GTPT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 3246

GTPT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3246 (8 September 2021)
Division:GENERAL DIVISION
File Number: 2019/7944
Re:GTPT
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member Rebecca Bellamy
Date:8 September 2021
Place:Brisbane

The decision under review is set aside and substituted so that the Tribunal declines to exercise the discretion in s 501(1) of the Migration Act 1958 (Cth) to refuse the visa application.
.........................[SGD]..............................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – refusal of application for a Resident Return (Class BB) visa under section 501(1) - where the visa Applicant does not pass the character test – whether the discretion to refuse to grant the visa should be exercised – consideration of Ministerial Direction No. 90 – decision under review set-aside
LEGISLATION
Migration Act 1958 (Cth)
CASES –
FYBR v Minister for Home Affairs [2019] FCAFC 185.
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Member Rebecca Bellamy
8 September 2021
THE ISSUE BEFORE THE TRIBUNAL

The Applicant is a 62 year old citizen of the United Kingdom. He first arrived in Australia in 1967.[1]
[1] Exhibit T1 Section 37 T documents, T20 page 127; T23 page 131.
On 25 February 2019, he departed Australia without having first obtained a Resident Return visa. On 14 March 2019 he applied for a Resident Return (Class BB) visa (“visa application”).[2] On 7 November 2019 a delegate of the Minister (“the Respondent”), having concluded that the Applicant did not pass the character test, refused the visa application under section 501(1) of the Migration Act 1958 (“the Act”).[3]
[2] Exhibit T1 Section 37 T documents, T14 pages 95 to 103
[3] Exhibit T1 Section 37 T documents, T9 page 85.
On 3 December 2019 the Applicant sought review of that decision.[4] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[4] Exhibit T1 Section 37 T documents, T2 pages 3 to 11.
The hearing of this application proceeded on 10 and 11 May 2021. The Applicant gave evidence via videoconference and his wife gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Section 501(1) of the Act provides:
“The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.”
By the operation of s 501(6)(a) of the Act, the Applicant does not pass the character test because he has been sentenced to imprisonment for 12 months. Subsection 501(6) relevantly provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
Subsection 501(7) relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…
In April 2003, the Applicant was sentenced to a total of three years imprisonment. Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. I now turn to consider whether to exercise the discretion to refuse to grant the visa.
SHOULD THE DISCRETION TO REFUSE THE APPLICANTS VISA BE EXERCISED?
In considering whether to exercise the discretion in s 501(1) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[5]
[5] On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether or not to exercise the discretion to refuse to grant a non-citizens visa paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account. They are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. They are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests
Paragraph 7.2 provides that the primary considerations should generally be given greater weight than the other considerations and that paragraph 7.3 provides that one or more primary considerations may outweigh other primary considerations.
BACKGROUND AND OFFENDING
The Applicant was born in 1958 and he came to Australia with his family in 1967 when he was seven years old. After completing high school, he became a police officer in Queensland.
The Applicant was married for three years in the 1980s and he had a son from that marriage. He has not had any contact with that son since he went overseas with his mother.
The Applicant married “Mrs R” in 1990 and they had a son, “Child A”, in 1995.[6] They separated in 1999 or early 2000[7] and were divorced in 2001.
[6]     Exhibit R2, Respondent’s Updated Tender Bundle, R1, page 12.
[7]     The Applicant said it was 1999 but other sources say early 2000.
In 1993 the Applicant started building up a security and traffic control business while employed as a police officer. According to him, at that time police officers were allowed to do other work but the rules changed and, despite knowing the rules had changed, he continued carrying on his business.[8] As a result, in 1995 he was dismissed from the Police Service for breaching the code of conduct.
Passing valueless cheques
[8] Transcript, page 36, line 40 to page 37, line 6.
On 16 December 1997, the Applicant was charged with two counts of passing valueless cheques. There is little evidence about those charges and the Applicant denies them.[9] They were ultimately withdrawn in October 2004 by way of nolle prosequi.[10] I am not satisfied that the Applicant passed valueless cheques.
Indecent dealing
[9] Transcript, page 39, lines 8 to 16.
[10] Exhibit A1, Applicant’s Revised Unsworn Affidavit, Annexure BM2.
In 1988, the Applicant was charged with four counts of indecent dealing with a girl under the age of 14 years. Two counts related to periods in 1987 and those counts were withdrawn by way of nolle prosequi. The other two counts related to periods between 1979 and 1983 and those resulted in verdicts of not guilty.[11] There is no evidence before me about the factual allegations that gave rise to the charges. The Applicant said the alleged victims were his nieces, being the daughters of his older sister, “Mrs C”. He said Mrs C’s husband (the father of the nieces) hated the police because he was always in trouble with the police and he blamed the Applicant which resulted in the allegations being made. The Applicant denied the allegations. Mrs C is estranged from the Applicant and the other members of his family. When asked why, the Applicant said he was not sure but that her husband was a very “a very violent man and we wanted nothing to do with him”.[12] I am not satisfied that the Applicant committed offences against his nieces.
[11] Exhibit A1, Applicant's Revised Unsworn Affidavit, Annexure BM1.
[12] Transcript, page 38, lines 1 to 18.
According to the Applicant, in 1999 he moved out of the home he shared with Mrs R and Child A but afterwards he spent time at their home from time to time.[13]
Allegations of sexual abuse against Child A in 2000
[13] Transcript, page 30, lines 24 to 29.
On 15 April 2000, Mrs R told the police that the Applicant had committed an offence against Child A, on 24 March 2000. The police records indicate that she alleged that at approximately 6.00pm she left Child A alone with the Applicant. She returned home at around 10.30pm and found both asleep. She said she and the Applicant did not have a good relationship. The following day Child A was not able to stomach food and was sick and lethargic. On 29 March he said to her:
“Daddy hurts my wee wee”
“Daddy put his wee wee on my back, Daddy made his wee wee sick on the carpet, Daddy put his wee wee in my mouth and did water in my mouth”
“Daddy’s wee wee did sick in my mouth and it tasted disgusting”
“I am a little boy not a big boy, I want to be a little boy not a big boy”.[14]
[14] Exhibit R2, Respondent’s Updated Tender Bundle pages 22 to 25.
