FPJF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 4045

FPJF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4045 (24 November 2022)
Division:GENERAL DIVISION
File Number(s): 2022/7232
Re:FPJF
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member G Lazanas
Date:24 November 2022
Place:Sydney

The reviewable decision is set aside and substituted with a decision to revoke the decision to cancel the Applicant's visa under subsection 501CA(4) of the Migration Act 1958 (Cth).
...........................[SGD].....................................
Senior Member G Lazanas
Catchwords
MIGRATION – mandatory visa cancellation – Applicant does not pass the character test – whether there is another reason why the visa cancellation should be revoked – consideration of Ministerial Direction No. 90 – nature and serious of offending conduct – sexual offences – risk of re-offending – protection of the Australian community – expectations of the Australian community – the best interests of minor children – strength, nature and duration of ties to Australia – impediments to removal – decision under review set aside and substituted
Legislation
Migration Act 1958 (Cth) ss 501, 501CA
Cases
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115
FYBR v Minister for Home Affairs [2019] FCAFC 185
R v Nelson [2016] NSWCCA 130
Secondary Material
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member G Lazanas
24 November 2022
Introduction

The Applicant was born in the Netherlands in 1976 and is a citizen of that country. He first travelled to Australia with his parents and younger brother in 1981 when he was 5 years old. He has lived in Australia ever since for approximately 42 years.
In 1995, the Applicant was granted a Class BB Subclass 155 Five Year Resident Return Visa (visa).
In February 2019, the Applicant was convicted of four charges of have sexual intercourse with person >= 14 & < 16 years for which he was sentenced to four years imprisonment with a non-parole period of two years and six months.[1] The Applicant has previously been convicted of other offences and committed numerous traffic offences for which he did not receive any custodial sentence.
[1] In addition to these four convictions, four further offences of the same kind were taken into account at sentence under the Form 1 procedure.
On 8 April 2020, the Applicant was notified that his visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Act). The Applicant’s visa was cancelled on the basis that the Applicant had a substantial criminal record, as defined in s 501(7) of the Act, and by reason of his sentence being for 12 months or more.[2]
[2] G11.
On 6 January 2022, the Applicant was re-issued with a notice that his visa was mandatorily cancelled pursuant to s 501(3A) of the Act (the cancellation decision), as the first notice did not comply with certain requirements.
On 13 January 2022, the Applicant made representations seeking revocation of the cancellation decision. The request was made within the required 28-day period.[3]
[3] G8.
On 1 September 2022, a delegate of the Minister decided, under s 501CA(4), not to revoke the cancellation decision. The decision was hand delivered to the Applicant on the following day.[4]
[4] G3, G13/90.
On 5 September 2022, the Tribunal received the Applicant’s application for review of the delegate’s decision.[5] It is the delegate’s decision on 1 September 2022 which is the reviewable decision.
[5] G2.
This matter was heard by the Tribunal in November 2022 by videoconference. The Applicant appeared on his own from Villawood Immigration Detention Centre. He was self-represented and appeared without any supporting witnesses. Besides the G-Documents filed on behalf of the Minister (Exhibit 1), the Tribunal also received a tender bundle of documents filed on behalf of the Minister (Exhibit 2). The Applicant relied on a personal witness statement (Exhibit 3) and gave oral evidence.
For the reasons which follow, the reviewable decision will be set aside, and the cancellation decision will be revoked.
THE ISSUE
It is not in dispute that the Applicant has a “substantial criminal record” and, therefore, does not pass the character test set out in the Act. Consequently, the sole issue to be determined by the Tribunal is whether there is another reason why the cancellation should be revoked.
THE EVIDENCE
The evidence set out below is based on information contained in documents filed with the Tribunal including the G-Documents and oral evidence given by the Applicant at the hearing, in respect of which he was extensively cross-examined.
The Applicant’s personal and family history
The Applicant is a 46-year-old citizen of the Netherlands. He came to Australia with his parents and younger brother when he was about 5 years old. He stated that his family migrated to Australia for a better way of life. He has remained in Australia since that time and has only been overseas for two brief holidays to the Netherlands with his parents.
The Applicant stated that after he and his family arrived in Sydney, they moved to Tasmania where his father found employment as a truck driver. The family then moved to Victoria where his father got a job as a diesel mechanic.
When the Applicant was in primary school, he was diagnosed with attention deficit disorder (ADD) and attention deficit hyperactivity disorder (ADHD) and was prescribed Ritalin and later dexamphetamine. In around 2016, the Applicant recalls seeking specialist advice from a psychiatrist by the name of Dr Swift, who again prescribed Ritalin for him. The Applicant continued to take Ritalin until he was moved to Villawood Immigration Detention Centre. He stated that the doctors treating him in detention cut his dose, contrary to the advice he had received from Dr Swift, and that he has since been medicated with mirtazapine to assist him sleep. He also takes other medications for cholesterol, high blood pressure, reflux, and fluid retention. Additionally, he takes over the counter pain killers for lower back pain that he has experienced since a farm accident in about 1996. On occasions, he says he cannot physically walk due to the back pain.
The Applicant said that before going to gaol, he did not have any angry episodes particularly when he was taking the Ritalin dosage as prescribed by his treating psychiatrist. However, if he forgot to take his medication, he became irritable and was prone to arguments. He gave an example of one occasion where he had not taken Ritalin when “he was prepared to snap someone’s head off” and had an argument with a customer. He said the incident involved him being unable to make a delivery of a load of fertiliser due to difficult driving circumstances. He said he realised his problem was due to not taking his medication and he was very apologetic to the customer and asked the supplier who had contracted him to give him another chance, which he did. I consider that this example provided by the Applicant in oral evidence demonstrated his preparedness to earnestly tell the Tribunal about his problems. It also demonstrated his self-awareness.
