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

FVKL and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2880 (14 August 2023)
Division:GENERAL DIVISION
File Number(s): 2023/3800
Re:FVKL
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Dr N A Manetta
Date:14 August 2023
Date of written reasons: 11 September 2023
Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the applicant’s application for a Protection (Class XA) visa not be refused under section 501(1) of the Migration Act 1958 (Cth).
..............[sgnd]..........................................................
Senior Member Dr N A Manetta
CATCHWORDS
MIGRATION – refusal of protection visa under section 501(1) – Direction 99 – serious sexual crimes – trend of increasing seriousness – medium risk of reoffending – strength, nature and duration of ties to Australia – interests of minor child in Australia and of former partner in receiving support – bests interests of child weigh significantly in applicant’s favour – expectations of Australian community weigh against applicant – ongoing detention and deprivation of liberty – applicant cannot be compulsorily removed to country of origin – low likelihood that applicant will be removed to a third country – prospect of indefinite detention weighs substantially in applicant’s favour – decision under review set aside
LEGISLATION
Migration Act, 1958 (Cth)
CASES
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
FYVY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 790
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; (2021) 285 FCR 463
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)
REASONS FOR DECISION
Senior Member Dr N A Manetta
11 September 2023

After I delivered my decision with oral reasons, I received a request for written reasons, which I now publish.[1] These are the reasons I read out to the parties with minor amendments.
[1] These written reasons contain certain standard paragraphs, particularly, [4] and [22].
This is an application by “FVKL”, a person whose name is subject to a confidentiality requirement and to whom I shall refer in these reasons as “the applicant”. The applicant seeks a review in this Tribunal of a decision of the respondent’s delegate dated 22 May 2023.[2] By this decision, the respondent declined the applicant’s application for a protection visa under section 501(1) of the Migration Act 1958 (Cth) (“the Act”). The delegate first found that the applicant did not satisfy the so-called “character test” as defined in section 501 and that the discretion in subsection (1) was, accordingly, enlivened. The delegate then weighed the matters required to be weighed by Direction no. 99[3] issued under section 499 of the Act. Having weighed these matters, the delegate exercised his or her discretion to refuse the application for the protection visa.
[2] Ex R1, 8ff.
[3] Minister for Immigration Citizenship and Multicultural Affairs (Cth), Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023).
TRIBUNAL’S TASK
Hearing the matter afresh on the evidence adduced before me, I must address the same two questions. I must be satisfied that the jurisdictional threshold in section 501(1) is enlivened; and, if the threshold is enlivened, I must then address the exercise of the statutory discretion after taking into account and weighing the various considerations under Direction no. 99.
There was no dispute before me that the applicant did not pass the character test given his offending history. That is clearly so,[4] and so the only live question before me concerned the second question; namely, the exercise of the discretion. In proceedings like this, the Tribunal conducts a full hearing on the merits, reaching the correct or preferable decision on the evidence before it.[5] It hears oral evidence and submissions, receives written documents and written submissions, makes findings of fact, and draws its own conclusions. The Tribunal does not merely review the delegate’s decision for error. This manner of proceeding implies that I may affirm the decision under review, notwithstanding the presence of an error in the delegate’s reasons, if that is the correct or preferable decision on the evidence before me. Equally, I may set aside the decision under review, notwithstanding the absence of any discernible error in the delegate’s reasons, if that is the correct or preferable decision on the evidence.
[4] See section 501(6)(a) of the Act.
[5] See, for example, Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [98] and [141].
At the hearing before me, Ms Jackson appeared for the applicant; Mr Brown, for the respondent. I acknowledge their assistance to me. I particularly note Mr Brown’s very fair presentation of his client’s case, which well reflected the respondent’s model-litigant obligations.
STATEMENT OF CONCLUSION
I have decided to set aside the decision under review and to substitute a decision that the applicant’s application for a protection visa not be refused under section 501(1) of the Act. I now set out the background facts and the reasons for my conclusion.
BACKGROUND FACTS
The applicant is a citizen of Burundi and is of Twa ethnicity. He was born in Burundi in February 1986. It appears that when the applicant was still a child, he and his family fled the war in Burundi and then then lived in a Tanzanian refugee camp for some ten years. The applicant arrived in Australia (with his sister) in 2007 (aged 21) as the holder of a Refugee and Humanitarian (XB-200) visa.