Police records further indicate that after these disclosures, Mrs R asked the Applicant to leave and live somewhere else, she took out an interim Domestic Violence Order and by the time of the report the Applicant had moved out. The police records indicate that on 31 March and 11 April Child A was interviewed by the police at the Child Abuse Office. He confirmed the account given by Mrs R and he confirmed his “wee wee” to be his penis. On 16 April 2000, the Applicant was interviewed by the police and he did not make admissions.[15]
[15] Exhibit R2, Respondent’s Updated Tender Bundle, R2, page 24
According to police records dated 7 May 2000 a withdrawal of complaint had been received, and on 12 June 2000 Mrs R attended the police station and requested that no further action be taken in relation to the complaint. As a result, no further action was taken by police.[16] It is not apparent from those records when Mrs R first withdrew the complaint.
[16] Exhibit R2, Respondent’s Updated Tender Bundle, R2, page 24.
In the hearing the Applicant denied these allegations. He said he could not recall being interviewed by the police on that occasion.[17] He also denied that he had ever been refused access to Child A or that there was any Domestic Violence Order made before the subsequent complaints that were made in November 2001.[18] There is no evidence before me of a Domestic Violence Order having been made in 2000. Further, in a separate matter arising from complaints made in November 2001, the Court of Appeal accepted that the Applicant had regular access to Child A after he and Mrs R separated in early 2000 until allegations of abuse were made in November 2001.[19] These matters call into question the reliability of what Mrs R told the police. There are other matters that cause me concern about Mrs R’s reliability as a witness that I will address later in these reasons.
Allegation of sexual assault in January 2001
[17]    Transcript, page 30, lines 5 to 13.
[18]    Transcript, page 38, lines 20 to 40.
[19]    Exhibit R2, Respondent’s Updated Tender Bundle, R1, page 12.
According to police records, on 13 January 2001, a woman reported a sexual assault.[20] She and an associate were living at a shelter for homeless and troubled women. She said that on the evening of the 13 January 2001 a person had offered to give them a lift home and had stopped the car at Kangaroo Point where the associate got out to go to the toilet. The complainant alleged that she was alone with the man in the back seat, that he took off her clothes and his own, fondled her genitals and breast and performed oral sex on her. She screamed and her associate, hearing her scream, ran to the vehicle and helped her to flee. The complainant grabbed the man’s shorts which she later left in a laneway nearby. Her associate recorded the registration number of the vehicle. She and her associate later contacted the police. The police recovered the shorts that the complainant had taken from the man, and they matched the vehicle registration to a vehicle registered to the Applicant. The complainant withdrew her complaint the following day.
[20] Exhibit R2, Respondent’s Updated Tender Bundle, R2 pages 57 to 60.
The Applicant denied these allegations which, he said, he was not aware of until they were raised in these proceedings. He said at that time, the car registered in his name was not in his possession, and that his ex-wife and her boyfriend had it.[21] Separately to that, there are some aspects of the complainant’s account that require explanation such as: how it transpired that her associate only returned to the vehicle when she screamed and why she, being naked and fleeing from a sexual assault, paused to take the man’s shorts. It is not an account that can, in isolation, be readily accepted. For that reason and the uncertainty about who had possession of the vehicle, I am not satisfied that the Applicant committed the alleged assault.
Drink driving in July 2001
[21] Transcript, page 27, lines 44 to 46.
The Applicant committed a drink driving offence on 18 July 2001. He was observed by a witness slumped forward in his seat in a vehicle with his seatbelt on and the keys inside the vehicle.[22] His blood alcohol concentration was 0.083%. According to the Applicant, he fell asleep in his car and was not driving it.[23] This explanation is consistent with the police evidence and I accept it.
Rape of Child A in November 2001
[22] Exhibit R2, Respondent’s Updated Tender Bundle, R2 pages 31 to 33.
[23] Transcript, page 39, lines 34 to 36.
Around 28 November 2001, Mrs R reported to the police that the Applicant had sexually abused Child A on 24 November 2001. According to police records, she then cut off the Applicant’s access to Child A.[24] Child A was examined at a hospital on 30 November 2001. The police records note that the “examination was normal”[25] which I take to mean there was nothing unusual found.
[24] Exhibit R2, Respondent’s Updated Tender Bundle, R2, page 24.
[25] Exhibit R2, Respondent’s Updated Tender Bundle, R2, page 64.
According to Mrs R, on 28 November 2001 Child A made disclosures of abuse to her. The evidence in the subsequent trial was that, on 29 November 2001, Mrs R invited a friend over and told him that Child A wanted to tell him something. Child A then told him about the abuse. On 30 November 2001, a different friend took Mrs R and Child A to the hospital for Child A to be examined. On 3 December 2001, Mrs R and Child A visited that friend and, according to the friend, Child A “just started telling” her things about the abuse.[26] That same day, Child A was interviewed by the police, and he gave an account consistent with having been sexually abused by the Applicant.[27]
[26] Exhibit R2, Respondent’s Updated Tender Bundle, R1, pages 17 to 18.
[27] Exhibit R2, Respondent’s Updated Tender Bundle, R2, pages 64 and 65.
On 8 April 2003, the Applicant was convicted of rape and sentenced to imprisonment for three years. In addition, he was convicted of two offences of “indecent treatment of children under 16 years (12 years) (lineal descendant/guardian/carer)” and sentenced to imprisonment for two years for each offence. The sentences were ordered to be served concurrently. He was acquitted of a fourth charge.
The Applicant unsuccessfully appealed the convictions to the Court of Appeal. The following passages in the judgment of McMurdo P set out the relevant background.
“The appellant and his wife, the mother of the victim, were married on 25 August 1990. Their son was born in mid-1995. The couple separated in early 2000 and the appellant’s wife had the day-to-day custody of their son, with the appellant exercising regular access. He visited fortnightly and on occasions stayed overnight. The boy and his mother lived in a unit in suburb 1 after leaving the matrimonial home in 2000. When the appellant visited, the boy’s mother would go elsewhere, jogging and walking. In about August 2001, the boy and his mother moved to a unit in suburb 2 where the offences occurred.