The Applicant had a dysfunctional childhood. He described himself as “the black sheep in the family” and recalls having been physically and mentally abused by his father. The Applicant recalled one situation where he swore at his local scout club leader and his father “threw him across the room”, as a form of punishment. The Applicant said he would regularly “cop floggings” from his father. The Applicant’s relationship with his mother, when growing up, was also fraught as he and his mother had arguments all the time, “mostly over stupid stuff”.
In or around 1985, the family moved back to Tasmania where the Applicant’s father was employed as a truck driver and diesel mechanic. The Applicant went to a High School in Tasmania until 1990. He said he was bullied and teased during this time. He later went to school at a Specialised School on account of him having learning difficulties. He said he particularly struggled with basic maths and spelling and finished schooling in 1993 equivalent to about Year 10 level when he was about 16 years old. The Applicant said he was not certain but thought that his learning difficulties throughout his life may be due to his ADHD.
In or around 1990, the Applicant’s family bought a block of land approximately 5 acres which he helped build from the ground up. He said he enjoyed the farm life even though he was still getting yelled at and abused by his father whenever he did anything wrong or when his father got angry. The Applicant said he could no longer take the physical and verbal abuse and left home at the age of 16 and lived in a shelter with other boys until he was 17 years old. He was unemployed and got by on a disability support pension.
The Applicant then moved to Melbourne to live and work with his uncle and aunt who owned a business. The Applicant said they too verbally abused him and belittled him. He eventually left and went to regional Victoria to live and make a life for himself. Initially, he had various odd jobs and “had a rough time”, but then found steady employment at an orchard business. His tasks included loading and unloading fruit into crates and slashing, spraying and other work in the orchards. The Applicant stated that the owner of the orchard business, Mr O, was nice and that he treated him as part of his family even though they frequently had arguments. It was at the orchard business that the Applicant had a tractor accident injuring his back, and Mr O paid for all his medical bills. The Applicant stated that he remains in contact with Mr O and plans to initially live and work with him again if he is allowed to stay in Australia but that his long-term plan is to do long haul truck driving.
In or about 2000, the Applicant moved back to Tasmania to live with his mother and father again on a larger acreage farm. He also got a job driving log trucks as well as helping his father doing odd jobs, as his father was then working as a diesel mechanic repairing trucks. He recalled an incident around that time when he had been driving a truck carting timber that went out of control. The truck rolled over and he escaped just as the truck exploded into flames. After this period, the Applicant moved around a lot and had jobs as a truck driver for different transport companies. He stated that he lived in New South Wales, Victoria, and Tasmania and that he has worked most of his adult life as a truck driver.[6]
[6] Applicant’s statement [8] and [9].
In 2011, the Applicant married Ms A in regional New South Wales where he was living at the time. The Applicant is now separated from Ms A although not legally divorced. Initially, Ms A visited him frequently and supported him in gaol, notwithstanding their strained relationship and the sexual offences committed by him. However, she was unable to see him when she got a job in a different town in New South Wales and later when she moved to regional Victoria. Their last contact was in about July 2021. The Applicant stated that he does not think that he will be able to reconcile with his wife as she has since established a different life.
In February 2012, the Applicant’s father passed away from cancer. The Applicant described his father as his “rock and go to person” if he needed help or advice. The Applicant stated that even though his father abused him, he forgave him as he realised his father was trying to teach him how to do things properly. The Applicant was visibly emotional when speaking about his father and how they spent their last Christmas together in 2011 together with his uncle and aunt and his brother. He also stated that his father would have been disgusted with him committing the sexual offences, if he were alive.
After his father passed away, the Applicant turned to long hours of work, driving trucks around Australia as a coping mechanism. In 2017, the Applicant was involved in a double fatality accident when a car driven by an older person drove head on into his truck while he was stopped at traffic lights. The Applicant got out to render assistance, but the driver was already deceased, and the passenger also later died at the scene. The Applicant described the accident as having a traumatic impact on him and that his life went downhill from there as he became very antisocial and short tempered. At the hearing, he conceded that he should have asked for help or counselling at the time but thought he was “man enough” to handle it. His relationship with his wife also deteriorated after this time and he described how they became distant and were no longer intimate. The Applicant does not have any children with his current wife.
The Applicant’s younger brother is in the army and often travelling, most recently probably in or around Brisbane. While the Applicant had tried to contact him, he said his phone just rang out and suggested that this might be due to him being at a remote location. The last time he saw his brother was when his brother and his mother visited him in gaol during 2018, in the first year of his imprisonment.
More recently, the Applicant had telephoned his mother who is living in Tasmania, but he gleaned from his discussions that his mother was still disgusted with the offences he committed and wanted nothing to do with him. She also made it clear to the Applicant that she did not want him contacting any of her extended family in the Netherlands, including through social media, as she was ashamed of him. However, the Applicant suspected that his mother had probably already told his relatives in the Netherlands. The Applicant stated that an uncle in the Netherlands, who works as a prison warden there, had threatened to kill the Applicant because of what he had done and on account of his fear, the Applicant did not wish to contact any of his mother’s family even if he were sent to the Netherlands.