After arriving in Australia, the applicant undertook English classes and then attended a private college in Adelaide in 2009, where he struggled to make significant progress in his studies. A psychological assessment from that year revealed the applicant was functioning in the bottom one percent of the population, and I note that situation had not altered as at the time of his sentencing in 2016.[6] I accept that this level of functioning translates to a mild intellectual disability but not a serious one.[7] The applicant has had some limited work experience in the Australian community but has also been in receipt of a disability support pension.
[6] Ex R1, 34.
[7] Ex R2, 309.
The applicant formed an intimate relationship with a person to whom I shall refer as “Ms W”. He had a child with Ms W. Ms W gave evidence before the Tribunal. Their child, “J”, is now eight years of age as I understand the evidence. The applicant was not aware of J’s birth until after his arrest on very serious charges I shall describe in due course.
The applicant has been involved in less serious incidents of offending.[8] The first was dealt with in the Adelaide Magistrates Court in 2012 and involved driving a car with an excess blood alcohol. The applicant was convicted; a fine of $900 was imposed; and the applicant received a disqualification that ended that same day. Some two years later, the applicant was convicted of a number of offences. These involved disorderly behaviour; driving a car the wrong way down a one-way street; stopping in an intersection; and failing to comply with breath-analysis directions. The offending apparently stemmed from drunken behaviour at the wheel of a motor vehicle. The applicant was convicted and received a fine of $2000. He was disqualified for driving for two years and seven months. Later that year (viz, on 29 October 2014) the applicant was convicted of driving while disqualified. He was convicted and placed on a good-behaviour bond for 18 months.
[8] Ex R1, 30-31.
While he was still on this bond, the applicant committed very serious criminal offences. In September 2015, or thereabouts, the applicant, who was then almost 30 years of age, engaged in sexual intercourse with a minor (namely, a girl who was only 14 years of age) at least five times, and perhaps as many as ten times, on separate occasions over about a month. This was the first part of his offending that was charged as “the persistent sexual exploitation of a child”. The applicant was released on police bail on 26 October 2015, the same day of his arrest. It was a condition of the applicant’s bail agreement that he not have any contact with his victim, a limitation which was further reflected in an order from Families SA[9] to the same effect (as the victim was a ward of the state).
[9] South Australia’s child protection agency.
On 7 April 2016, the applicant pleaded guilty to the offence of persistent sexual exploitation of a child in the Adelaide Magistrates Court. In May 2016, while the applicant was still on bail and awaiting, I assume, his sentencing in the District Court (a higher court), he committed two further counts of unlawful sexual intercourse with the same victim. He also harboured her at his home while she was absent from state care. Indeed, when the police called at his home, he helped his victim hide from police.
I note further that as a result of this offending, the applicant breached his good-behaviour bond and had also breached his bail agreement and the order from Families SA. These factors made his offending more serious.
The District Court, whose remarks were before me,[10] sentenced the applicant as follows. A number of offences were dealt with by the Court. For the crime of persistent sexual exploitation of a child, the applicant was imprisoned for a period of five years, which was reduced to three-and-a-half years after a guilty-plea discount of 30 per cent was applied. For breach of the bond, a further 14 days was to be served in jail by the applicant cumulatively (that is, not concurrently with the earlier sentence). The further counts of sexual intercourse, the charge of harbouring a child unlawfully absent from state care, and the failure to comply with the bail agreement were sentenced separately. The offences received an aggregate sentence of two-and-a-half years. With the 30-percent discount, the sentence was reduced to 21 months.
[10] Ex R1, 32-36.
In total, therefore, the applicant received sentences totalling five years, three months and 14 days. No additional reduction was made on account of the applicant’s intellectual disability. It would appear that the Court took into account (in his favour) the applicant’s past difficulties in Burundi and Tanzania;[11] but I do not procced on the basis that these were taken by the Court to explain or mitigate the offending. There is no expert evidence before me suggesting that link. If the applicant had not experienced a very difficult life in Burundi and Tanzania, one assumes the total sentence may have been even longer.
[11] Ibid, 35.
