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

[2024] AATA 1099

GRPN and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1099 (1 May 2024)

Division:GENERAL DIVISION

File Number:          2024/0820

Re:GRPN  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Rebecca Bellamy

Date of decision and oral reasons:     1 May 2024

Date of written reasons:  16 May 2024

Place:Brisbane

For the reasons given orally at the conclusion of the hearing in this matter, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirmed the decision made by the delegate of the Respondent dated 9 January 2024, to cancel the Applicant’s visa under section 501(2) of the Migration Act 1958 (Cth).

.................[SGD].....................
             Senior Member R Bellamy

CATCHWORDS

MIGRATION – Non-revocation of mandatory cancellation of an Ex-Citizen Subclass 150 visa where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – multiple sexual offences against a child family member – otherwise of good character – strong ties to the community – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

SECONDARY MATERIAL

Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member R Bellamy

16 May 2024

1. The hearing of this matter took place on 22 and 23 April 2024. The Applicant had legal representation. He and his wife gave evidence by video link. The Tribunal also received the documentary evidence listed in Annexure A. This was, to use a colloquialism, an expedited matter. Pursuant to s 500(6L) of the Migration Act 1958 (“the Act”), the Tribunal was effectively required to make a decision by 1 May 2024.

2. I delivered my decision and simplified reasons ex tempore on 1 May 2024. I did that, rather than provide written reasons, because I thought it would be easier for this Applicant to understand my reasons if I gave them in spoken, simple language, without the usual degree of precision, technicality and repetition associated with written reasons in these matters. I told the parties that they could ask for written reasons and the Applicant’s lawyer did that some days later. I now provide a settled, written version of my reasons.[1] These reasons differ from my ex-tempore reasons in three major respects, each of which I foreshadowed when I gave my decision.

   [1] Noting that the transcript contains some errors.  

3. First, in these reasons, I refer to the Applicant in the third person rather than the second person which, in turn, has required some minor adjustments to the language used. Second, in my ex-tempore reasons, I adopted the Respondent’s analysis of the applicable legislation (which was not in dispute) and the Crown’s description of the index offences, without repeating those. Here, I have set out the effect of the key legislative provisions and the Crown’s description of the index offending. Third, in these reasons I used pseudonyms, and omitted or generalised information to protect the identities of the Applicant’s victim and his minor grandchildren.

   LEGAL FRAMEWORK

4. The Applicant was born in Tonga in 1968. He is a Tongan citizen. He moved to Australia in September 2005.  He committed some offences against his niece in 2008 and 2009.  In 2011, he applied for Australian citizenship, and he became an Australian citizen by conferral in 2012. In 2013, he committed two more offences against his niece. In 2017, he was convicted of six offences against her and sentenced to two years imprisonment to be suspended for five years after serving six months. 

5. In 2019, the Applicant’s Australian citizenship was revoked in the public interest because he had been convicted of a serious offence after he applied for citizenship. By operation of law, he was immediately granted an Ex-Citizen subclass 150 visa (“visa”).

6. In December 2020, the Applicant was told in writing that his visa could be cancelled under section 501(2) of the Act because of his offending. He and his lawyer made some representations about that to the Respondent's department. On 9 January 2024, his visa was cancelled, and he was later taken into immigration detention. In February 2024, he applied to the Tribunal for a review of that decision.

7. Section 501(2) of the Act provides that:

   The Minister may cancel a person’s visa if:

   a)    the Minister reasonably suspects that the person does not pass the character test; and

   b)    the person does not satisfy the Minister that the person passes the character test. (Underlining added)

8. A person may fail the character test under s 501(6)(a) of the Act if they have a “substantial criminal record”, as defined under s 501(7)(c) of the Act. Under s 501(7)(c) of the Act, a person will have a “substantial criminal record” if they have been sentenced to a term of imprisonment of 12 months or more. 

9. As the Applicant does not pass the character test, I must decide whether the discretion to cancel his visa should be exercised, and I must make that decision in accordance with Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”). That is, I must consider and allocate weight to each of the mandatory considerations having regard to the guiding principles. Then I must determine which outcome the weightings, assessed together, favour. I may allocate no weight one way or another to a mandatory consideration if that is appropriate. 

   MANDATORY CONSIDERATIONS THAT DO NOT ATTRACT WEIGHT

10. There are some mandatory considerations that are neutral, and I will dispose of those first.

11. Other Consideration (a) concerns the legal consequences of the decision. Affirming the decision to cancel the Applicant’s visa means he will be removed to Tonga as soon as practicable, and he cannot apply for another visa while he is in Australia,[2] except for a protection visa. That is how the legislative scheme is supposed to work. 

    [2] At paragraph 9.1 of the Direction.

12. Apart from the Applicant’s separation from his family and his inability to earn an income in Australia, which would be the case if he were removed to Tonga, he is not suffering any particular hardship from being in detention. He does not claim to be a refugee or in need of complementary protection, and no such claim arises on the evidence. 

13. Other Consideration (d) concerns the impact of my decision on an Australian business interest. The Applicant was a sole trader conducting a business. He was contracted to another business to unpack freight from shipping containers. He did not employ anyone or subcontract to anyone. The cancellation of his visa has effectively ended his business. I take the loss of that income stream into account, as it impacts him and his family, under Primary Consideration 3 and Other Consideration (b). The business that used his services has found someone else to do that work. I am not satisfied that any Australian business has been impacted in a way that warrants weight being applied to this Other Consideration. 

14. Before I address the mandatory considerations, where I do allocate weight for or against the Applicant, I will indicate which facts I accept.

    BACKGROUND AND OFFENDING

15. The Applicant was the youngest of 11 children. His father was physically abusive. When he was a child, he thought around eight to ten years old, he and his sister were sent to live in New Zealand to live with their older sister.  His parents and other siblings moved to the United States. He felt abandoned by his parents. He was neglected by his older sister and her husband. He was physically abused by them, and he ended up living on the street at around the age of thirteen. 

16. The Applicant first used alcohol at around twelve or thirteen years of age. Between the ages of fourteen and nineteen, he took drugs in pill form, which he thought was a form of amphetamine, and he used cannabis.  His alcohol use increased when he was sixteen or seventeen years of age and continued into adulthood. 