The Applicant’s children
The Applicant has had three children with different partners. His oldest child, Child A, would have been in her 20s, however, Child A was in an accident and passed away. He has a son, Child B, aged 19, and another son, Child C, aged 13. The Applicant has had minimal interactions with his children and with his former partners, except for Child C and Child C’s mother.
Child C is cared for by his mother who lives in Tasmania. The Applicant stated that she is on social welfare and in a new relationship. The Applicant last spent time with Child C when Child C was approximately 1 year old when he had visited Cradle Mountain in Tasmania and arranged to take Child C with him and his wife. The Applicant stated he has no formal parenting arrangement for and no personal contact with Child C. The Applicant said he has not been able to afford a lawyer to assist with restoring contact with Child C but that he wanted his son to be a part of his life. Before going to gaol, the Applicant said he would regularly speak to Child C by phone, but that Child C’s mother cut off contact when he went to gaol.
The Applicant stated that the last occasion when he liaised with Child C’s mother was in about September 2022. She had messaged him to find out when child support payments would be paid. The Applicant had explained that as he was not working, he could not pay child support. He told her that he would resume paying child support when he was able to work again.
The Applicant impressed me as an earnest and sincere witness. I also consider that he is vulnerable and has had a difficult and troubled upbringing. He had managed, however, to turn his life around having worked hard from the age of 18 doing long haul driving to support himself and his family, including three children, to varying degrees. His long hours of work and itinerant lifestyle took him away from home for long periods and affected his ability to maintain good relationships with his partners as well as his three children. However, significantly, the Applicant continued to contact his youngest child on a more regular basis, and to financially support him through child support payments before he went to gaol.
The Applicant’s offending and criminal history
It is convenient to start with the Applicant’s recent offences for which he was sentenced to imprisonment and then briefly canvass other offences.
The Applicant pleaded guilty to four charges of have sexual intercourse with a person of or over the age of 14 and under the age of 16. The maximum penalty for that offence is ten years' imprisonment and there is no standard non-parole period. In February 2019, the sentencing judge imposed an aggregate sentence consisting of a sentence of four years imprisonment, and a non-parole period of two years and six months, commencing in March 2018 when he was first incarcerated.
A set of agreed facts formed the basis of the sentencing and were, relevantly, as follows.
The four offences occurred over a one-month period between 23 January 2018 and 24 February 2018. The Applicant was 41 years of age at the time of the offences. The victim was 14 years of age at the time of the offences. The Applicant’s wife worked with the victim, and it was through this relationship that the Applicant met the victim. The Applicant and the victim knew each other for about a year and formed a friendship with the Applicant frequently attending where and when the victim was working.
On New Year's Eve in 2017, the Applicant and the victim began sending messages to each other via text, Messenger or Snapchat. The messages quickly advanced to sexual conversations. On a morning in late January 2018, the Applicant went to the victim's house. The victim's parents were at work. The Applicant and the victim went into the victim’s bedroom and started kissing and taking off each other's clothes. The victim had earlier told the Applicant that she was a virgin. The victim and the Applicant then engaged in oral sex followed by penile-vaginal intercourse. That was performed on the bed before moving to the shower. The victim performed oral sex on the Applicant again before they both dressed, and the Applicant went back to work.
The Applicant and the victim remained in contact, sending sexually explicit messages, photographs, and videos to each other of themselves. On three separate further occasions, all within four weeks and one day from the first sexual contact, the Applicant and the victim met again and had penile-vaginal intercourse, twice in the sleeper bunk of the Applicant’s truck which was parked at a rest stop, and once in the Applicant’s four-wheel drive which he parked in bushland at the back of his work depot.
On or about 24 February 2018, the victim's mother found a photograph of the Applicant and the victim and questioned her about it. The Applicant called the victim's phone – which was how he usually communicated with her – and her mother answered. What followed was a heated conversation between the victim's mother and the Applicant.
On 26 February 2018, the Applicant contacted the police to report an older male having sex with a 14-year-old girl. He admitted that he was the male. He admitted that he knew the victim was 14 years of age but said that the sex was consensual. On 28 February 2018, the victim participated in a record of interview with police. She made limited disclosures.
On 2 March 2018, the Applicant was arrested and participated in an electronically recorded interview with police. He made admissions but maintained that the victim consented. The victim was reinterviewed on 14 March 2018 and made further disclosures.
The sentencing judge, Judge Bozic SC of the District Court of New South Wales, relevantly stated “[a]n offence involving a sexual act with a person under the age of 16 is objectively serious.” His Honour set out the following propositions taken from the judgment of Basten JA in R vNelson [2016] NSWCCA 130 with respect to sexual offences involving children which were relevant to the offences:
1Over the past few years both the public and courts have become much more aware and knowledgeable about the effects of premature sexual activity by a child. A court is entitled to proceed on the basis that there is a substantial risk of emotional harm even in the absence of evidence.
2Lack of consent is not an element of the offence because a person of a young age is deemed unable to give informed consent to sexual intercourse. That is no doubt because they do not appreciate the nature and consequences of the activity.
3Courts should accept that even when activity is not opposed by the victim it can be damaging. As courts now understand, early sexual relationships by a child with an adult will often exploit and exacerbate a precarious sense of self-worth and self-respect and this may have lifelong consequences including, for the victim, an inability to form stable partnerships in adulthood and possible self-destructive behaviour.