The Court fixed a non-parole period of two-and-a-half years. The sentence was taken to have begun on 5 June 2016, the date on which the applicant was taken into custody.[12]
[12] Ibid.
The applicant was interviewed by the Parole Board of SA on 29 June 2021,[13] a date that was close to the end of the head sentence. The Board resolved to release him on 29 July 2021, just one-and-a-half months before the end of his head sentence on 18 September 2021. Records show that he was transferred to the Adelaide Remand Centre from Mt Gambier Prison on 28 July 2021 with a view to his being detained by the Australian Border Force.[14]
[13] Ex R2, 239ff.
[14] Ibid, 317.
It would appear the applicant was then transferred immediately into immigration detention as his humanitarian visa had been earlier cancelled on 14 December 2017 as a result of his criminal offending.[15]
[15] Ex R1, 161.
The applicant has been in immigration detention since July 2021, which is some two years ago as at the date of my decision today. The applicant applied for a protection visa on 23 August 2021. The applicant had claimed in a formal interview that his parents were killed during the civil war in Burundi and that he had fled to a refugee camp in Tanzania with his neighbours.[16] This information was accepted to be false by the applicant in his evidence before me: his parents are still alive. On 21 December 2021, a delegate of the Minister found that the applicant was a person who engaged Australia’s international non-refoulement obligations. The assessment report was before me,[17] and I note that the respondent does not resile from the conclusion in that report notwithstanding the lie that was told by the applicant. I accept the respondent’s position in this regard.
[16] Ibid.
[17] Ibid, 160ff.
A period of some 13 months elapsed before a notice was issued by the respondent dated 20 January 2023 notifying the applicant that refusal of his protection-visa application was under consideration.[18] It is not clear to me why such a lengthy interval needed to pass before that notice was given since the applicant’s criminal record was readily available; and, indeed, his offending must have been well known as it had led to the cancellation of his humanitarian visa.
[18] Ibid, 68ff.
The applicant provided his submissions in answer to the notice on 31 March 2023. On 22 May 2023, the respondent’s delegate refused the application for a protection visa under section 501(1) of the Act.[19] The applicant then filed an application in this Tribunal seeking a review of that decision.
[19] Ibid, 8.
REASONS
The delegate applied Ministerial Direction no. 99[20] (“the Direction”) issued under section 499 of the Act. I must do the same. I now turn to the Direction. In FYVY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 790, I made certain prefatory remarks, which I repeat:
30 The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
31 Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in paragraphs numbered (1) to (6). I set out some of the salient features of these principles.
32 First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. The level of tolerance will rise with the length of time non-citizens have spent in the Australian community, particularly in their formative years. Fifthly, the nature of the non-citizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence and other types of specified conduct is so serious that even strong countervailing considerations may be insufficient, and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.
33 Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that paragraph 7(1) directs me to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) also directs me to give greater weight “generally” to primary considerations over other considerations.
[20] Supra fn 3.
I turn now to consider the primary considerations I am required to weigh. The first of these is the protection of the community from criminal or other serious conduct. When considering the protection of the Australian community, I am required, by paragraph 8.1(1), to bear in mind that the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. I am to have particular regard to the principle that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community. I bear this principle in mind.
Under paragraph 8.1 (2) decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should that person commit further offences or engage in other serious conduct. Paragraph 8.1.1 governs the nature and seriousness of the non-citizen’s conduct to date. Subparagraph (1) provides that I should have regard to a number of matters specified in subparagraphs (a) to (h) when considering the nature and seriousness of the applicant’s criminal offending (or other conduct) to date. Subparagraph (a) requires me to consider sexual crimes as very serious crimes. The crimes committed by the applicant in this case involved sexual crimes on a prolonged basis against a child.
At this point I should note that so far as the applicant’s other offending is concerned, whilst it is not to be discounted or ignored, I have decided that it does not represent “a tipping point” in my deliberations; and, accordingly, in these reasons I need not deal with it further. I note that I have considered the offending and taken it into account, but it does not represent offending that would cause me to change my decision.
Subparagraph (c) requires me to have regard to the sentence imposed by the District Court for the applicant’s most serious offending. The individual sentences were long and the aggregate head sentence of over five years was very serious. It reflected the Court’s grave view of the applicant’s offending considered as a whole.