17. When the Applicant was at school, he was put into a special class, although he did not realise it at the time. He has only recently been told by a psychologist in the detention centre that he probably has Attention Deficit/Hyperactivity Disorder (“ADHD”).  In around 2017, his General Practitioner (“GP”) thought he might be hyperactive. In 2020, a psychologist, Mr Nick Smith, noted some obsessive-compulsive thought patterns, that he attributed to anxiety. It was apparent when the Applicant gave evidence that he has some memory problems, and he described always having had difficulty concentrating, being easily distracted, and having difficulty remembering people’s names and the timing of events. He does not appear to have a diagnosis, but I think it is likely that he has a condition that affects his ability to process information. 

18. Life was hard for the Applicant growing up and he was treated pretty terribly. 

19. The Applicant had four children with an ex-partner in New Zealand, and he ended up with sole custody of them. He met his second wife in about 1995 and had two more children with her. He had a stable home life with his wife and six children. He and his family have lived in Australia since 2005.

20. Apart from the offences against his niece and some traffic infringements, the Applicant does not have any criminal history in Tonga, New Zealand or Australia. Apart from that offending, he has lived a respectable life despite having a serious drinking problem. 

21. The Applicant’s wife has a sister, “Ms L”. His wife gave evidence that she and Ms L frequently minded each other’s children over a long period of time and the two families were close. Ms L had two sons, “NB” and “JB”, and a daughter, “CB”. JB suffered from a fatal disease, muscular dystrophy. His father left the family as he was unable to cope with that. Ms L relied on the Applicant and his wife to help mind NB and CB while she needed to attend to JB. It was the Applicant’s wife who mostly looked after the children, and the Applicant was around sometimes. His children were also around. The cousins all shared a close bond. 

22. In early 2008, when CB was seven years old, the Applicant first abused her. The abuse occurred at her home. The facts of this offence, and the others, were described in the sentencing schedule that was provided to, and accepted by, the District Court as follows:[3]

    [3] Some words are omitted or changed to de-identify people and locations.

    Count 1

    There was a party at the complainant's house…when the defendant told the complainant to come out the back of the house with him. The defendant took her around the corner of the house. They were down the side of her house near her bedroom. He smelt of beer and told the complainant not to tell anyone and to say that she had been in the toilet.

    The defendant put one hand up her shirt and the other down her pants. He licked two fingers on his right hand and rubbed the outside of the complainant's vagina for approximately 2 or 3 minutes and opened her labia with his fingers. The defendant asked the complainant if it hurt, if it felt good and if she wanted him to stop. The complainant told the defendant to stop.

    The defendant also put his hand up the complainant's shirt and rubbed her breasts, grabbing and squeezing them with his left hand. He ‘basically did it at the same time’.

    After about three or four minutes, the defendant's son…came out of the house and called out ‘Dad’ and the defendant pulled both hands out of the complainant's clothing and got his phone out of his pocket. The defendant pretended to be on the phone. [His son] went back inside. [His son] did not see the complainant.

    The defendant put his hand back in the complainant's pants and shirt for another 2 or 3 minutes. When he pulled his hands out, they walked back inside the house together.

    Later that evening as the defendant was leaving the complainant's house, he offered her $20 with no conversation regarding the reason.

    Count 2

    The complainant was at the defendant's house…when the defendant approached her at the back of the house near the bathroom window. The complainant was playing with the defendant’s dog when he asked her if she wanted to earn money. She agreed and he said “but no-one can see it”.

    The defendant moved the complainant against the wall and kissed her on the mouth, using his tongue, for approximately 20 seconds. The defendant then lifted up the complainant's dress and put his left hand down the top of her underwear. He rubbed the outside of the complainant’s vagina.

    The complaint’s mother called out to her. The defendant gave the complainant $20 and said “that's for being a good girl.” The complainant then went inside the house and the family left to go home.

    Count 3

    The complainant was sleeping in her [cousin’s] bed (which was a mattress on the floor at the time). [He] was sleeping next to the complainant. The defendant sat down on the corner of the bed and asked the complainant if she was awake. He then laid down in the bed and put the blanket over himself. He placed a hand down the back of the complainant’s shorts, on top of her underwear, and squeezed her buttocks, twice.

    The complainant saw the defendant's face as there was a little bit of light from the bathroom, the wart on his leg, and recognised his voice.

    The defendant's wife called out for the defendant and he left the room.

    The defendant came back into the room and slept in the room with them but was gone when the complainant woke up in the morning.

    Count 4

    At about 4pm, the defendant drove the complainant to his work address at an unknown location as she wanted to see his work for the first time. The drive was approximately 5/10 minutes from the complainant’s house…. The complainant sat in the front passenger seat.

    The complainant recalls the defendant's work being very empty with boxes everywhere. The complainant was helping the defendant clean the ‘break room’ when he took her to a back room that had 6 walls, and was large with no windows.

    The defendant told the complainant to be quiet and put his hand down her pants into her underwear. He touched the complainant on top of her vagina. The complainant was against the wall.

    A co-worker called the defendant away for a short time. The defendant returned and said “all these people these days” and placed his hand back inside the complainant's pants. He used two fingers to rub the bottom area of the complainant's vagina.

    The defendant said ‘we should go talk to my boss’. The defendant spoke with his boss.

    At about 6/7pm at night, the defendant drove the complainant home. He gave her $10 and said ‘it’s our little secret remember, don’t tell anyone’. It was the only time the complainant went to his work.

    Count 5

    The complainant was sitting in the front passenger seat whilst the defendant was driving to pick up his son…from…training.

    When they were at a red light, the defendant unbuttoned the complainant’s jeans. He slipped his left hand inside the complainant’s jeans, on the outside of her underwear, and rubbed her vagina.

    The defendant stopped when they arrived at the carpark to the…training grounds.

    Count 6

    The complainant was at her house…lying on the bed watching television when the defendant came downstairs and sat on the bed. The complainant's mother and Aunty were upstairs. The complainant's brother…was sitting on the balcony area watching television, too.

    The defendant placed his hands down the back of the complainant's overalls, underneath her underwear, and rubbed the complainant's buttocks.

    After 2 or 3 minutes, the complainant got up from the bed to get her brother a drink. The defendant stayed on the bed. The complainant returned to watch television and lied (sic) on the couch whilst the defendant stayed on the bed.