On Saturday, 24 November 2001, the appellants wife attended a wedding, leaving her son in the care of the appellant at her home. She left at 1.30 pm returning the following morning at 8.00 am.
The prosecution case turned on the evidence of the son who was seven at trial and six when the offences occurred. His evidence included a video recorded interview with police on 3 December 2001 contained in three tapes recorded between 12.55 pm and 2.25 pm; a tape-recorded interview at the boy’s home later that same afternoon in which he pointed out where the incidents occurred, and a further video recorded interview with police on 18 December 2001. These tapes were admitted as evidence in the trial… The boy also gave brief oral evidence at the trial.”[28]
[28] Exhibit R2, Respondent’s Updated Tender Bundle, R1 page 12.

The facts of the offending were recounted in the sentencing remarks of the learned trial Judge which are extracted below:
“You have been convicted of three extremely serious offences involving sexual misbehaviour committed upon your own son. Each of the offences was committed in the course of one series of events on the one evening. There was evidence of there being some background and I make it plain that I cannot punish you for any matters for which you have not been convicted, but that was a matter that the jury was entitled to take into account in ultimately deciding whether they were satisfied beyond reasonable doubt of your guilt in respect of each of the offences.
…
Count one involved you putting your penis into the child’s mouth and I deal with you on the basis that you moved it in and out of his mouth in one sense and you did that to ejaculation and the child spat that ejaculate into a towel of some kind and you told him that he should swallow it next time. Count three, of which you have been convicted, involved your sucking the complainant’s penis and count four involved your essentially rubbing your, no doubt, erect penis on his back and ejaculating and rubbing the ejaculate onto his body.
These offences are disgusting enough in themselves, they involve a gross breach of trust, not only of your son, but also the trust of your wife who at least trusted you, perhaps despite what may have gone before, to look after the child overnight whilst she was absent at a wedding. I need to take into account in fixing sentence the extreme youth of the complainant in this case compared with others… I deal with the victim impact statement with some circumspection and, as I’ve indicated, am not in any way critical of it and one can understand the mother’s reaction in the circumstances and, of course, as I’ve said, the offences are very serious. Although there isn’t a great deal of firm detail about this, one can expect the need for counselling in the possibility always remains in cases like this that a child will be emotionally scarred for many years if not the whole of his life. That possibility is there and it cannot be firmly determined now but I need to take account of that possible prospect.
…
…I note that you have demonstrated no remorse what so ever (sic). You insisted upon your rights to a trial. And what that means is that whilst I of course do not increase the penalty by reason of that, I cannot reduce it and give you the benefit of the demonstration of any remorse and the benefits of the plea of guilty specifically saving the expense to the community and saving further distress of the people who were close to you, your wife and the child…”[29]
[29] Exhibit R2, Respondent’s Updated Tender Bundle, R1 271 to 274.
The Applicant has, at all times, maintained that he is innocent of the offences. He said Mrs R made them up as payback because he left her, that she coached Child A and that she is “very vindictive”.[30] After his release from prison, he sought sole custody of Child A as he believed Mrs R was not as fit to care for him as he was. He alleged that it was likely that another family member had sexually abused Child A.[31]
[30] Transcript, page 38, lines 43 to 46.
[31] Exhibit A1, Applicant's Revised Unsworn Affidavit, Annexure BM7, page 7.
The evidence before the Tribunal raises some doubt in my mind that the Applicant committed these offences. However, I must make findings that are consistent with the convictions[32] and even if I could make alternative findings I would be very reticent to do so as both the District Court and the Court of Appeal were in a much better position than the Tribunal to determine what occurred. Given the jury’s verdict and the Court of Appeal’s decision, I shall apply the Direction on the basis that the Applicant committed the three offences against Child A.
[32] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.
I now return to the alleged sexual abuse of Child A in March 2000. For the purpose of the sentencing proceedings for the November 2001 offences, Mrs R provided a victim impact statement on behalf of Child A.[33] That statement started with the words “On the 28^th of November 2001, [Child A] told me of the abuse he endured at the hands of his father…” Mrs R went on to imply, without being specific, that the Applicant sexually abused Child A on many occasions over an extended period, for example she referred to fishing, cricket and bike riding, and stated that “His father would use these activities as an alibi for time he used to abuse [Child A]”. Mrs R described emotional and psychological trauma suffered by Child A, along with behavioural manifestations of that trauma, for example:
“Since the rapes, [Child A] has lived in fear of seeing [the Applicant] again…When we go out [Child A] is continually searching faces in the crowd for his father…On occasions when [Child A] thought he had seen his father, he has taken off in fear, trying to get away and hide”
…
“If a child is trying to become friendly, [Child A] will comment…that the child is trying ‘to sex’ with him”
[33] Exhibit R2, Respondent’s Updated Tender Bundle, R1, page 281.
Mrs R did not indicate the period during which the alleged continuous abuse took place although it would have had to have been before 28 November 2001 as that is when Mrs R says Child A disclosed that he had been abused and the Applicant had no access to Child A after that date. One might think that Child A’s alleged reactive behaviour would have alerted Mrs R to abuse occurring. However, Mrs R did not indicate that she had any knowledge or suspicion of any abuse prior to Child A’s disclosure to her on 28 November 2001. Nor did Mrs R mention the prior complaint or why the Applicant continued to have access to Child A, including why she invited him to mind Child A overnight, after that prior complaint. This all undermines the reliability of that prior complaint. The learned sentencing Judge said he regarded the victim impact statement with some circumspection. I do not consider it to contain reliable evidence of any prior offending (or prior reactive behaviour) and it undermines Mrs R’s prior complaint.