I must have regard to the frequency of the offending: see subparagraph (d) The offending consisted of multiple acts of sexual intercourse over a considerable period of time. That is a very serious matter because the offending did not simply consist of one act where the applicant immediately repented of his misuse of the child; but rather consisted of repeated decisions to associate with the child for the purpose of unlawful sexual intercourse. He maintained contact with her by phone and they exchanged intimate messages. That prolonged abuse is a most serious matter. In my opinion, there is clearly a trend of increasing seriousness in the mere fact that the behaviour occurred more than once; but I also note that the Court referred explicitly to the fact that the offending escalated to further acts of sexual intercourse (two acts) while the applicant was on bail for the same offending and in plain defiance of his bail conditions and of the Families SA order to which I have already referred. That is a highly serious matter because the applicant has shown himself willing to exploit children despite his assurances that he would not do so.

In cases of the sexual exploitation of children ‒ and within this category, wards of the state are especially vulnerable ‒ there is undoubtedly a cumulative effect of repeated offending: see subparagraph (e). As the sentencing Court made clear, the applicant took full advantage of the ward’s childish and immature interest in him as a male of nearly 30 (twice her age) and did so in order to gratify himself at her expense.[21]
[21] Ex R1, 33.
I am also required to take into account the fact that the applicant provided misleading information to the Department in respect of the death of his parents[22]: see subparagraph (f). That information was false. I note also that the same lie appears in the sentencing remarks.[23]
[22] See supra, paragraph [19].
[23] Ex R1, 34.
I do note explicitly that the evidence before me does not support a view that the applicant’s intellectual disability, which is referred to in the sentencing remarks, diminished the applicant’s capacity to make appropriate choices. Looking at the offending in totality, one notes that the victim in question was, according to the sentencing court,[24] clearly younger than 17 ‒ the court had photos of the victim before it ‒ and from that I infer that the applicant was well aware at all times that she was not of an age to consent. Moreover, his earlier offending is coloured, in my opinion, by his subsequent offending. It was brazen, and quite vicious, for the applicant to resume sexual relations with the victim since he understood full well at that point her particularly vulnerable status as a ward of the state and her young age. It is implausible to suppose that this applicant entertained at any time any genuine concerns for the welfare of his victim, whom he used for sexual gratification. I do not regard any drug- or alcohol-misuse issues as being of particular relevance to the offending. The offending occurred on multiple occasions; and certainly after the first occasion of sexual intercourse, it became premeditated and planned.
[24] Ibid, 32.
All in all, offending of this type is extremely serious.
I must have regard to the risk to the Australian community should the applicant commit further offences or engage in other serious conduct: see paragraph 8.1.2 of the Direction. Once again, I do not propose to canvass in these reasons the earlier offending that appears in the criminal record for the reasons earlier explained. I bear in mind what appears in paragraph 8.1.2(1) of the Direction. I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. I note that some conduct and the harm that would be caused if it were to be repeated may be so serious that any risk of repetition may be unacceptable.
Under subparagraph (2) of paragraph 8.1.2, I am to have regard to certain matters “cumulatively” when assessing the risk posed by the applicant to the Australian community. The first matter is the nature of harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct. In my opinion, the harm to the Australian community posed by a person who exploits a child sexually for his own gratification is extremely serious. A child’s psychology can be ruined when he or she eventually comes to appreciate the harm to which he or she has been exposed and how he or she has been used as no more than an object of gratification. The sexual abuse of a minor is always reprehensible and the abuse of a 14-year old poses a special risk to the community, precisely because of the child’s youth and vulnerability to predatory men. I regard the nature of harm to individuals and the Australian community under subparagraph (2)(a) as extremely serious.
I must take into account the likelihood of the applicant engaging in this type of conduct again: see paragraph 8.1.2(2)(b).
In my opinion, there are a number of matters to be borne in mind in this regard. First, the applicant has not displayed, in my opinion, genuine remorse for his victim. I make allowance for the applicant’s mild intellectual disability; but in his evidence to the Tribunal, there was a marked lack of appreciation of his moral culpability and of the harm he had inflicted. Part of that evidence sought, in effect, to dispute, or qualify substantially, the sentencing Court’s findings. This included evidence that he was unsure of the girl’s age when he first met her (when the photos before the sentencing Court clearly showed she was under the age of consent and when he decided to have sexual intercourse with her again after there could be no doubt at all in his mind as to her age).