23. Essentially, the Applicant had been drinking. He told CB not to tell anyone. He fondled her private parts under her clothes. He kept doing it after she told him to stop. His son called out to him and he pretended to be on the phone. Then, when his son was gone, he continued the abuse. Afterwards, he offered CB $20. In cross-examination, the Applicant was asked if he gave CB the money so she would not tell anyone what he had done, and he seemed to agree with that, but he also said that he gave her the money because he felt bad about having done wrong.  He abused her in a similar way on five more occasions. 

24. The second offence occurred about a month after the first at the Applicant’s home. He asked CB if she wanted to earn money and he told her “no-one can see it.”  He was interrupted when her mother called for her.  He gave her $20 and said “that’s for being a good girl.”  The Applicant agreed with the lawyer for the Respondent when he suggested that the Applicant had offered CB money so he could assault her. The Applicant said he would have been drinking at the time. 

25. The third offence occurred in 2009, around a year after the first offence. CB was sleeping on a mattress on the floor next to the Applicant’s son. The Applicant abused her with his son right there, although, there is no suggestion that his son was aware of what the Applicant was doing. Again, he was interrupted, this time by his wife calling out, but he came back into the room and went to sleep next to CB. 

26. The fourth offence also happened in 2009. The Applicant showed CB his workplace and she helped him clean the breakroom. He told her to be quiet as there were other workers around, and he molested her. Once again, he was interrupted – called away by a co-worker – but he returned and resumed the abuse. After the Applicant drove CB home, he gave her money and said “It’s our little secret, remember don’t tell anyone.” He said he would have had a couple of beers as it was the afternoon, but he was not under the influence of alcohol. 

27. There was a break in the Applicant’s offending of a few years. He said he thought that was because he was busy with work and did not see CB much. 

28. It seems that around 2012, the Applicant may have made an effort to get help with his life, including with respect to the offending. He initially thought he had asked his GP for help between the commission of the second and third offences, which occurred in 2008/2009. However, in 2017, his GP wrote a letter that said that five years earlier, the Applicant had mentioned feeling depressed and anxious over something he did in the past while under the influence of liquor, and he had referred the Applicant for counselling. That would mean he first sought help from him in 2012. 

29. Whatever help the Applicant’s GP gave was not effective because in 2013, the Applicant resumed offending. CB was 12 years old, and she was in the car with the Applicant on his way to pick up his son from football training. He molested her and only stopped when he arrived at the carpark to the training grounds. 

30. He committed the sixth offence in late 2013 in CB’s home. She was lying on a bed watching TV. Her mother and his wife were upstairs. Her brother, JB, was nearby, also watching TV.

31. There is no indication that the Applicant would have stopped his opportunistic offending of his own volition. 

    INVESTIGATION, CONVICTION AND SENTENCE

32. Not long after the sixth offence in early January 2014, CB told her mother about the abuse. Ms L told her sister, the Applicant’s wife, about three of the incidents. She thought that such a thing was completely out of character for the Applicant. She was in disbelief. She spoke with him, and he denied it. She stayed with Ms L for the next two days. She then met the Applicant in a carpark and he admitted to those three incidents. 

33. The Schedule of Facts, which was accepted by the Court, indicated that the Applicant’s wife asked Ms L not to report the abuse to the police. In the hearing, the Applicant said he never discussed the offending with Ms L, and he did not know about any conversation between his wife and Ms L after the conversation in which Ms L told her about the offending. In her evidence, his wife was adamant that she did not make any such request, and that she did not speak about the offending with Ms L or CB after they told her about it. She thought the Applicant should be held accountable for his actions.  Upon finding out about the abuse, the Applicant’s wife told him that if he wanted to remain with her and his children, he had to get help with his life.  I found his wife to generally be a credible witness, so I have given the Applicant the benefit of the doubt and found that there was no such request made that the police not be told. 

1. The Applicant’s wife thought the Applicant needed to deal with issues from his childhood that had led him to abuse drugs and alcohol. She thought he needed rehabilitation for substance abuse so he could have a clear mind. She thought that he was “so drunk and out of it,” that he was not in his right mind when he offended. 

2. In 2017, the Applicant told a psychologist, Dr Steve Morgan, that his GP had referred him for counselling in 2014. He recalled wanting to attend psychological treatment in order to address his anxiety and low mood. Later on, he was worried about his situation after his offending was revealed, which led him to counselling with Dr Karina Bradley. That is, his GP referred him for counselling in 2012, but it was not until 2014, after his offending was revealed, that he engaged in counselling. 

3. Ms L reported the offending to the police in March 2014. In December 2014, CB made what the police called a “pretext phone call” to the Applicant for the purpose of covertly getting a recorded confession. He told CB he did not remember the abuse, he was sorry and he was attending alcohol counselling.  It seems that was not enough evidence as some months later, in August 2015, Ms L made a pretext phone call. She told the Applicant she wanted him to visit JB, and he said that he would love to. She said she would let him come if he admitted to the abuse. He did not know he was being recorded and he did admit to it. 

4. In May 2016, the Applicant went with his lawyer to the police station. He was arrested, charged and granted bail. He thinks he stopped drinking around this time. He recalled that he did that because drinking was a distraction from his life, it affected the way he thought and he could not remember things. 

5. At some stage, the further three episodes of offending were disclosed to the police, hence the six incidents that formed the foundation of his convictions. The Applicant’s wife said she never discussed the additional offences with him, but she knew about them because she was involved in a meeting with the Applicant and his lawyer. 

6. The Applicant’s lawyer advised him to plead guilty because the police had evidence. He pleaded guilty to:

   ·     four counts of “indecent treatment of children under 16, child under 12 years, domestic violence offence; and

   ·     two counts of indecent treatment of children under 16, domestic violence offence. 

7. The Applicant was sentenced in July 2017. By that time, JB had passed away.  Victim Impact Statements from CB, NB and Ms L were taken into account by the learned sentencing Judge, and it does not appear that they were challenged. 

8. CB’s statement indicated that the Applicant’s offending damaged her mental health to the point where she became suicidal. She described flashbacks that were like “looking at the devil.” She was frightened every day that if she left the house, she would see the Applicant. He changed the way she looked at men, thinking they wanted her as a sex object, not as a person. She said she would be traumatised for the rest of her life because she was led to think that the abuse was her fault. She described the Applicant’s manipulation and her fear that he would enter her home to hurt her. Her anxiety and depression affected her grades at school. She described losing her family, presumably referring to the Applicant’s wife and his children (her aunt and cousins), when she had done nothing wrong. 