Child A himself told the police in March and April 2000 that the Applicant had sexually abused him. He later described the November 2001 abuse to the police. McMurdo P found his evidence about the November 2001 offending convincing. However, the appeal decision indicates that after the marriage broke down in early 2000, Mrs R and Child A moved into a unit in “Suburb 1”, then in around August 2001 they moved to a unit in “Suburb 2”. Her Honour noted that on 3 December 2001, Child A had given an account of abuse to the police and he had then told them he was talking about events in Suburb 1. Later he said “exactly the same thing” had happened at Suburb 1 as had happened at Suburb 2 and there was no difference. When asked to recount events that had happened at Suburb 1, he seemed to be recounting the events of 24/25 November 2001 rather than a different incident. When Child A was told it was ok if he did not remember events at Suburb 1, he said he did not remember. He also alleged that he had been abused in the matrimonial home “lots of times” but the few details given suggested he was recounting the facts of Count 1 (which occurred in Suburb 2).
Her Honour further noted that by the third tape (of interview) Child A seemed tired and to have lost concentration and was unable to give any details of prior episodes of sexual impropriety, and when pressed, simply repeated the details of the charged offending.
On 18 December 2001, when Child A was interviewed at his home and asked about abuse at Suburb 1 he said it was the same as at Suburb 2 and when questioned further he provided sketchy details that appeared to be the same as the account of the charged abuse. Child A said the Applicant had done “lots of things” to him at Suburb 1 and Suburb 2.[34]
[34] Exhibit R2, Respondent’s Updated Tender Bundle, R1 pages 15 to 19.
I do not have a tape or transcript of Child A’s police interview in early 2000. The evidence he gave of abuse in his home prior to the charged incidents is weak, and there is no evidence from him of abuse outside his home.
Overall, there is not sufficiently strong, coherent evidence of prior sexual abuse to support a finding that it occurred.
Breach of bail
Before his incarceration, the Applicant had formed a relationship with Ms P. She had two young children. While on bail, he moved in with Ms P and her children which was a breach of his bail conditions as he was required to live at a different nominated address. When this was discovered by the Department of Communities, Child Safety and Disability Services, they told Ms P that if the Applicant did not move out immediately, her children would be removed from her. Her children were, in fact, removed from her care and placed with her parents for six weeks. They were returned when that Department was satisfied that Ms P would not allow the Applicant to live with her or allow the children to come into contact with the Applicant.[35] On 29 August 2003 the Applicant was convicted of breach of bail and fined $500.
Relationship with Ms P
[35] Exhibit A4, Judgment of the Federal Circuit Court dated 8 August 2017, page 5 at page 18.
When the Applicant was released from gaol in 2006, he was placed on the sex offenders register and he reported yearly. He has now been removed from the register.[36]
[36] Exhibit T1, Section 37 Documents, T12, pages 91 to 93.
While the Applicant was in gaol, Ms P had set up and started operating a traffic control company although she had no prior industry experience. She relied on the Applicant’s advice and, upon his release he took over as operations manager.
At the end of 2011 the Applicant and Ms P separated. The Applicant resigned from the business in October 2012 as the “atmosphere was not very good”.[37]
[37] Transcript, page 26, lines 35 to 41.
On 9 January 2013, the Applicant commenced litigation in the Federal Circuit Court seeking a division of property of the relationship. Ms P denied that there ever had been a domestic relationship. On 26 February 2013, Ms P made a report to the police in which she alleged that the Applicant had engaged in behaviour that could broadly be described as sexually harassing from 2009 to 2011 and that he had sexually assaulted her on 24 February 2011. She told the police that she had recently been served documents from the Family Court in relation to her assets, and that she was going to make a private DVO application after leaving the station.[38]
[38] Exhibit R2, Respondent’s Updated Tender Bundle, pages 35 to 36.
In December 2013, Ms P told the police that the Applicant had driven by her house.[39] She later alleged that on 24 April 2014, while she was in a hotel having a meal, the Applicant had walked into the restaurant and stood next to her table until she complained to management and asked for him to be removed.[40]
[39] Exhibit R2, Respondent’s Updated Tender Bundle, page 40.
[40] Exhibit R2, Respondent’s Updated Tender Bundle, pages 46 to 47.
The Applicant was never charged in relation to any of Ms P’s allegations and he denied them.[41] He gave evidence that Ms P had once tried to run him and his current wife, “Ms J”, off the road. Ms J gave evidence that Ms P had tried to drive as close to them as she could so he would be charged, while they tried to get away.[42] Their evidence appears to be about the same incident and I accept that Ms P acted maliciously on that occasion. The Applicant said Ms P did everything in her power to try to do terrible things.[43]
[41]    Transcript, page 14, lines 25 to 30; page 26, lines 35 to 48.
[42]    Transcript, page 54, lines 37 to 43.
[43]    Transcript, page 27, lines 1 to 7.
The Applicant claimed that Ms P made the allegations in response to him having, the day before, commenced family court proceedings. Ms P first made allegations against the Applicant around six weeks after he commenced proceedings, which to my mind establishes a sufficient temporal nexus. Further, she mentioned the property proceedings to the police despite their apparent irrelevance to the matters she reported.
In 2017, the Federal Circuit Court decided that there had been a de-facto relationship between the Applicant and Ms P. In that decision, the court made several adverse credibility findings against Ms P and rejected an allegation by her that sexual relations between her and the Applicant had been against her will after 2008, citing contradictory evidence. The court also found the Applicant to have been “lacking some reliability” in his evidence[44], however it is apparent from the judgement as a whole that he was considered to be a more credible witness than Ms P.
[44] Exhibit A4, Judgment of the Federal Circuit Court dated 8 August 2017, page 2, at page 4.
Given all of the evidence before me, I am not satisfied that Ms P’s allegations have any substance.
Visa application
The Applicant married Ms J in 2016.[45] In 2018 he obtained a United Kingdom passport, and on 25 February 2019 he travelled with Ms J to New Zealand. He did not realise that he needed a Resident Return visa in order to re-enter Australia, although he now acknowledges that he should have made the necessary enquiries. When attempting to board a flight back to Australia at Auckland airport he was advised that entry was denied because he did not have a Resident Return visa.[46] The Applicant had never had any visa problems until then.[47] The Applicant said that no-one had ever raised an issue about his convictions until the Respondent refused to grant the visa.[48] It does not appear that the convictions had previously resulted in the Respondent taking action concerning the Applicant’s visa status. This is unsurprising as, over the years, there have been developments in the way visa holders and visa applicants are assessed in terms of character and some of those developments have placed increased emphasis on crimes against children and sexual crimes.