4Given the matters to which I have just referred, while notwithstanding the victim's inability to consent, what is sometimes described as "willing participation," is relevant to an assessment of objective seriousness, see Wakeling [2016] NSWCCA 33 at [47]. It is nevertheless, in a case such as the present, of limited weight given the significant age difference between the victim and the offender and the inherently damaging nature of such a sexual relationship.”

His Honour then summarised the following factors which he considered in the sentencing:
·The age of the victim. She was 14 which is closer to the minimum range of 14 than the upper range of 16.
·The age discrepancy between [the Applicant] and the victim. The victim was 14, [the Applicant] was 28 years older, he was 41. That is a significant age difference.
·The relevant act in each offence was penile-vaginal intercourse.
·They were not spontaneous or opportunistic offences. There was an element of planning and a course of conduct engaged in.
·The offending did not stop because of any insight, reflection, or concern for the victim on the part of [the Applicant]. It stopped because the victim's mother found out about the relationship between [the Applicant] and the victim.
The judge also referred to the Applicant’s subjective circumstances which he accepted were ‘neutral’. This was because the Applicant was not entitled to receive the benefit of good character due to the context in which the offences occurred involving repeat offending and fostering a relationship with the victim. Significantly, the judge observed the Applicant “…does not have a criminal record in New South Wales. He has a very limited record consisting of an apparently minor conviction in 1995 and minor traffic convictions.”[7] His Honour referred to the Applicant as having an “otherwise good character”.[8]
[7] G7/31-32.
[8] G7/32.
The Applicant gave evidence at the sentencing hearing. The sentencing judge acknowledged that the Applicant:
·expressed his guilt and his shame at what happened;
·expressed the hope that he had not caused or inflicted psychological damage on the victim;
·regretted deeply what he did;
·said he is sorry for what occurred and that he did not understand the significance of his conduct which amounted to criminal conduct;
·said he rang the police and "dobbed myself in".[9]
[9] G7/32.
The judge also noted that the Applicant had stated that upon his release he wants to start a new life and re-establish his relationship with his wife.[10] As stated above, the Applicant volunteered at the Tribunal hearing that he does not consider that he will be able to re-establish his relationship with his wife as she has since moved on. I consider that the Applicant was earnest in informing the Tribunal about his changed circumstances and predicament, especially as this may weigh against him.
[10] G7/33.
The Applicant also stated that Australia is his home and that there is no-one and nothing for him in the Netherlands, as he has no friends or family that he can depend on there, no car, and no source of income. By contrast, he said he has work and accommodation waiting for him at Mr O’s orchard and that his best friend, Mr A, was also supportive of him. Mr A is referenced as the authorised contact person with his contact details in documentation submitted by the Applicant on or about 13 January 2022 to the Department of Home Affairs in relation to the Applicant’s request for revocation of the cancellation decision. The Applicant described Mr A’s relationship to him in that documentation as “best mate”.
The Applicant also expressed a willingness to engage in a sexual offending treatment program to manage his behaviour and reintegration in the community.
A Structured Case Note, prepared by the NSW Department of Corrective Services for the pre-sentence report, sets out that Community Corrections had requested advice in relation to the risk of the Applicant re-offending and treatment options.[11] A standard actuarial risk assessment was carried out with the report making clear that it was not a comprehensive risk assessment and indeed, no face-to-face interview was conducted. The assessment, using the ‘Static 99 actuarial tool’, placed the Applicant in an average risk category relative to other male sex offenders. There were various recommendations made should the Applicant receive a custodial sentence, including that he should be referred to psychology services in custody for a comprehensive assessment of his risk factors, and to determine his suitability for a custody-based sex offender treatment program. While the Applicant signed consent for referral to a Sex Offender Treatment Program on 13 February 2019, this had not been actioned as of 6 April 2020 and then it was noted that the various programs require a minimum of 24 months to complete.[12]
[11] TB/38.
[12] TB/44.
The judge took into account, in assessing his prospects of rehabilitation and the likelihood of further offending, that the Applicant did voluntarily confess his criminality. Relevantly, the judge also referred to his very limited criminal record, and the fact that upon his release, he is determined to move to a new location, re-establish his relationship with his wife and move on. The judge was reasonably satisfied that he does have prospects of rehabilitation. He assessed the Applicant’s prospects of further offending as “reasonably slight”. The judge further noted the recommendations in the Corrective Services document concerning community-based programs that are available upon his release and was satisfied that he will benefit from an extended period of supervision to assist his reintegration into the community and his rehabilitation after release.
As to earlier offences, in November 1995, the Applicant was convicted of two counts of intentionally or recklessly cause injury. That offending involved the Applicant kicking and punching his de facto partner at the time.[13] At the hearing before me, the Applicant stated that this occurred on one occasion and his actions were in self-defence, but he nevertheless agreed under cross-examination that he caused his partner bruising. The Applicant was sentenced to a community-based order for six months and ordered to undertake 100 hours of unpaid community work.[14] The Applicant was also involved in an argument with his partner in August 1996 which, although it involved no violence according to the police report, resulted in an application for an intervention order against him.[15]
[13] TB/2.
[14] G4/21.
[15] TB/10.
The Applicant committed 22 traffic offences between June 2002 and February 2018, including six speeding offences, and various other traffic infringements such as not stopping at red lights, not wearing a seat belt properly and exceeding a parking meter limit. Amongst the traffic infringements were also various log-book infringements associated with his failures to record particulars of change of activity to do with his truck driving work.[16]
[16] TB/18-24.
As stated above, the sentencing judge described the Applicant’s criminal record as “very limited consisting of an apparently minor conviction in 1995 and minor traffic convictions”.[17]
[17] G7/32.