9. CB’s brother NB also described losing that branch of his family. He said he had looked up to the Applicant as a hero, and that seeing the impact of the Applicant’s offending on his sister was difficult to live with. 

10. Ms L’s statement demonstrates how much the families of victims of abuse suffer. She said she was extremely close to her sister and played a major role in raising the Applicant’s children. She said because of JB’s disease, she had no choice but to leave her children with the Applicant and her sister while she tended to JB. She described it as a sad, vulnerable, desperate time for her family when the Applicant chose to abuse her daughter. She said his family was “trusted kin” and that she felt betrayed. She suffered a nervous breakdown and felt guilt for having failed her daughter. She became hypervigilant because of CB’s suicidal ideation and she no longer felt safe in her home. Her anxiety and stress caused physical ailments. She referred to the Applicant’s manipulation of her surviving son, NB, as having affected her relationship with him. She said she felt constantly sickened when she thought of how the Applicant said CB would ruin the family if she revealed what he did to her. In the hearing, the Applicant denied having told anyone that CB would ruin the family. 

11. Ms L also referred to her cat going missing in suspicious circumstances and fearing her family would be killed during the investigation. I am not prepared to make a finding that anyone threatened CB’s family or did something to their cat, but I accept that Ms L held those fears as a consequence of the offending and the fallout after it was reported and investigated.

12. The learned sentencing Judge said:

    “…all sexual offending against children is deeply troubling and offensive. The community, rightly, is outraged by such offending.  His offending was against someone in relation to whom he had a position of trust, being her uncle.  It was not just a one-time flash in the pan, so to speak…the offending was, as I said, serious offending and is offending of a kind which is likely to have had and did have serious consequences.”

13. His Honour said that CB’s Victim Impact Statement revealed intense trauma which was entirely understandable, and that trauma to the broader family was “unsurprisingly, but sadly” commonplace in cases of this kind. 

14. At some point, the Applicant moved away from the area where CB lived so she would not have to worry about running into him, and that is to his credit.  The Applicant has not had any contact with CB since the pretext telephone call, and he said his children do not either. In all the written statements provided by the Applicant’s children, in which they talked a lot about their lives and each other, none referenced CB and her family in any meaningful way.

15. The Applicant’s wife and children have all stood by him. They do not think there is any risk that he will reoffend, although their statements do not indicate that they have grappled with his offending – that they have a real understanding of it. 

16. In recent years, the Applicant’s wife has managed to rebuild, to some extent, her relationship with CB’s remaining family. In February 2024, the Applicant was placed in immigration detention. Shortly afterwards, his son, “Mr A”, who was living in New Zealand, took his life. This has affected the Applicant and his wife deeply, and I am very sympathetic to them both and to the Applicant’s other family members. Ms L sent the Applicant’s wife $3,000 when she heard what had happened. NB flew to New Zealand for the funeral, his trip paid for by CB. 

17. Now I will address the mandatory considerations in the Direction.

    PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY

18. Primary Consideration 1 concerns the protection of the Australian community. The government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are and have been law-abiding and that they will not cause or threaten harm to individuals or the Australian community. This consideration weighs against the Applicant. In determining how much it weighs against him, I have to consider:

    ·the nature and seriousness of his offending and other serious conduct; and

    ·the risk to the Australian community should he reoffend. 

19. The Direction deems sexual crimes to be very serious regardless of the sentence imposed. Even if the Applicant’s offending was not deemed to be very serious, it obviously is. His victim was vulnerable in the sense that she was a very young girl in his care. His offending was not just one incident, one lapse of judgement, one terrible mistake, one disastrous encounter when he was blind drunk. He abused CB on six separate occasions when he exhibited planning and presence of mind, even if he was affected by alcohol on some of those occasions. He abused her in her home, his home, his workplace and his car. He did it with other people in close proximity. It can be readily inferred that there was nowhere and no situation where, if the Applicant was present, CB could feel confident that he would not abuse her.

20. The offending was frequent, and the cumulative impact of the Applicant’s repeated offending is well articulated in CB’s Victim Impact Statement. The sentencing Judge pointed out that the Applicant’s offending was not at the most severe end of the spectrum of offending of that kind. However, he still described the offending as serious, and he said all offending of that kind was deeply troubling and offensive. He sentenced the Applicant, as a first-time offender, to a period of actual imprisonment.

21. The Applicant gave CB money and told her she was a good girl for allowing him to abuse her. A child’s inclination is to want to be good, to gain the approval of adults. A child of that age does not have a fully formed sense of self or robust boundaries. They put up with adults doing things that they find revolting, frightening or confusing because they have not learned societal and familial mores, or they do not feel empowered to resist. To CB, he equated being good with allowing and concealing sexual abuse. That can have far-reaching consequences, making a victim more vulnerable to being abused by other predators and, when they are older, by abusive partners.  There is no evidence that CB has been abused by other people – in fact, the Applicant’s wife said she is now in a lovely long-term relationship – but she did come to believe that males would only value her as a sex object and not as a person. 

22. The Applicant has also committed quite a few traffic infringements. Those include, since 2008, speeding 16 times and using a mobile phone twice. The infringements on their own are not terribly serious, but all together they show a level of disregard for road rules. When the Applicant was asked why he did so much speeding, he said that he was not focused, which is not much of an explanation.

23. I have to assess the risk to the Australian community should the Applicant commit further offences. The Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some harm is so serious that any risk may be unacceptable. 

24. The sort of harm from further offences, like the offences the Applicant committed against CB, is extremely serious long-term psychological and emotional harm to the immediate victim, as well as serious psychological and emotional harm to those close to the victim. Further traffic offences would tend to increase the risk of collisions which could result in physical, financial and psychological harm to members of the Australian community. 

25. I do not have the benefit of a risk assessment from an appropriately qualified expert, so I am left to assess the Applicant’s risk of reoffending having regard to other evidence.