[45]    Exhibit T1 Section 37 T documents, T21 page 128.
[46] Exhibit T1 Section 37 T documents, T12, pages 91 to 93.
[47]    Transcript, page 16, lines 23 to 33.
[48]    Transcript, page 20, lines 29 to 37.
On 15 March 2019, the Applicant applied for a Resident Return visa. In the visa application he was asked “Has the applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)?” In response he wrote “Yes Indecent Assault 2003”.[49] The form also asked: “Has the applicant ever been found guilty of a sexually based offence involving a child (including where no conviction was recorded)?” In response, he wrote “Yes Indecent Assault 2003”.[50]
[49] Exhibit T1 Section 37 T documents, T14, page 98.
[50] Exhibit T1 Section 37 T documents, T14, page 99.
Accordingly, he failed to disclose that he had been convicted of two indecent assault offences (rather than one) and of rape. The Minister contends that the Applicant provided misleading information on the visa application by only referring to the indecent assault and not the more serious offence of rape. The Applicant claims that he did not declare the rape conviction because it was a long time ago and he had forgotten.[51] I find it hard to believe that a person would forget a rape conviction. However, it is a case of watering down the seriousness of his offending rather than failing to declare it at all. The Applicant subsequently provided a National Police Certificate that included all of the offences.[52]
[51] Transcript, page 31, line 3 to page 32, line 5.
[52] Exhibit T1 Section 37 T documents, T10.
The Applicant initially stayed in New Zealand with Ms J’s mother while Ms J returned to Australia.[53] Ms J visited him a few times. In January 2020, he moved to the United Kingdom. The Applicant remains living in the United Kingdom.
[53] Exhibit T1 Section 37 T documents, T12, pages 91 to 93.
As the Applicant was not able to return to Australia, Ms J took on a lot of his responsibilities with respect to a cricket club he had been heavily involved in and with respect to caring for his mother. This placed her under a lot of stress and strain. In the end the cricket club was taken over by another club. Ms J still helps the Applicant’s mother. Before leaving Australia, the Applicant was employed by a traffic control company owned by a long-term friend. The Applicant wishes to return to Australia so he can be back with Ms J, help his mother and resume his employment.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction relevantly specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)…;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)…;
(iv)…;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)….
The Applicant committed three sexual crimes against his six year old son who was in his sole care at the time and was therefore very vulnerable. According to the Direction the offences are to be considered very serious. The learned sentencing Judge described them as “extremely serious”, “disgusting” and involving a gross breach of trust. I respectfully agree. The Applicant was sentenced to a total of seven year imprisonment, although it was effectively three years, which reflects serious offending.
The Applicant has not offended frequently. His offending consists of one offence of drink driving in July 2001, the offending episode against Child A in November 2001 and a breach of bail in 2002. He has not committed any offences since 2002. There is not a trend of increasing seriousness. Nor is there repeated offending behaviour.

The Applicant initially failed to declare the rape conviction in the visa application, which was misleading, however I place little weight on this as he disclosed the other offending and he subsequently provided his National Police Certificate which he did not have when he completed the visa application form.
Primarily due to the extreme seriousness of the offending against Child A, paragraph 8.1.1(1) of the Direction weighs very heavily in favour of exercising the discretion to refuse the visa application.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non- citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date.
While the Applicant was convicted of drink driving, there is no evidence that he actually drove while over the legal blood-alcohol limit or that he intended to. I do not have regard to this offence when considering the harm from further offending. He breached his bail by living at an unapproved address where children lived however there is no evidence that he harmed them while he was there.
The harm from rape and indecent assault against a child cannot be understated. It is uncontroversial that sexual abuse of a child typically causes immediate and long-term emotional and psychological harm to the victim, and that such harm can lead to a range of self-harming behaviour and unhealthy relationships throughout the victim’s life, and even the abuse of others. This all has a ripple effect in the community. A victim’s family members are often impacted, knowing their loved one has been seriously harmed. This kind of conduct, and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated is unacceptable.
Likelihood of engaging in further criminal or other serious conduct
If the Applicant is granted a visa, he intends to stay in Australia on a permanent basis, so I will consider the likelihood of him engaging in further criminal or serious conduct in the long-term.
The Applicant did not offend until he was in his forties. While he was in gaol, he was assessed as low risk and transferred to a low security facility.[54] He has not offended since 2002, nor are there any reports in the police records before me of any further allegations of inappropriate behaviour towards children. According to the Applicant, he never breached any reporting conditions following his release[55] and there is no evidence to the contrary, so I accept that.
[54] Transcript, page 18, lines 36 to 41.
[55] Exhibit T1, Section 37 T documents, T23, pages 143 to 151.
The Applicant has not engaged in any rehabilitation for sex offenders. He was not allowed to do rehabilitation courses in gaol because he maintained his innocence.[56] Accordingly, there has been no enquiry into what predisposed him to commit the offences.
[56] Transcript, page 18, lines 30 to 35.
When asked what he had done to rehabilitate himself, the Applicant said he worked really hard in the business to make it a success, including training hundreds of people in traffic control, and he worked hard in the community through his involvement with the cricket club. He tried to be a model citizen and he served the community as best he could doing those things.[57]
[57] Transcript, page 16, lines 34 to 44.
The Applicant’s legal representative put forward a report from Mr Barry Kirker, clinical psychologist, dated 10 August 2020.[58] Mr Kirker conducted an assessment to determine the Applicant’s risk of reoffending, character, mental health status, response to treatment (if any), and the psychological impact on him should he have to permanently leave Australia. He interviewed the Applicant on 21 December 2019 and again on 13 May 2020 after further information was provided.
[58] Exhibit A1, Applicant's Revised Unsworn Affidavit, Annexure BM7.