The Applicant’s remorse
At the Tribunal hearing, the Applicant ultimately accepted that the offences were his responsibility. Although he appeared to suggest that he did not know the victim was 14 years of age at the time of the offences, the claim that the Applicant thought that the victim was older is expressly contradicted by the judge’s sentencing remarks and the police reports. The Applicant acknowledged this under cross-examination and there appeared to be an element of confusion on his part. In any event, he clearly expressed shame for his offending behaviour. He said that he had made a big mistake and that he regretted it every day of his life. He said he wanted a second chance to be a better person. He said it was out of character for him, and that he was ashamed. He said he realised when he was in gaol that what he did was wrong and vowed not to re-offend again and that he was willing to seek professional help and counselling for what he did. I accept that the Applicant was genuine in his contrition and that he was also sincere in his willingness to undertake appropriate programs.
The Applicant stated that he hoped that he would be able to eventually repair his relationship with his mother and brother as “life is too short” and he wants to be in their lives. He also wants to be a part of Child C’s life and accepted that he would continue to pay child support payments for him.
RELEVANT LEGISLATION AND POLICY
The character test
Pursuant to ss 501(3A)(a)(i) and (b) of the Act, the Minister must cancel a visa that has been granted to a person if, relevantly, the Minister is satisfied that the person does not pass the character test because they have a “substantial criminal record”, as defined under s 501(7)(c), and the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Power to revoke visa cancellation decision
When a visa is mandatorily cancelled pursuant to s 501(3A), the Minister must give the person concerned a written notice which sets out the original decision (that is, the mandatory cancellation) and particulars of the relevant information and must invite the person to make representations to the Minister about revocation of the original decision: s 501CA(3)(a) and (b).
Pursuant to s 501CA(4), the Minister may revoke the original decision if:
(a)the person has made representations in accordance with the invitation:
s 501CA(4)(a); and
(b)the Minister is satisfied that:
(i)the person passes the character test: s 501CA(4)(b)(i); or
(ii)there is another reason why the original decision should be revoked: s 501CA(4)(b)(ii).
The Tribunal has jurisdiction to review the decision to refuse to revoke the cancellation of the Applicant’s visa pursuant to s 500(1)(ba) of the Act.
Direction No. 90
A determination under s 501CA(4) must be carried out in accordance with any written directions given under s 499(1) of the Act: s 499(2A). The Minister has given written directions as to the exercise of the power to revoke a mandatory cancellation decision. The relevant direction is ‘Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (Direction 90), which commenced on 15 April 2021.
Paragraph 5.2 of Direction 90 provides that the principles set out therein (Principles) provide the framework within which decision-makers should approach the task of deciding whether to revoke a mandatory cancellation under s 501CA of the Act.
Informed by the Principles, the decision-maker must take into account the primary considerations in Part 2 of Direction 90 in deciding whether to revoke a mandatory cancellation of a non-citizen’s visa. The primary considerations are:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the best interests of minor children in Australia; and
(d)expectations of the Australian community.
The decision-maker must also take into account other considerations insofar as they are relevant. The considerations that are relevant to this matter are as follows:
(a)extent of impediments if removed; and
(b)links to the Australian community, including strength, nature and duration of ties to Australia.
Section 7 states that primary considerations should generally be given greater weight than other considerations.
is there another reason why the cancellation decision should be revoked?
I turn now to a consideration of the primary considerations followed by the other considerations relevant to the Applicant’s circumstances.
Primary Consideration 1: Protection of the Australian community
Paragraph 8.1 of Direction 90 requires decision-makers to 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. 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 the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of Direction 90 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.
PC1.1 Nature and seriousness of the Applicant’s conduct
Paragraph 8.1.1 of Direction 90 prescribes factors to which decision-makers must have regard in considering the nature and seriousness of a non-citizen’s criminal offending or other conduct. This includes a range of conduct that is viewed seriously and very seriously by the Australian Government and, relevantly, the frequency of the non-citizen’s offending and cumulative effect of repeated offending. I have previously set out the Applicant’s criminal record.
Having regard to the relevant factors in paragraph 8.1.1, I make the following findings about the nature and seriousness of the Applicant’s conduct:
·The Applicant has committed multiple sexual offences against a child. Conduct of this kind is viewed very seriously by the Australian Government.
·The Applicant has been sentenced to a term of imprisonment of four years for his sexual offending which of itself demonstrates the objective seriousness of the offences involved, even though four years is less than half of the maximum term of ten years.
·The conduct involving intentionally or recklessly cause injury offences against his former de facto partner constitutes family violence and is also viewed very seriously. This is corroborated by an initiative of the Commonwealth, state and territory governments in the Fourth Action Plan – National Plan to Reduce Violence against Women and their Children 2010-2022 lodged with the Tribunal on behalf of the Minister.[18] However, this conduct took place a long time ago in 1995, he received a community-based order for six months and 100 hours of unpaid community work, and such conduct has not been repeated. Against that background, this conduct should be considered less serious.
[18] TB/94-164.
Having regard to the above, I do not accept that the Applicant has frequently committed serious offences. The family violence related offences occurred in 1995 and the sexual offending in 2018, over twenty years apart. While he also has a record of traffic offences, including multiple speeding offences, these were mostly of a minor nature, as acknowledged by the sentencing judge. The Tribunal recognises that certain driving conduct may pose a risk to the Australian community, as broadly referenced in a 2022 report regarding road fatalities and in other information regarding road safety strategy provided on behalf of the Minister, but I consider the particular offending of the Applicant to be of a minor nature.[19]
[19] TB/87-93; TB/165-168.