In his evidence, the applicant sought to blame the victim when she presented herself at his house while he was on bail and excused his sexual intercourse with her on that occasion. Despite admitting her to the house, he gave evidence that she was the initiator of the sexual conduct that occurred on that occasion. None of this evidence did the applicant any credit. The evidence does not show that the applicant has a proper appreciation of the moral wrongfulness of his conduct. No right-thinking person looking back, as the applicant is now looking back at the age of 37, could doubt that his sexual conduct at the age of 29 towards a girl of 14 who was also a ward of the state was anything but reprehensible and exploitative.
In another sense, however, the applicant did appreciate how difficult his situation has become. He served almost the entirety of the aggregate sentence of over five years in jail. On parole towards the end of his sentence, the applicant was taken into detention and has remained in detention for some two years now. His application for a protection visa was a genuine one in that he has been found to be owed protection obligations. He has spent, therefore, over seven years in one or other form of custody which has involved him in a very substantial and prolonged loss of liberty. He lost the chance to develop a relationship with his then newborn child from the outset. I do not doubt that the applicant regrets sincerely that he engaged in the abuse of his victim given the very serious consequences for his own liberty that his conduct has entailed. I do not doubt either that the effect of jail and immigration detention has been salutary. They offer him a very serious deterrent in respect of his future conduct. He will understand that future misconduct of the type in which he engaged in the past will only lead to a longer jail sentence and further detention. He could hardly expect that if he were to betray that trust by re-engaging in offensive conduct, he would be re-admitted to the Australian community. His options then would be to return to Burundi voluntarily or to remain in immigration detention on an extended basis. This is, as I have said, a powerful deterrent, and I do not believe it is lost on this applicant.
Although the applicant has engaged in some courses concerning his offending, he did not display in his evidence appropriate insight into his offending, as I have made clear. I do accept that there will be something of a protective environment for the applicant were he to be released to the Australian community. I refer here to his proposed accommodation with his friend, to whom I shall refer as “Ms H”. She will provide an appropriate home environment that will undoubtedly be orderly and conducive to sobriety and a regular life. But it is clear to me that Ms H is either unable or unwilling to accept the fact of the applicant’s serious offending. Her home, I note, was deemed an unsuitable residence by the Parole Board because she maintained that the applicant was the victim of a predatory 14-year-old ward of the state rather than the other way round. In a written statement before the Tribunal, Ms H retracted those remarks,[25] but unfortunately her oral evidence before me betrayed the same deficit in thinking. At one point in her evidence, she referred to the victim (whom she had met in the applicant’s company) as a “silly thing” (or words to that effect) and emphasised to the Tribunal how popular the applicant had been at his private college with the teenage final-year girls, and how all the residents of a nursing home where the applicant worked had “loved him”. There is a lack of balance in this evidence. Ms H still refuses, I believe, to accept that the applicant sexually exploited a 14-year-old girl for his own gratification, after he met her in a supermarket complex and took her to his house with that purpose in mind. That is the plain fact of the matter, and Ms H did not demonstrate a balanced appreciation of those serious deficits in the applicant’s character whatever other merits he might have.
[25] Ex A1, 35 [20].
Ms H has shown a keen interest in the applicant’s personal development in keeping with her own undoubted Christian principles. If the applicant were returned to the community, he would have a good and stable home environment, as I have said, but Ms H would not be able to lead him to an appropriate appreciation, and open acknowledgement, of the wrongfulness of his past conduct. I accept that there appears to be the prospect of paid work on leaving immigration detention with a company called Barossa Fine Foods; and I accept also that there will be some support for the applicant from “Mr N”, who gave evidence to the Tribunal and who has a Christian background.[26]
[26] See also his statement at Ex A2.
I have had regard to the report prepared by the Rehabilitation Programs Branch of the Department for Correctional Services.[27] I accept the conclusion that the applicant’s risk of sexual reoffending is estimated to remain within the average range.[28]
[27] Ex R1, 54ff.