26. The Applicant described his mental state when he was offending as a feeling of not having control of his life and he thought his alcohol consumption played into that. Since committing the offences, he has given up alcohol and he does not use drugs, although he has had the odd relapse when relatives have died. Alcohol is known to have a disinhibiting effect and it can cloud judgment. However, the Applicant committed some of the offences when he was not affected by alcohol, so I do not accept that alcohol was a crucial factor in his offending. It appears that the Applicant accepted this prior to being sentenced: a presentence report said “he candidly denied alcohol as being a significant contributing factor in respect of his behaviour.” Therefore, the fact that he no longer drinks does not significantly lower his risk of reoffending. 

27. According to a letter provided by Dr Bradley for the purpose of the sentencing proceedings, the Applicant had engaged in seven sessions with her in 2014, two in 2016, and two in 2017. In those sessions, he had addressed his sexual thoughts and behaviours as well as his alcohol intake. She thought he had shown commitment to addressing his offending behaviour. 

28. Oddly, in Dr Morgan’s presentence report, which was done in 2017, he said the Applicant had reported that he was unable to disclose his sexual offending in sessions with Dr Bradley because of his embarrassment and anxiety, especially as she was female. There is no other information before me about his sessions with Dr Bradley, so I am not able to discern how successful those sessions were in terms of reducing the Applicant’s risk of reoffending. 

29. Dr Morgan had been engaged by the Applicant’s solicitors, it seems, for a presentence report. He made some treatment recommendations and referred the Applicant to Mr Nick Smith, a forensic psychologist.

30. Dr Morgan noted that the Applicant told him that he had been sexually attracted to CB and he developed an infatuation with her. He had struggled to desist from offending.  He recalled that he was intoxicated in three of the offending episodes. He denied sexual interest in other age-inappropriate females. Dr Morgan thought his offending was associated with deviant sexual interest, accessibility of and vulnerability of the victim because of his position of trust, failure to inhibit his offending behaviour and the disinhibiting effect of alcohol on some occasions. 

31. Dr Morgan thought that critical treatment needs to reduce the Applicant’s risk of reoffending and enhance his future life prospects were:

    ·engagement in a sexual offence-specific group treatment program;

    ·psychological offence-specific treatment to address the deviancy aspect of his offending via attending a suitably experienced psychologist with experience and expertise able to explore the basis of his offending and examine risk prevention strategies; and

    ·psychological non-offence-specific treatment for his anxiety and low mood, and any further risk of alcohol dependency. 

32. Dr Morgan thought the Applicant was genuinely remorseful, and he recognised the distress and loss of trust endured by CB and her family.

33. The Applicant was a reportable offender, essentially meaning he had to report contact with children until 16 January 2023. During that time, he withdrew from the general community in order to keep away from children, but he did spend time with his grandchildren. He breached his reporting obligations twice, but I accept that those contraventions were unintentional and there was nothing sinister about them.

34. Mr Smith provided brief reports in 2017, 2020 and 2023. It seems the Applicant saw him in 2017, 2018, once in 2020 after he was told his visa could be cancelled which caused him anxiety, and at least once in 2023. Mr Smith reported that the Applicant denied any recurrence of sexual thoughts about children or deviant sexual arousal. Mr Smith thought he presented as a pro-social, hardworking and family-orientated man who was contrite, confused, and perplexed by his offending behaviour, who was clearly aware that he had done the wrong thing and who considered it morally appropriate that he faced the legal consequences of his offending. I accept all that. That is how the Applicant presented to the Tribunal in the hearing.

35. From the Applicant’s perspective, he was primarily seeing Mr Smith to manage his mental health, including anxiety and depression. He has made some progress managing his obsessive thoughts. Mr Smith is happy to continue seeing the Applicant to manage his mental health and any risk factors that may emerge in the future. The Applicant needs a referral to see Mr Smith, and that lasts for four sessions. The Applicant needs to see him in person because he cannot focus over the phone. The last time the Applicant saw Mr Smith was before he was detained.

36. In 2019, the Applicant had reengaged with Dr Bradley. In 2021, she indicated that her sessions with him had focused on depression, anxiety, and intrusive thoughts and ruminations. In January 2021, he had requested further sessions in relation to childhood trauma which he said still affected him.

37. The Applicant’s wife indicated that he recently disclosed a repressed memory of having been molested by a family member in Tonga, and that this normalised that behaviour to him. A lot more explanation would be required before I could accept that, and there is no mention of this in any of the letters from psychologists.

38. The Applicant’s wife thinks Mr Smith has taught him useful coping skills so that he understands that in times of depression, he must self-console rather than self-sabotage, which is what she thinks he was doing when he offended, although none of the psychologists put it in that way.

39. The Applicant said he has not engaged in a group sex offender treatment program. He said he did engage in some group rehabilitation sessions to do with drugs and alcohol, and sex offending, in prison and detention where participants “talked about things.”  He has not put forward any certificates or other documentary evidence, but he thought those sessions were run by the Salvation Army. I am not able to assess what exactly the Applicant did, and what progress he made. It does not seem that he has engaged in any targeted family violence rehabilitation either. 

40. There is no evidence that the Applicant committed any offences, except for the traffic infringements, between the last offence against CB and his incarceration, or since his release from gaol. He committed traffic infringements after getting out of gaol, and even after he was told that his visa could be cancelled. He said he had no knowledge of some of these. If he was not the driver of his vehicle when those fines were incurred, it was up to him to let the government know and explain what happened. He did not. I am satisfied that he was driving. He was still showing some disrespect for the rules.

41. Some people in the community have provided character references for the Applicant. His family members, in their statements, described him as a person of good character. However, none of the statements squarely address his offending.  Good character is, of course, a double-edged sword when we are dealing with a type of offence that is much easier to commit and get away with if the offender has the trust and good favour of the community. The Applicant is not the first child-sex offender whose crimes shocked the people close to them. He was a person of good character before he committed the offences, and he was otherwise a person of good character during the period when he was committing the offences. Neither his good reputation among family or friends, nor his good behaviour since the offending, necessarily mean he will not reoffend.

42. I am satisfied that the Applicant genuinely regrets his offending. However, his regret seemed to come after his offending was exposed. He did not engage in counselling until after his wife had been told about his offences and gave him an ultimatum. I think his regret is primarily related to the impact of being reported to the police, and the consequences on him and his family, and the shame he feels surrounding what he did. He talked about that quite a lot in his written evidence.