Mr Kirker initially assessed that the Applicant had a low risk of re-offending based on the first interview and the materials provided at that time. However, he said that it became apparent prior to and during the second interview that information provided by the Applicant could not be relied upon and that his self-report was of questionable validity. This seems an overly strong statement, although I note that there are some examples of unprincipled behaviour in the evidence before the Tribunal: being the Applicant’s knowing breach of the police code of conduct and his initial failure to declare the rape conviction in his visa application.
Mr Kirker’s function was not to conduct a forensic assessment of the evidence and determine its reliability, but to have regard to the evidence when assessing the Applicant. Accordingly, I do not intend any criticism when I point out that some of the matters that Mr Kirker took into account are not supported by the weight of the evidence. One example is Mr Kirker’s view that the Applicant had a pattern of problematic sexual behaviour, whereas the only alleged episode of problematic sexual behaviour that is supported by reliable evidence is the offending against Child A in November 2001. Another example is found in Mr Kirker’s statement that:
“[The Applicant] also did not acknowledge any culpability in relation to issues in intimate partner relationships which had led to two separate proceedings in the Family Court. Whenever challenged about his behaviour in such areas he typically deflected focus away from himself and onto other parties or focused on technicalities rather than matters of substance.”[59]
[59] Exhibit A1, Applicant's Revised Unsworn Affidavit, Annexure BM7, page 4
There is no evidence that the Applicant was “culpable” in relation to his issues with Ms P. The evidence is that he resorted to litigation because she refused to acknowledge a de facto relationship that the Federal Circuit Court ultimately found had existed.
Mr Kirker noted that the Applicant had told him that there had been no concerns raised about his sexual behaviour prior to the November 2001 allegations, however in 1987 he was charged with sexual abuse against two nieces and in 2000 he was accused of sexual offending against Child A. Further, Mr Kirker indicated that the Applicant was being denied access to Child A in 2000 and that Child Safety had concerns at that time, thus there were multiple concerns raised about the Applicant prior to the November 2001 allegations. I do not accept that the Applicant was being denied access to Child A in 2000 or that the Government in charge of the safety of children had concerns at that time. The Applicant’s apparent glossing over of the prior allegations (which did not result in conviction) is perhaps similar to his disclosure of indecent assault but not rape in the visa application.
Mr Kirker stated that physical violence was a feature of the Applicant’s second marriage and that there were recorded allegations of violence in his de-facto relationship with Ms P. However, there is no probative evidence of physical violence in any of the Applicant’s marriages or his relationship with Ms P.
Mr Kirker thought the fact that prior to his imprisonment, the Applicant formed a relationship with a woman who had two prepubescent children, and he continued the relationship after his release, indicated that he lacked insight into his potential risk. The Applicant told Mr Kirker that he currently makes sure he is not alone with children, not because of any temptation, but because he wants to avoid any further allegations against him. The Applicant told Mr Kirker that he never had any sexual interest in his son, or any children and he has a clear sexual preference for adult females.
Mr Kirker opined that the Applicant’s overall level of psychological insight was below average for a person of his background and that he lacked remorse and responsibility in relation to his sexual offending. He said denial of offending per se is not correlated with increased risk of reoffending. He added that ignoring the matters related to the family court proceedings, all of the Applicant’s interactions with courts or police pre-date his convictions, and that offending over the age of 60 is generally less frequent.
However, he identified a number of dynamic risk factors including problematic sexual behaviour, lack of responsibility and blaming others, interpersonal aggression (of which I do not accept there is any evidence), lack of empathy, poor judgement, and problems in close/intimate relationships. Furthermore, he identified that the Applicant remains untreated for sexual offending and he is not interested in a relapse prevention plan.
Given the length of time without reconviction and the Applicant’s age, Mr Kirker assessed the Applicant as being at a low risk of sexual reoffending and overall being at a low to medium risk of future harmful behaviour. He said those that would be most at risk are those in a close relationship with him who are presently his wife, Ms J, and any vulnerable child relatives of hers. He thought the risk to the community in general was low.
Mr Kirker did not give evidence in the hearing. As Mr Kirker’s assessment of the Applicant took into account some matters adverse to the Applicant that I do not accept are accurate, I do not give it determinative weight although I have regard to it.
In terms of those who Mr Kirker considers are most at risk, Ms J has six grandchildren between the ages of three and 23. She is aware of the Applicant’s convictions. She said she and the Applicant have participated in birthdays and Christmas celebrations with family members and during those times she has never observed him behaving in a way that would cause her any concern.[60] She said at the cricket club, the Applicant avoided roles where he would be in contact with children because he did not think it would be appropriate given his convictions. No-one at the cricket club or anyone else she knows has ever raised concerns about the Applicant being around children.[61]
[60] Exhibit T1, Section 37 T documents, T24, page 153.
[61] Transcript, page 54, lines 6 to 32.
Ms J has a 20 year old granddaughter, “Child G”. She is severely mentally and physically disabled, with a mental age of around eight.[62] She is not a child like the victim of the Applicant’s offending, but given her disabilities she is certainly vulnerable. Ms J regularly looks after Child G. Before he left Australia, the Applicant sometimes assisted Ms J. Child G’s father provided a statutory declaration[63] in which he stated that Ms J and the Applicant provide a great deal of support to him, his siblings and their children. Ms J gave evidence that Child G’s parents think the Applicant is a “lovely man” and they appreciate his help.[64]
[62]    Transcript, page 52, lines 35 to 44.
[63]    Exhibit T1, Section 37 T documents, T37, pages 252 to 253.
[64]    Transcript, page 53, lines 12 to 28.
In the hearing, the Applicant was asked about his contact with children. He said he is never alone with children, even at the cricket club where there are a lot of children as there are always parents there with them[65] and “They’re not my children, so why would I be on my own with them?”[66]
[65] Transcript, page 19, lines 34 to 37.
[66] Transcript, page 19, lines 44 to 48.