[28] Ibid, 60.
All in all, I accept that there is a medium risk of the applicant reoffending. I attach some significance to the deterrent effect of jail and immigration detention for this particular applicant, but I note as a counterweight the applicant’s defiance of the requirement that he not associate with the victim and the lack of empathy he has for the victim.
I further note that subparagraph (2)(c) of paragraph 8.1.2(1) requires me to consider whether the risk of harm may be affected by the duration and purpose of the noncitizen’s intended stay. As the applicant is seeking a permanent visa with which to reside in the community, there is no basis for discounting his risk by reference to this subparagraph.
I note again that the Direction requires me to assess the matters in subparagraphs (a), (b), and (c) of paragraph 8.1.2 (2) “cumulatively”, and I do so.
I am to have regard to family violence committed by the noncitizen under paragraph 8.2. There is no such violence to take into account.
I must have regard to the strength, nature, and duration of ties to Australia: see paragraph 8.3. Although Ms H said that the applicant considers her to be something of “a mother” to him, I do not regard the tie between them as especially strong, particularly given the many years the applicant has spent away from her, although she has kept in contact as best she could. I accept the respondent’s submission that the applicant did not spend his formative years in Australia. I do accept that his former partner, Ms W, would be assisted by the applicant resuming work in the Australian community and supporting their son. Although there is no question of her resuming a relationship with the applicant, Ms W would benefit from his involvement with their son, I believe, as this would make her parenting role easier. These factors do count in the applicant’s favour.
I must have regard to the best interests of minor children and, in this regard, I should consider the interests of the applicant’s son, J, who is now eight years of age approximately. Ms W gave evidence that she and J live with her parents, and so I am conscious of the fact that there are other caregivers to assist her. I am also conscious of the fact that the applicant has had no effective time one-on-one with his son. The relationship does not exist at the present time as a meaningful one-on-one relationship of father-son and has never done so. I do take into account, however, Ms W’s wishes, which in this respect reflect, I believe, the child’s best interests. She wishes the applicant to bond with his son, with whom he does maintain a relationship by phone. I think this factor does count in the applicant’s favour. The interests of a child are important. As I have said in other matters, children are very frequently the victims of the dysfunction in families brought about by the misconduct of one or other parent. Their prospects for a settled and fulfilling future life are substantially improved by a healthy relationship with both biological parents, and this remains the case even though others may contribute to the child’s welfare (as grandparents or family friends). I accept the respondent’s written submission that this consideration is one that weighs significantly in favour of the visa not being refused.[29]
[29] Ex R4, 9 [49].
I must take into account the expectations of the Australian community. I accept what appears in paragraph 8.5 (1); namely, that the Australian community expects noncitizens to obey Australian laws while in Australia. “[A]s a norm”, although not as a universal or inflexible rule, the Australian community expects the Government not to allow a noncitizen to remain in Australia where he or she has engaged in serious conduct in breach of the community’s expectations as the applicant has. I accept further that the crimes of which the applicant has been found guilty constitute very serious offending against a vulnerable child (see subparagraph (c) of paragraph 8.5(2)). As such, character concerns are raised immediately so that it may be appropriate simply because of the nature of these concerns to refuse a visa to the applicant. I note that these expectations apply whether or not the applicant poses a measurable risk of causing physical harm to the Australian community, and I further note that I am not to assess the community’s expectations in a particular case but to proceed on the basis of the expectations as outlined in paragraph 8.5. These count substantially against the applicant.
I must have regard to so-called “other” considerations under paragraph 9, including the legal consequences of a decision to affirm the decision under review. In this connection, I should have regard to what has been conceded by the respondent to be the prospect of “indefinite detention”.[30] This was also the delegate’s position. The respondent accepted that as a result of section 197C(3)(c) of the Act, the applicant may not be removed to Burundi given the finding that Australia owes the applicant protection obligations. Like the delegate, I believe it is appropriate to proceed on the basis that the applicant will face detention for an indefinite period if I affirm the decision under review.[31] No information was placed before me that suggested a third-country option was being actively considered for this applicant at this stage, nor was it suggested that he would benefit in a short timeframe from the exercise of the respondent Minister’s personal and non-compellable powers under, for example, section 195A of the Act. In these circumstances, on the evidence before me, the applicant faces “indefinite detention”, not quasi-permanent detention, but detention which is likely to be prolonged and in relation to which there is no fixed endpoint known to the applicant in advance. In this regard I refer to the decision of the plurality in the Full Federal Court case of WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; (2021) 285 FCR 463 (“WKMZ”).