43. When I asked the Applicant what harm his offending caused, he talked about harm to himself and his family. Later, he talked about the broken relationships between his family and the victim’s family. He said he felt very bad and sorry for dividing the family. When I prompted him, he identified some harmful impacts on CB. I accept that if the Applicant were to return to the community, he would probably engage with Mr Smith (with his wife’s encouragement), with respect to his general psychological wellbeing. I accept that he is likely to maintain his sobriety. 

1. I also accept that the Applicant would have strong motivation to avoid any activity that could put his liberty or his visa at risk. However, the evidence does not convince me that he has fully addressed the sexual deviancy aspect of his offending. Two psychologists identified it as a contributing factor, but there is not any evidence before me that it has been adequately unpacked and corrected.

2. I do not think the Applicant having his family around him will lessen his risk of reoffending.  They were around, and sometimes in close proximity, when he offended. Their written evidence indicates that they are in denial to some extent.

3. The Applicant said he will not reoffend, and he has pointed to his faith as something that helps him.

4. Despite my concerns, I think the risk that the Applicant will reoffend is very low, but I cannot be confident that it is only marginal or remote. I am satisfied that there is a material risk that he will reoffend, and given the harm that would result from him reoffending, any material risk is unacceptable. 

5. Primary Consideration 1 weighs very heavily in favour of cancelling his visa. 

   PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

6. The next Primary Consideration relates to family violence. The government has serious concerns about conferring on non-citizens who engage in family violence, the privilege of remaining in Australia. The government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.

7. CB was the Applicant’s niece and spent a lot of time with his family, including in his family home. He had unsupervised access to her because of his familial relationship to her. I am satisfied that she was a member of his family. She was afraid of him because of his offending, and she acquiesced to him doing things that she did not want him to do. I am satisfied that each of the offences meet the definition of family violence.

8. The familial relationship was crucial to the Applicant’s offending and adds further seriousness to it. The Applicant abused his position as CB’s trusted uncle to gain unsupervised access to her and molest her. His offending broke the broader family apart, which was particularly hard on CB’s nuclear family. 

9. Many of the factors in this consideration overlap with the factors in Primary Consideration 1, and I will not repeat my findings on those. The Applicant does accept responsibility for his family violence, although he initially denied it. He did not blame anyone else or attempt to minimise it. He has an understanding, although incomplete, of the impact of his offending on his victim. He has made some efforts to address the factors that contributed to his offending, but more rehabilitation is needed.

10. Primary Consideration 2 weighs heavily in favour of cancelling the visa.

    PRIMARY CONSIDERATION 5: EXPECTATIONS OF AUSTRALIAN COMMUNITY

11. I am going to move to Primary Consideration 5 because it is the last consideration that weighs against the Applicant.

12. The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia. The Australian government can and should cancel a non-citizen’s visa if they raise serious character concerns through conduct that includes acts of family violence or serious crimes against children. This applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. 

13. The Applicant committed multiple serious crimes against a child that were also acts of family violence. Primary Consideration 5 weighs heavily in favour of cancelling the visa.

    PRIMARY CONSIDERATION 3: STRENGH, NATURE AND DURATION OF TIES TO THE AUSTRALIAN COMMUNITY

14. Primary Consideration 3 relates to the strength, nature and duration of the Applicant’s ties to the Australian community. Here, I am to consider the ties the Applicant has to the Australian community and any impact of the decision on his immediate family members in Australia, where those family members have a right to remain in Australia indefinitely. I should give more weight to his ties with children. 

15. The Applicant moved to Australia well into adulthood, in 2005. He started committing traffic offences and child sexual offences only three years later in 2008.

16. With respect to his contribution to the Australian community, in the 19 years he has been here, he has always had gainful employment, he has paid taxes, he has been an active member of his church, and he has been active in his children’s sporting clubs. While in immigration detention, he has encouraged detainees to exercise for their health and wellbeing, and to join him in Bible study. He has been a pleasant, helpful member of the community. The Applicant is well regarded, and I am prepared to accept that he has plenty of social connections to the Australian community.

17. The Applicant’s parents are deceased, and he is estranged from his siblings.  Effectively, his only family are his wife, five living children, and fifteen grandchildren. With the exception of three grandchildren, his family all live in Australia. His family is loving and close. They typically spend weekends together and attend church together. The Applicant and his wife help look after their grandchildren. One of his sons, “Mr J” and his family have been visiting the Applicant in detention since he was moved to Villawood, as they live in Sydney.

18. I accept that the Applicant has strong familial ties to Australia. I accept that even though some of his grandchildren are too young for him to have built a meaningful relationship with them, he still loves them and it will pain him not to be around them as they grow up, and they equally will not have the benefit of him being around.

19. I realise that the Applicant, his wife, his children (all adults), his in-laws and his grandchildren in Australia who knew and loved his son, Mr A, are suffering emotional hardship following Mr A’s recent death. Mr A had been living in New Zealand with his mother for two years, and he had been struggling with his mental health. Mr A’s eldest child lives in Brisbane with his mother, while the other three children live in the United States with their mother and have barely any contact with the Applicant. The Applicant’s wife is barely coping with her grief, and his son, “Mr D” has moved into the family home to help her get through each day, making sure she eats and things like that.

20. A couple of years ago, the Applicant’s wife was seeing a psychologist for depression and thoughts of suicide because of her work, the Applicant’s situation, and other things, and she is going to book in for more counselling soon. She will not take antidepressant medication because she is afraid of drugs.

21. I accept that it is not realistic for any of the Applicant’s family members to go with him to Tonga, and they are worried that he will not cope there. His wife is afraid that he will be killed as a result of violent crime, and he will not be able to get a job.

22. I accept that the impact of the Applicant being removed from Australia will cause further emotional and psychological hardship upon the existing emotional and psychological hardship that the Applicant’s family, especially his wife, are already experiencing. 

23. The Applicant’s lawyer made a submission that Mr A took his life because the Applicant was detained, and therefore other family members might take their lives if he is deported, but this is mere speculation and I do not accept it. The person suffering the most, and who will be impacted the most, is his wife and she is seeking professional help. She also knows her sister’s family are supportive as they have recently demonstrated that.

24. The Applicant’s eldest son, “Mr P”, is married with three children aged from one to four years old. His wife is a stay-at-home parent, and he is in his final year of a plumbing apprenticeship. The Applicant’s wife expects that when Mr P finishes his apprenticeship, his income will increase significantly. Mr P’s family currently rent an investment property owned by the Applicant and his wife for subsidised rent.