The Minister’s representative also referred to the Applicant’s “aggressive conduct” in gaol, based on NSW Department of Corrective Services case notes including fighting with another inmate in May 2018 and a physical altercation in July 2018.[20] The report of the May 2018 incident suggests that another inmate had tried to choke the Applicant. I do not consider these incidents to demonstrate the Applicant’s inclination to violence and these incidents should be seen in the context of incarceration. There were other reports of the Applicant’s polite, well-behaved, and compliant demeanour.
[20] TB/55, 67.
The sentencing judge described each sexual offence as “a serious offence … within the middle range of offending of this kind.”[21] Further, the offending was aggravated as it involved an element of pre-planning and continuing contact with the victim and one of the offences occurred within the victim’s home.[22] The sentencing judge also had regard to the fact that the victim was closer to the minimum age of the offence and there was a significant age gap between the Applicant and the victim.
[21] G7/31.
[22] G7/31.
Significantly, the Applicant is guilty of serious sexual offences against a child. Clearly, this conduct must be regarded as very serious.
PC1.2 Risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of Direction 90 provides that in considering the need to protect the Australian community from harm, the decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm lessens as the seriousness of the potential harm increases. In assessing the risk posed by the non-citizen 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 available information and evidence on the risk of the non-citizen re-offending and evidence of rehabilitation achieved by the time of decision, with weight to be given to time spent in the community since the non-citizen’s most recent offending.
The nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct
The nature of the potential harm that may be caused if the Applicant were to re-offend by committing offences of a sexual nature against children or by committing domestic violence is very serious and is likely to involve significant physical, psychological harm to members of the Australian community, such that the Australian community would have little tolerance for any likelihood of re-offending and future harm.
The Applicant’s risk of re-offending was considered by the sentencing judge to be “reasonably slight”. Nevertheless, I accept there remains a risk which is unacceptable because the harm of such conduct, if repeated, is serious.
The likelihood of the Applicant engaging in further criminal or other serious conduct
Turning to the likelihood of the Applicant engaging in further criminal or other serious conduct, there remains an ongoing and unacceptable risk of the Applicant re-offending for these reasons:
(a)The sentencing judge was satisfied that the prospect of the Applicant re-offending was “reasonably slight”, but this assessment was on the basis that the Applicant would “re-establish his relationship with his wife and move on.” The sentencing remarks refer to a pre-sentence report where the Applicant was considered to be a “medium” risk of re-offending.[23] An assessment using the Static 99 actuarial tool also placed the Applicant at an average risk of further offending at the time of sentencing.[24] Upon his release on parole he was assessed as being a “medium-low” risk of re-offending and in the “average” range of committing further sexual offences.[25] The nature of the harm is so serious that any risk of re-offending in the future is unacceptable, such that an average or medium risk of harm should also be considered unacceptable, particularly where that assessment was based in part on protective factors, such as a relationship with his wife being present.[26]
(b)A number of custodial and community treatment programs were recommended for the Applicant.[27] He admitted to not completing any of these, ostensibly because the programs were not offered to him where he was imprisoned or had a long duration of two years.[28] In the course of his application for parole it was determined that the Applicant’s “status as an untreated sex offender would put the community at risk if he is released without undertaking any programs while in custody” and that he should only be released having completed the EQUIPS Foundation and Addictions program.[29]
[23] G7/33.
[24] G7/34; TB/36.
[25] TB/45.
[26] TB/34, 44, 57.
[27] TB/51-52.
[28] TB/82.
[29] TB/51-52.

I agree with the representations on behalf of the Minister that there remains an unacceptable risk that the Applicant may re-offend, potentially causing significant harm to members of the community. Considering both the nature and seriousness of the Applicant’s conduct to date and the risk to the Australian community should he commit further offences or engage in other serious conduct, I am satisfied on balance that the primary consideration of protection of the Australian community from criminal or other serious conduct weighs significantly against revocation of the cancellation decision.
Primary Consideration 2: Family violence engaged in by the Applicant
Paragraph 8.2(2) of Direction 90 states that this consideration is relevant where the non-citizen has been convicted of an offence that involves family violence and/or there is information or evidence from independent and authoritative sources indicating that the non-citizen has been involved in the perpetration of family violence.
Family violence is defined in paragraph 4(1) of Direction 90 as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. The definition does not provide an exhaustive list of the conduct that constitutes family violence and there is no definition of “a member of the person’s family” or “family” in Direction 90.
Whether a person falls within the expression “a member of the person’s family” for the purposes of the family violence consideration in Direction 90 is a matter of fact to be determined by the decision maker. The expression should not be narrowly construed and can extend to a person who is in an intimate relationship with the person: Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115 at [124].
The Applicant’s intentionally or recklessly cause injury offences in 1995 against his then de facto partner constitute family violence as she was a member of the Applicant’s family and the Applicant’s conduct involved him kicking and punching her. I agree with the submissions made on behalf of the Minister that the conduct must be considered in applying the factors in paragraph 8.2(3) of Direction 90 and make the following findings in relation to that conduct:
·The Applicant’s behaviour, while infrequent and a long time ago, was of a serious nature.
·The Applicant’s family violence involved the infliction of harm and fear upon his former de facto partner, as demonstrated by her later application for an intervention order.