[30] Ibid, 10 [53]-[55].
[31] Ex R1, 25 [101]-[102].
This is a consideration that weighs substantially in favour of the applicant.
WEIGHING THE CONSIDERATIONS
I now turn to weighing the various considerations. I wish to re-emphasise immediately the very serious nature of the crimes committed by the applicant in this matter. The exploitation of children (who are, by definition, vulnerable, particularly when they are wards of the state) is extremely reprehensible. It impacts adversely, sometimes irreversibly, the well-being of the individual concerned, and also poses a direct threat to the Australian community. The Direction speaks very strongly against this type of offending, involving, as it does, the sexual exploitation of the vulnerable. I note, in particular, that the commission of serious crimes against children, amongst other vulnerable members of the community, gives rise to character concerns that are explicitly mentioned in the Direction. These should “as a norm” lead to a refusal to grant a visa. I am mindful also of the risk of recidivism which I have assessed as not low, but medium and, therefore, real. This assessment of risk is to be treated “cumulatively” with the nature of the harm repetition of the applicant’s conduct would cause.
On the other hand, I must also be mindful of the legal consequences of affirming the decision under review. This is accepted by the respondent to be the ongoing detention of the applicant, who has already spent some two years in immigration detention. The protection finding made in respect of the applicant means that he may not be forcibly removed from Australia to Burundi. His ongoing detention may only be ended (apart from any election he might make to return to Burundi) by the securing of a third country to take him, or by the Minister exercising certain non-compellable powers available under the Act so as to allow the applicant to remain in Australia. I do not have information before me that suggests that the respondent has a country in mind that may take the applicant. I must say that it seems somewhat counterintuitive to suppose that a third-country would take a convicted child-sex offender when Australia is quite clearly determined to be rid of him, to put the matter in an unvarnished way. I have no information before me either as to the likely exercise of the Minister’s personal powers.
I do not impute to the Minister an intention that the applicant’s detention will be quasi-permanent unless and until a third country is found. That would be to impute to the Minister a wholly unreasonable and inhumane intention. The detention must be brought to an end at some point. But there is no doubt that the detention the applicant would face were I to affirm the decision under review could well be prolonged.
I bear in mind the plurality’s observations in WKMZ. The importance of personal liberty as a fundamental human right is reflected in our common law and must be carefully weighed.[32] Immigration detention involves a most serious infringement of personal liberty. There is no doubt that in this case the applicant, whilst in jail, served the time required by our criminal law. Indeed, he served almost the entirety of the head sentence in jail. I make that point because there should be no question in a decision-maker’s mind of an applicant’s detention being a further justifiable, or at least non-objectionable, punishment for his or her past offending.
[32] See [2021] FCAFC 55; (2021) 285 FCR 463 at [123].
I accept fully all the Direction has to say about this sort of offending, as I have made clear, but the ongoing deprivation of liberty in this case is a most serious consideration to weigh. The plurality in WKMZ did not suggest it would automatically be decisive, but it is an important matter to consider. I must also take into account all the other matters, including those that favour the applicant (such as the best interests of his minor child, J).
FORMAL DECISION
These decisions are rarely straightforward, and in this difficult case, I have decided that the correct or preferable decision on balance on the evidence before me favours not refusing the applicant a protection visa under section 501(1) of the Act. Having reached this conclusion, it follows that I should set aside the decision under review and substitute a decision to this effect.
I certify that the preceding fifty-five (55)
paragraphs are a true copy of the reasons
for the decision herein of Senior Member
Dr N A Manetta
…[sgnd]…………………………..
Associate
Dated: 11 September 2023
Date of hearing:  27 & 28 July 2023
Advocate for the Applicant:      Melinda Jackson,
Owen Dixon Chambers West
Advocate for the Respondent:  David Brown,
Australian Government Solicitor

[2023] AATA 2880

14 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Standing