Ms J said the Applicant has never threatened her or pressured her for sex or committed any acts of domestic violence against her.[67] She said further that:
“I have known [the Applicant] for 6 years. During that time…I have observed him interact with his Staff, clients and members of the community. I observed he is always respectful and even-tempered. He shows genuine care for people and gives 100% in his job and the Cricket Club. [The Applicant] does not smoke, does not take illegal drugs and is a social drinker.”[68]
[67] Transcript, page 55, lines 1 to 8.
[68] Exhibit T1, Section 37 T documents, T24, page 153.
Several people known to the Applicant have provided written evidence in support of him. The Applicant’s brother provided a statutory declaration in which he said he became a single parent in the 1980s with three children to look after without any help from the children’s mother. The Applicant and their younger sister, “Ms S”, helped look after his children while he looked for work. When he obtained employment, they picked the children up from school and looked after them in school holidays.
A Mr Van De Vrugt provided an affidavit in which he stated that in 2001, the Applicant separated from his former wife and came to live with him, his wife and their two children who were aged 13 and 15 (a boy and a girl). The Applicant’s bedroom was next to the children’s rooms and at no time did they have any concerns the children’s well-being, and their children have never complained about the Applicant’s behaviour towards them.[69] Mr Van De Vrugt also stated that in early 2002, the Applicant met Ms P and lived in the house she shared with her children for around a year. Ms P’s children loved the Applicant and treated him like a father.[70]
[69] Exhibit T1, Section 37 T documents, T26, page 158.
[70] Exhibit T1, Section 37 T documents, T26, page 158.
Others who have provided written evidence are: the lawyer who represented the Applicant in the criminal proceedings concerning Child A, Mr Marriner[71] and his wife[72] who have known the Applicant since 2003, Mr Hagen[73] who lived with the Applicant for approximately 12 months in 2015 after a relationship breakup and had his nine year old daughter stay every second weekend and during school holidays, and Mr Quill[74] and Mr Cuthbertson who have both known the Applicant since the early 1990s and were aware he was imprisoned for sex offences[75]. These people all speak to the Applicant’s good character and Mr Hagen said he never saw the Applicant behave inappropriately towards his daughter or engage in any inappropriate behaviour.
[71]    Exhibit T1, Section 37 T documents, T26, pages 161 to 164.
[72]    Exhibit T1, Section 37 T documents, T26, pages 165 to 169.
[73]    Exhibit T1, Section 37 T documents, T26, pages 170 to 172.
[74]    Exhibit T1, Section 37 T documents, T26, pages 173 to 176.
[75]    Exhibit T1, Section 37 T documents, T26, pages 177 to 179.
The Applicant has not undergone any formal sex offender rehabilitation. However, there is no evidence to suggest that in the 13 years that he spent in the Australia community after his release from gaol he has re-offended or engaged in any inappropriate behaviour. This is strong evidence of rehabilitation. While the Applicant maintains his innocence, he has sufficient insight to know that it is not appropriate for him, given the convictions, to be in situations when he is alone with children and he does not wish to have further allegations made against him. He is trusted to be around a severely disabled young woman by the people who love her most. Several people who have known the Applicant for many years and are aware of his convictions have given sworn evidence that they have never known him to act inappropriately towards children or at all. The Applicant does have a history of failed intimate relationships with some acrimonious break-ups, however Ms J has no concerns about his behaviour towards her. Mr Kirker assessed the risk of further sexual offending as low.
Taking all of the evidence into account, I think the risk of the Applicant re-offending is at the very lower end of low such that it is only a remote risk. I am not satisfied that there is a real risk that the Applicant will commit further sexual offences.
Mr Kirker assessed a low to medium risk that the Applicant would engage in “future harmful behaviour”. Apart from the sexual offences, the Applicant has committed one drink driving offence (which did not involve any actual driving) and one breach of bail. No particular harm came from these offences and it is difficult to see potential harm from further offending of this kind. Further, the Applicant has not offended since 2002 I do not accept that there is more than a very low risk that he will engage in similar behaviour in the future.
Conclusion: Primary Consideration 1
Despite the extreme seriousness of the sexual offences, given the Applicant poses no appreciable risk of harm to the Australian community, this Primary Consideration weighs only moderately in favour of exercising the discretion to refuse the visa application.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or 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 (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.

The Applicant’s offending against Child A comes within the meaning of family violence in the Direction. I have already addressed most of the matters I am required to address under this Primary Consideration in my discussion under Primary Consideration 1, and I will not repeat that discussion here.
I would add that, one facet of family violence is that it often occurs in locations that should be safe places such as the family home or, more particularly, the victim’s own room. These places are no longer safe for the victim once abuse has occurred there. The Applicant abused Child A in his home, in his room.
As the Applicant continues to deny the offences, he has not accepted responsibility for the offences, demonstrated an understanding of the impact on Child A, or made any efforts to address the factors that contributed to the offending. However, he said he sought to be a contributing member of society through his business and work in the community, and he is careful to avoid being alone with children.
Conclusion: Primary Consideration 2
Primary Consideration 2 weighs moderately in favour of exercising the discretion to refuse the visa application.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
The Applicant does not claim that revocation is in the best interests of any minor child in Australia and the evidence does not indicate that there are any minor children whose best interests would be affected by this decision. This Primary Consideration is not relevant.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that she would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kinds, relevantly:
(a)acts of family violence; or
(b)…
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled;…
(d)…;
(e)…;
(f)….
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185.
Analysis – Allocation of Weight to this Primary Consideration 4
Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:
·the Applicant moved to Australia when he was seven years old. He is now 62 years old;
·the Applicant first offended 34 years after moving to Australia;
·the Applicant committed sexual offences against his (then) six year old son;
·those offences are extremely serious and utterly abhorrent. The Australian community has no tolerance for such offending;
·the Applicant committed two other offences which were much less serious;
·there is no more than a remote risk that the Applicant will commit further sexual offences or offences of a kind that would cause harm to members of the Australian community;
·the Applicant has a long employment history, that includes training hundreds of people to work in traffic control, and since his release from gaol he has engaged in extensive voluntary work in the community through his involvement with a cricket club;
·for the vast majority of his time in Australia, the Applicant lived a law-abiding life;
·if he is allowed to return to Australia, the Applicant intends to live with his wife, resume his employment and help to look after his elderly mother; and
·if the Applicant is not allowed to return to Australia, it will adversely affect the Applicant’s mother, two of his siblings and his wife (addressed below under Other Considerations).