·There is no evidence that the Applicant has undertaken rehabilitation directed to the issue of family violence.
I am satisfied that the primary consideration of family violence committed by the Applicant weighs against revocation of the cancellation decision. However, I place less weight on this consideration in view of the extended period that has passed and as this kind of offending behaviour has not been repeated.
Primary Consideration 3: Best interests of minor children in Australia
Paragraph 8.3(1) of Direction 90 provides that the decision-maker must make a determination about whether non-revocation under s 501CA is, or is not, in the best interests of any child affected by the decision (who is, or would be, under 18 years old at the time when the decision is expected to be made).
The Applicant has identified one minor child that would be affected by this decision, being his son, Child C. The Applicant admitted that the child’s mother did not allow him to have contact with his son after he was imprisoned. He last had physical contact with Child C over 10 years ago. However, I find that the Applicant genuinely wishes to be involved with his child’s upbringing and to re-instate meaningful contact when he can do so.
I accept that the child lives with his mother who fulfils the parental role. There is evidence that the child’s mother looks to the Applicant for some financial support with the child’s upbringing. Significantly, the Applicant is required to provide child support if he remains and works in Australia but there is no guarantee he would do so or be required to do so if he were to leave Australia.
While Child C currently has little or no contact with the Applicant, Child C and his mother may be more receptive to re-engagement with the Applicant during the balance of Child C’s minor years were the Applicant to remain in Australia and recommence paying child support. Any contact would also be better facilitated by the Applicant remaining in Australia as they may see each other in person and or talk in the same time zones.
I find that it would be in the best interests of Child C for the cancellation decision to be revoked. I give significant weight to this factor which weighs in favour of revocation of the cancellation decision.
Primary Consideration 4: Expectations of the Australian community
Paragraph 8.4(1) of Direction 90 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct and breached this expectation, or where there is an unacceptable risk that they will breach it, the Australian community expects as a norm that the Government will not allow such non-citizens to remain in Australia.
Paragraph 8.4(2) further provides that it may be appropriate not to revoke the mandatory visa cancellation of such a person simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not continue to hold a visa. The Australian community expects that the Australian Government can and should cancel a non-citizen’s visa if they raise serious character concerns through their conduct of the kind that includes acts of family violence or serious crimes committed against children and women, as is the case here.
In having regard to this consideration, paragraph 8.4(4) provides that the decision-maker should proceed on the basis of the Government’s views about the community’s expectations articulated above and must not independently assess the community’s expectations as they may pertain in a particular case: see FYBR v Minister for Home Affairs [2019] FCAFC 185. Therefore, the Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.
The Minister’s legal representative argued that observing the norm stipulated in paragraph 8.4(1), and in accordance with the guidance provided by Principles 5.2(2)-(5) of Direction 90, the Australian community would expect that the Applicant should not continue to hold a visa. This is especially so because this case specifically engages paragraph 8.4(2)(c) in that the Applicant has engaged in serious crime, in the form of sexual crimes, against children and a violent crime against a woman.
I am satisfied that the the Australian community would have a very low tolerance of the Applicant’s offending and would expect that the Applicant should not be allowed to remain in Australia. Accordingly, I find this consideration weighs heavily against revocation.
OTHER CONSIDERATIONS
I turn now to the other relevant considerations that I must also take into account in deciding whether to revoke the mandatory cancellation of the Applicant’s visa.
For completeness, I note there is no evidence before the Tribunal that the following other considerations are relevant:
(a)international non-refoulement obligations;
(b)the impact on victims; and
(c)the impact on Australian business interests.
Other Consideration 1: Extent of impediments if Applicant is removed from Australia
Paragraph 9.2 of Direction 90 requires consideration of 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: the person’s age and health; whether there are substantial language or cultural barriers; and any social, medical and/or economic support available to them in that country.
The Applicant is aged in his mid-40s and has reported diagnoses of depression, anxiety, ADHD, high blood pressure and back pain.[30] There is no evidence that the Applicant would not be able to access the same, or similar treatments for these conditions in the Netherlands. As a citizen of the Netherlands, he has the same access to social, medical, and economic support as other citizens.
[30] G9/56; Applicant’s statement at [5].
The Applicant has been employed consistently since 1998 as a farm labourer and in truck driver roles. The representative for the Minister submitted that there should not be any significant cultural or linguistic hurdles for him to overcome, despite his inability to speak or write in Dutch because publicly available information indicates that English is widely spoken in the Netherlands. However, the submissions did not grapple with the fact that the Applicant has had learning difficulties throughout his life, I accept that the Applicant attended specialised schooling and did not go beyond the equivalent of about Year 10. I also find that the Applicant is likely to face substantial language and or cultural barriers, given he does not understand Dutch and would likely experience difficulties at his age in learning Dutch, even though English may be widely understood in the Netherlands.
While the Applicant lived in the Netherlands for approximately four to five of his childhood years, I do not accept the submission put by the representative for the Minister that "the Netherlands cannot be said to be unfamiliar to [the Applicant]”. The Applicant has spent virtually the last 42 years in Australia having departed the Netherlands when he has about 5 years old and only visited the Netherlands for two fleeting holidays with his parents. While it emerged at the hearing that the Applicant has some extended family in the Netherlands, his connection to them does not appear to be meaningful and there was no suggestion that they would be willing to support him.