25. The Applicant’s daughter, “Ms Z”, is single with three children aged nine, 14 and 16. Their father is overseas and does not provide any support. Her family are living in a second investment property owned by the Applicant and his wife for subsided rent. She pays $400 per week instead of around $600 per week. She earns around $60,000 per year as a property manager. The Applicant has been helping financially, helping to pay for a private school close by as there is not a State school close by, paying the registration fees for sports and occasionally buying the family food and clothes. 

26. The Applicant used to take Ms Z’s children to and from school sometimes. Since he has been in detention, Ms Z takes the youngest or Mr P helps as he lives just up the road. Her older two children can make their own way.

27. The Applicant’s son, Mr J, has a partner and three children between one and three years old. He owns two investment properties and rents the place he lives in. He plays professional sport, and while a newspaper reported his salary this year to be $410,000, the Applicant’s wife said it was closer to $220,000. That is still substantial. I am satisfied that Mr J does not rely on the Applicant for financial or practical support.

28. While Mr J said (in written evidence) he had some mental health concerns a few years ago, there is no evidence of any mental health condition now. For reasons that I will come to later, I am satisfied that Mr J will give the Applicant some financial support in Tonga, which will have a negative impact on him financially, although I am not satisfied that it would cause financial hardship. 

29. Mr D is a property manager assistant, earning around $65,000 per year. He is not married, and he does not have any children. He recently moved out of the family home, and he was living in a group house before the Applicant was detained. Mr D has now moved back home to help the Applicant’s wife (Mr D’s biological mother). There is no evidence that this has caused him any disadvantage. 

30. The Applicant’s son, “Mr H”, has autism spectrum disorder level 3, global developmental delay, and speech and language delay. The Applicant used to take Mr H to work with him, and he sat inside or in the Applicant’s car and played or watched things on his phone. The Applicant’s wife mostly works at home, but when she has to work away from home, Mr H stays home playing PlayStation or watching YouTube. He also has frequent phone conversations with the Applicant, sometimes about Rugby League statistics for which he has an excellent memory. If Mr H does not get out much, he can sometimes act out with anger. Since the Applicant has been detained, his wife has taken a lot of time off work so she can take Mr H places.

31. Mr H has his own car and he feels comfortable to drive around the local area.  He is not very social, but he sometimes spends time with friends, and his brothers take him out with them when they can. He has not been to the gym since the Applicant was detained, as he used to take him. However, there is no apparent reason he could not go with Mr D, who also goes to the gym. In one of the Applicant’s statements, he said Mr H suffers from frequent fits and he cannot be left alone. However, there is no medical evidence of that, and he obviously is left alone a fair bit.

32. The Applicant’s wife has not applied for support from the National Disability Insurance Scheme (“NDIS”) to get help from trained carers because she does not think Mr H would accept people he does not know. That was the case when Mr H had some assistance in his school years. The NDIS option is there to explore if she chooses to.

33. Mr H has a four-year-old child from a short-term relationship. That child has autism level 3. The Applicant and his wife used to look after the child for a long weekend each week as Mr H is not capable of doing that, and the Applicant wanted Mr H to have time with his son. Now that falls to the Applicant’s wife. The child’s mother has applied for support from the NDIS and that application is pending.  Mr H also has a four-month-old son by a different lady and that child spends most of his time in her care. 

34. If the Applicant is deported, his wife will lose the income stream of about $160,000 per year that he brought in. She thinks she might also have to give up work and become Mr H’s full-time carer or she might lose her job because she has taken so much time off work. She currently receives around $110 per fortnight in supplements to the Carer Allowance,[4] and she manages the $960 per fortnight that Mr H gets in Disability Support Pension. She said that money does not pay for all of Mr H’s expenses, but the only substantial expenses she put forward was his car (which she paid for and he is paying her back) and supplies for his children when they visit. I do not accept that an amount of over $1,000 per fortnight is not enough for Mr H’s basic necessities, including his children.

    [4] She does not receive the actual allowance due to the income and/or assets test.

35. It is very likely that if the Applicant is deported, his wife will not be able to provide financial support to his children. She may well have to sell one or both investment properties which she has some equity in, or charge market rent, which means Mr P and Ms Z will have to make some adjustments so they can live within their means. I am not satisfied that this would cause anyone to suffer financial hardship.

36. The Applicant will be able to communicate with his family via electronic means from Tonga, as long as he can afford it. His family can also visit him in Tonga, money allowing, although his wife was frightened there when they visited in 2015, and she does not want to ever go back there.

37. The Applicant’s wife and two of his children (Mr P and Ms Z)[5] will be financially impacted by his deportation, especially his wife. His family will suffer the loss of his company and assistance, especially his wife and Mr H. His family will have to rely on each other for help, as they are currently doing. The grandchildren the Applicant spent time with will miss him, and they will no longer benefit from his financial assistance.

    [5] In addition to Mr J, already noted.

38. Overall, this Primary Consideration weighs very heavily against cancelling his visa.

    PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

39. The next Primary Consideration is the best interests of minor children in Australia. Here, I must determine whether cancelling the Applicant’s visa is or is not in the best interests of any children under the age of eighteen who are affected by the decision.

40. Deportation is obviously not in the best interests of the minor children in the Applicant’s life. Those children are his grandchildren who live in Australia. I accept that it would be in their best interests to have him here as he is a positive factor in their lives and he will continue to be.

41. They each have at least one parent fulfilling the parental role.

42. The Applicant has a more important place in the lives of Ms Z’s children as he was a father figure to them growing up. 

43. The Applicant would potentially be a part-time father figure to Mr H’s two children, although the elder one’s mother has re-partnered.

44. There is potential for the Applicant to communicate with these children via electronic means and for them to visit him. There is no information about the effect separation has had on them (except for Ms Z’s children)[6] and I note that some of the children are too young to have a meaningful relationship with the Applicant or feel his absence. Those who are old enough are undoubtedly upset by this and they will miss the Applicant and worry about him.

    [6] Words in bracket inadvertently omitted from ex-tempore reasons. The Applicant did put forward evidence relevant to the impact separation has had on Ms Z’s children – e.g. paragraphs 101 and 117.

45. If Ms Z or Mr P have to move house or cut down on expenses, that will have a knock-on effect on their children, although I am not satisfied that it would be substantial.

