that Ms A she was having difficulty focusing on classwork due to the grief associated with not having her father in the home. The uncertainty surrounding her father’s return was causing Ms A considerable stress. Ms A gave evidence at the hearing. She was not aware of exactly what the Applicant had done to end up in gaol. It appeared that her parents had shielded her from that information. This seems very reasonable given her age and the fact that she was still at school, but it must have made it hard for her to fully understand why the Applicant was not allowed to return to Australia. I accept that the Applicant’s absence has left a large gap in Ms A’s life and is causing her emotional hardship despite the fact that they are in frequent telephone contact. The Applicant’s continued absence will continue to adversely impact Ms A.    

    [92] Transcript, line 26 and page 17, line 6.

    [93] Transcript, page 49, line 36 to page 50, line 5.

    [94] Transcript, page 51, line 29.

    [95] Transcript, page 51, lines 31 to 32

    [96] Exhibit G1, Section 501 G-documents, G2, page 126.

11. The Applicant’s older daughter, Ms E, is 28 years old. Ms E described the Applicant as the backbone of the family and in particular referred to his support following the premature birth of her son which was immediately followed by her having open heart surgery. She said her mother was away overseas during that time and the Applicant was “right there beside my hospital bed” telling her “Everything is going to be okay”.[97] She said her son was in the Newborn and Infant Critical Care Unit for a month and that the Applicant visited every day for that month. After being released from hospital Ms E was unable to carry her baby because of the surgery. The Applicant would stay up late at night and in the early hours of the morning, making Child D’s bottles and putting him to sleep. Ms E said she dearly misses the Applicant.[98] Ms E will be on blood thinners for the rest of her life.[99]She and Child D live with the Applicant’s wife and she relies on the Applicant’s wife to help care for Child D.[100] I am satisfied that Ms E has a close emotional bond with the Applicant and misses the Applicant’s emotional and practical support.    

    [97] Exhibit G1, Section 501 G-documents, G2, page 137

    [98]  Ibid, G2, page 137

    [99]  Transcript, page 59, lines 14 to 18.

    [100] Exhibit G1, Section 501 G-documents, G2, page 141.

12. The Applicant’s elder son, Mr F, is married and works full-time.  He described the Applicant in very positive terms including that he is a good father and hard-working. He said he misses the Applicant’s counsel when he has personal problems. The Applicant’s absences caused him stress and an inability to focus on his family.[101] Mr F’s wife provided a letter of support of the same date,[102] describing the Applicant as a father figure whom she misses. She said her husband has been stressed out and quiet due to his father’s absence.

    [101] Ibid, G2, page 134.

    [102] Ibid, G2, page 145.

13. The Applicant’s younger son said he was heartbroken to see how the Applicant’s absence has affected his son, Child S. He said the Applicant had helped him and his family financially and taught them to love one another and live a happy life, putting God first in everything. He said his family life would not be the same without the Applicant. He described himself as depressed “going through this hard moment without my father and seeing my unemploying (sic) mother struggling to provide for the family” while the Applicant was away (in a letter of support dated in 2019, before the pandemic and the increase to the Applicant’s wife’s income support).

14. The Applicant’s family do not currently need him for financial support as they are able to support themselves.[103] They currently send money to the Applicant to support him in Tonga however none claimed that it caused them financial hardship and there was evidence that indicated that the Applicant could survive with less financial support. That is, he has free accommodation with a relative and he contributes to the water and electricity costs when he is able to, he fishes and grows crops, and he could have undertaken some physically onerous work but he chose not to.

    [103] Transcript, page 25, lines 36 to 38.

15. There is not sufficient evidence with respect to the likely impact of visa refusal on other family members and relatives to take into consideration.

16. Overall, I am satisfied that the impact on the Applicant’s family members weighs heavily against exercising the power to refuse the Applicant’s visa.

    (c) Impact on victims

17. This Other Consideration (c) requires a decision-maker to assess the impact that the refusal to exercise the power to grant the Applicant’s visa would have on members of the Australian community including any of the Applicant’s victim(s) and the family members of the victim(s). The victim of the Applicant’s offending is no longer in Australia.[104] This Other Consideration (c), is therefore neutral.

    [104] Transcript, page 38, line 5.

    (d) Impact on Australian business interests

18. The Applicant does not claim that the refusal to exercise the power to grant the Applicant’s visa would significantly compromise the delivery of a major project or delivery of an important service in Australia. This consideration is not relevant to the determination of this application.

    Findings: Other Considerations

19. The application of the Other Considerations in the present matter can be summarised as follows:

    (a)International non-refoulement obligations; not relevant;

    (b)Impact on family members; weighs heavily in favour of the Applicant;

    (c)Impact on victims; neutral;

    (d)Impact on Australian business interests: not relevant.

    CONCLUSION

20. I am now required to weigh all of the Considerations in accordance with the Direction.  

21. In considering whether the discretion to refuse the Applicants visa should be exercised I find as follows:

    ·Primary Consideration A weighs in favour of visa refusal but not to a significant degree.

    ·Primary Consideration B weighs significantly against visa refusal.

    ·Primary Consideration C weighs to a limited extent in favour of visa refusal.

    ·Other Consideration (b) weighs heavily against visa refusal.

22. This matter is finely balanced, involving serious offending by a person with an otherwise unblemished history, strong family ties in the Australian community, a solid history of contribution to the community through gainful employment and voluntary work, and who poses only a remote risk of re-offending. On balance, application of the Direction weighs in favour of the Applicant.

23. Consequently, I decline to exercise the discretion to refuse the Applicant’s visa application under section 501(1) of the Act.

    DECISION

24. The decision under review is set aside and substituted so that The Tribunal declines to exercise the discretion to refuse the Applicant’s visa application under section 501(1) of the Migration Act 1958 (Cth).

I certify that the preceding 121 (one hundred and twenty-one) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

..........................[SGD]..............................................

Associate

Dated: 21 January 2021

Date of hearing:

9 and 10 July 2020

Solicitor for the Applicant:

Ms Jennifer Samuta

Samuta McComber Lawyers

Solicitor for the Respondent

Ms Jiadi Liang

Clayton Utz

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (pages 1-258)	R	-	12 MAR 20
R1	Respondent’s Statement of Facts, Issues and Contentions (pages 1-19) and annexure ·    Annexure A - Summons material from Queensland Police Service (pages 1-74)	R	15 MAY 20	15 MAY 20
A1	Applicant’s Statement of Facts, Issues and Contentions (pages 1-12)	A	1 MAY 20	1 MAY 20
A2	Statement of the Applicant (6 pages)	A	1 MAY 20	1 MAY 20
A3	Letter of Support of Pastor Kelepi Nuku Piukala (2 pages)	A	4 MAY 20	8 JUN 20
A4	Applicant’s Tongan Police Clearance	A	21 APR 20	8 JUL 20

ANNEXURE A – EXHIBIT LIST