In my view, the Applicant will likely face some problems in re-establishing himself in the Netherlands due to his long-term residence in Australia. The impediments may not be insurmountable, but he nevertheless will likely find it difficult to adjust to the way of life over there especially as he has no accommodation nor income, and no family or friends to support him. I have also considered that he is in his late 40s, has had numerous failed relationships with partners and had three children and described himself as generally reserved and anti-social. It is possible he could not drive trucks for a living, at least in the foreseeable future, as he cannot understand Dutch which he said he had been advised is a requirement for a commercial licence. He also stated he has no familiarity with the roads in the Netherlands.
On balance, I am satisfied that the extent of impediments if the Applicant is removed from Australia weighs slightly in favour of revocation of the cancellation decision.
Other Consideration 2: The strength, nature and duration of ties to Australia
Paragraph 9.4.1 of Direction 90 requires the decision-maker to have regard to the strength, nature and duration of the non-citizen’s ties to Australia.
The Applicant arrived in Australia at the age of approximately 5. He has resided in Australia for over 40 years. He has immediate family members in the form of his mother, brother, wife – albeit from whom he is separated – and two children, one of them a minor, who reside in Australia and may have the right to do so indefinitely. He also has extended family in Australia who in the past have provided him work.
While the Applicant spoke about re-establishing his relationships with his family, in particular his mother and brother, the representative for the Minister observed that there was no evidence from the family members as to the impact the Applicant’s departure would likely have on them. On the contrary, the evidence suggested that the Applicant’s relationships with all family members except his youngest child are very strained.[31] I accept the Applicant’s evidence that his mother made it clear to him that she wanted nothing to do with him on account of his sexual offences. I also note that he has not had contact with his younger brother since 2018. The Applicant also has an aunt, uncle and a best friend who reside in Australia. None of them provided statements going to the impact of the Applicant’s visa cancellation on them. The Applicant explained at the hearing that his best friend, Mr A, had been impacted by the recent floods in regional Victoria and was unable to assist with providing a supporting statement at the relevant time but that their friendship was strong, and he could rely on his friend to help him reset his new life, which I accept.
[31] Applicant’s statement at [26]-[27]; TB/27, 62.
It was clear from the Applicant’s evidence that his family have kept him at a distance and have effectively ostracized him due to the nature of his offences. He appeared at the hearing without any family support or legal representation. However, the Applicant indicated his willingness to attempt to repair his relationships, especially with his mother and brother and to have a meaningful relationship with his children. In the circumstances, it is difficult to confirm whether there would be any negative consequences for his family, except possibly disappointment if he were to be removed from Australia, especially with respect to his youngest child, with whom the Applicant had frequent contact before his imprisonment.
As to other ties to Australia, the Applicant stated he used to help out at a Motor Sport Club. He also attended speedway meetings when living in Victoria driving up to 12 hours away, including to Eastern Creek in New South Wales. He did volunteer work helping move cars on the tracks and taking photos. He also had his own speed car but his dream of driving on the speedway, which he had been preparing for, disappeared when he went to gaol. The Minister’s legal representative accepted that the Applicant had made a positive contribution to the Australian community but downplayed any such contributions as minimal. I accept that was an accurate description in all the circumstances noting that the Applicant was working long hours and often away from home.
The Minister’s legal representative acknowledged this consideration weighs in the Applicant’s favour but contends that it does not outweigh the primary considerations which should weigh heavily against revocation. I disagree with that submission. On balance, I am satisfied that the strength, nature and especially the long duration of the Applicant’s ties with Australia, together with the other considerations to which I have referred, weigh in favour of revocation of the cancellation decision.
CONCLUSION
This has been a difficult case. The Applicant has pleaded guilty to very serious offences of sexual intercourse with a victim aged 14 years of age. The Applicant’s conduct, on his own admission, was disgusting and completely inexcusable. The Australian community rightly condemns such conduct.
The Applicant stated that he regretted that mistake every day of his life. As a result of his conduct, his family have ostracised him, and he has not been able to contact his child while in gaol. His family did not offer any support in these proceedings. He lost his employment. His relationship with his wife has broken down.
The Applicant served a term of imprisonment. The Applicant stated he now wants a second chance. It should be noted that the sentencing judge concluded the likelihood of the Applicant re-offending was “reasonably slight”.
I accept that the Applicant wants to reset his life and is genuinely remorseful. He wants to reconnect with his family and his children who live in Australia, the country he has lived in since the age of 5. I also accept that he has no meaningful relationships to support him in the Netherlands. In his own words, there is “nothing there” for him.
As stated above, the primary considerations of the protection of the Australian community, family violence and the expectations of the Australian community all weigh against revocation of the cancellation decision. However, these considerations are, on balance, outweighed by considerations in favour of revocation, including the primary consideration of the best interests of the Applicant’s child. This consideration coupled with the other considerations of the extent of the impediments the Applicant would face upon removal to the Netherlands and the strength, nature and duration of his ties to Australia cumulatively weigh, ever so slightly, in favour of revocation of the cancellation decision.
Accordingly, I decide to set aside the decision under review and substitute it with a decision to revoke the decision to cancel the Applicant’s Class BB Subclass 155 Five Year Resident Return Visa.

I certify that the preceding 111 (one hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of Senior Member G Lazanas

...........................[SGD].............................
Associate
Dated: 24 November 2022

Date of hearing: 9 November 2022

Solicitor for the Applicant:
Self-represented

Solicitor for the Respondent: Mr C West, Sparke Helmore

Date of hearing:	9 November 2022
Solicitor for the Applicant:	Self-represented
Solicitor for the Respondent:	Mr C West, Sparke Helmore