46. The best interests of the Applicant’s grandchildren, cumulatively, weighs to a limited extent against cancelling his visa.

47. I now turn to the Other Considerations.

    OTHER CONSIDERATION (b): EXTENT OF IMPEDIMENTS

48. I must take into account the extent of any impediments he would face in Tonga in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of Tonga. Specifically, I have to take into account his age and health, whether there are any substantial language or cultural barriers, and any social, medical or economic support available to him in Tonga. 

49. The Applicant is fifty-five years old. He is able bodied with a history of alcoholism, anxiety, and depression. He is not reliant on any medication for that currently. He does occasionally have counselling which he finds beneficial.  He probably suffers from ADHD or similar. He is deaf in one ear.

50. The Applicant lived in Tonga and went to school there until he was around eight years old or ten years old. He and his wife visited in 2015, and he could not understand Tongan, but people spoke to him in broken English. He was able to communicate enough to get around. I am satisfied that he would not face any substantial language or cultural barriers there.

51. The Applicant’s wife is concerned about his safety and also corrupt officials.  I accept that there is corruption. Travel advice from the Canadian and Australian Governments indicates that there is crime there, including theft, robbery, break-ins and assaults, especially after dark. The Australian advice indicates that crime is at the same level as expected in Australia. The Applicant and his family are worried that he will be homeless and unable to earn an income in Tonga,[7] as he is an unskilled worker with limited education, and he does not have any family land in Tonga.

    [7] Noted above that he no longer has an income stream from his business in Australia.

52. According to the Department of Foreign Affairs and Trade, Tonga has a small open economy that relies on remittances, tourism, agriculture and foreign aid. Construction and infrastructure projects are funded by donor grants. Agriculture is the leading productive sector with most exports being agricultural produce. Imports cover the full range of consumer and industrial goods.

53. The Applicant is able bodied and therefore could potentially work in the agriculture industry. His experience driving a forklift to unload cargo is relevant to import and export work. He speaks good English, which is relevant to the tourism industry. He also has experience in running his own small business. I am satisfied that he has skills that he could use to earn a living in Tonga, although I will not assume that he would immediately get work or that it would be well-paid.

54. The Applicant’s son, Mr J, earns a high income. He has previously paid for the Applicant to travel to New Zealand on multiple occasions to watch his matches. The Applicant thinks Mr J would help him if he could, but he would prefer to spend his money on his own family.

55. In a letter Mr J wrote, he credited the Applicant with having been his support since he was born and helping him fulfill his sporting dreams. Mr J said the Applicant helped him through some personal turmoil a few years back. He expressed concern about the Applicant being in a place without any help or financial or emotional support. I am satisfied that Mr J has the financial means and the will to provide the Applicant with the financial support he needs to establish himself and maintain a basic standard of living in the context of what is generally available in Tonga, and to have the means to communicate with his family in Australia.

1. I am satisfied that the Applicant will suffer emotionally and psychologically if he is deported. He will have the same access to social, medical, mental health and economic support as other citizens which, I think it is safe to assume, is nowhere near as good as in Australia. He will be able to join a church and obtain some support there. He will be able to communicate with his family – and he and they can support each other – as he has been doing while he has been in detention.

2. This other consideration weighs against cancelling his visa to a moderate extent. 

   OTHER CONSIDERATION (c): VICTIMS

3. Other Consideration (c) concerns any impact my decision could have on the Applicant’s victim or her family. The Applicant’s lawyer contended that CB’s situation has improved over time, where she has a long-term partner and is employed. He contended that therefore the Tribunal should place more weight on CB’s current situation than on the information in her Victim Impact Statement. This is misconceived.

4. First, this Other Consideration asks the Tribunal to consider any impact of the decision on the victim. There is no evidence before me about that, so this Other Consideration has to be neutral.

5. Second, where it is relevant to consider the impact of the offending on the victim, or the impact of future offending on future victims, that is exactly what the Tribunal should do – consider the impact of the offending. That is not mitigated by the extent that the victim has managed to heal many years later.

6. Third, the victim in this case is working full-time at a coffee franchise to support herself while she studies and cares for her mother who has tumours on her brain and relies on the Disability Support Pension. CB is not living an easy life. Any normality that a victim of crime manages to achieve years after the crime, does not work in favour of the offender in any conceivable way. 

7. This Other Consideration does not go for or against the Applicant.  

   CONCLUSION

8. The Applicant’s lawyer asked the Tribunal not to treat this as a retrial of the criminal proceedings and effectively pass a second sentence on him. That submission is also misconceived. It misconceives this entire process. The legislation and the Direction are very clear about why and how visas are cancelled on character grounds. It is not a punitive process. It is about the standard of behaviour that the Australian community expects of non-citizens who live in, or want to live in, our community. 

9. When I weigh all of the considerations, even the strong countervailing considerations are not enough to justify allowing the Applicant to keep his visa. The balance is in favour of exercising the discretion to cancel his visa. 

10. The decision under review is affirmed.

I certify that the preceding 141(one hundred and forty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy

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

Associate

Dated: 16 May 2024

Dates of hearing:

22 and 23 April 2024

Solicitor for the Applicant:

Mr Surenthren Mathavan

Migration Guru Pty Ltd

Solicitor for the Respondent

Mr Chris West and Ms Kavvya Mukkavilli

Sparke Helmore

ANNEXURE A – EXHIBIT LIST

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G	G-Documents (G1 to G20, 254 pages)	R	Various	21 February 2024
A1	Applicant’s Statement of Facts, Issues and Contentions (2 pages)	A	Undated	18 March 2024
A2	Witness Statement of Applicant (7 pages)	A	15 March 2024	15 March 2024
A3	Witness Statement of Applicant’s wife (5 pages)	A	15 March 2024	15 March 2024
A4	Applicant’s Evidence (AM1 to AM27, 91 pages)	A	Various	18 March 2024
A5	Applicant’s Evidence in Reply (AM28 to AM33, 11 pages)	A	Various	16 April 2024
A6	Applicant’s Closing Submissions (6 pages)	A	Undated	26 April 2024
R1	Respondent’s Statement of Facts, Issues and Contentions (18 pages)	R	5 April 2024	5 April 2024
R2	Respondent’s Tender Bundle (TB1 to TB5, 46 pages)	R	Various	5 April 2024