Conclusion: Primary Consideration 4
The nature of the Applicant’s offending is such that the Australian community would expect that he should not hold a visa so Primary Consideration 4 weighs in favour of exercising the discretion to refuse the visa application. Balanced against that, he has many factors in his favour, so the weight I allocate to this Primary Consideration is on the heavy side of moderate.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
(a) International non-refoulement obligations
The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This Other Consideration is not relevant.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Respondent contended that this Other Consideration does not apply to the Applicant, who is already in the United Kingdom, because the words “if removed” refer only to a non-citizen who has not yet returned to the receiving country. However, it would seem artificial to ignore impediments faced by a non-citizen to establishing themselves and maintaining basic living standards only because the non-citizen is already in that country facing those challenges. I therefore respectfully decline to accept that submission.
The Applicant is a 62 year old man who does not have any medical or diagnosed mental health conditions. However, he claimed to be suffering mental health problems as a result of being stuck in the United Kingdom where he cannot see long-term prospects for himself due to his age, lack of employment history in the United Kingdom and lack of social and family support. [76] The Applicant knows that if he cannot return to Australia he will never see his family, including his dying mother, again. I accept that the Applicant has no known family in the United Kingdom.
[76] Exhibit T1. Section 37 T documents, T23, pages 143 to 145.
The Applicant claims he has no superannuation left.[77] He and Ms J own a home and she is in the process of selling a unit she owns to pay for legal fees and to financially support the Applicant[78]
[77] Transcript, page 15, lines 15 to 30.
[78] Transcript, page 57; page 59 lines 10 to 14.
The Applicant has been employed picking and packing at a warehouse since June 2020.[79] He is eligible for unemployment benefits and he was in receipt of those for around a month before he got a job.[80] He is at the end of his working life, in need of income, and working in a low paying job involving manual labour.
[79] Transcript, page 21, lines 1 to 30.
[80] Transcript, page 21, lines 35 to 40.
Although there is no diagnosis of mental health problems, given all of these matters, one can readily accept that someone in the Applicant’s position would likely experience emotional and psychological hardship. Indeed, Mr Kirker opined that permanently relocating to the United Kingdom would be a major adjustment and the Applicant would experience notable decompensation in his mental health. The United Kingdom has a public health system and I am satisfied that the Applicant could access psychological support.
The Applicant has managed to re-settle in the United Kingdom in terms of finding accommodation and employment, although he is living at subsistence level in the context of what is generally available to citizens in the United Kingdom, he has no social support there and his mental health has deteriorated.
This Other Consideration (b) weighs moderately against exercising the discretion to refuse the visa application.
(c) Impact on victims
This Other Consideration (c) requires me to assess the impact of the decision on members of the Australian community, including victims of the Applicant’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the Applicant has been afforded procedural fairness.
There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (c) is therefore neutral.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Applicant came to Australia at the age of seven and, before he departed in February 2019, he had lived in Australia for 51 years which included his teenage years and his entire adult life. He first offended 34 years after arriving in Australia and committed no further offences after 2002. Paragraph 9.4.1(2)(a) of the Direction weighs heavily in his favour.
It is not disputed that the Applicant was employed for many years as a police officer and that he spent many years after that working in the traffic control industry including training people to work in that industry.[81] There is ample evidence before me that the Applicant did a great deal of voluntary work for a local cricket club including being President for five years, obtaining grants to repair and refurbish the facilities, and volunteering his spare time to prepare the turf, wicket, mow the outfield areas, clean the clubhouse, organise players and man the canteen every week.[82] He was a contributing member of the Australian community for over 50 years. Paragraph 9.4.1(2)(a) of the Direction weighs heavily in his favour.
[81] Exhibit T1, Section 37 T documents, T23, page 140.
[82] Exhibit T1, Section 37 T documents, T18, T19, T24 and T35.
The Applicant’s immediate family members who live in Australia and with whom he maintains a relationship are: Ms J, his mother, one sister and a brother. He also has some cousins and some in-laws, [83] however they are not immediate family and the Applicant does not appear to have close relationships with them.
[83] Exhibit T1, Section 37 T documents, T23, page 138
The Applicant’s mother is 90 years old, widowed and in poor health, including dementia. She suffers from lymphoma which is terminal.[84] She lives alone in the home she shared with her late husband, which is not close to any of her children or Mrs J. Since the Applicant’s father passed away 16 years ago, the Applicant has repaired and maintained her home so she could remain living there.[85] In 2017, the Applicant’s mother broke her hip and she lived with, and was cared for by, the Applicant and his wife in their home for around eight months.
[84] Exhibit T1, Section 37 T documents, T16, page 107.
[85] Exhibit T1, Section 37 T documents, T16, pages 105 to 106.
The Applicant’s mother has carers helping her for around four hours per day, including showering her.[86] Otherwise she is assisted by the Applicant’s wife, his sister, and a nephew who visits on weekends and helps out by mowing the lawn and doing some housework.[87] Ms J visits the Applicant’s mother around once a month and stays for a week or she visits every second month she stays for two weeks.[88]
[86]    Transcript, page 8, lines 34 to 40.
[87]    Transcript, page 23, lines 1 to 24.
[88]    Transcript, page 50, lines 20 to 23.
According to a statutory declaration from the Applicant’s brother,[89] his ability to assist their mother is limited due to a back injury which limits the distance he can drive and the tasks he is able to perform. He and his wife help care for their grandchildren and they take his wife’s mother to medical appointments. As he lives in a rural area without access to emergency services, it is not practical for his mother to live with him and he and his wife cannot care for her full-time with their other commitments. His sister, Ms S, cannot look after their mother because she works for the family business with her husband and cares for her grandchildren after school and during school holidays. Her daughter often needs assistance with her children due to the special needs of her husband following an accident in 2016 in which he suffered burns to 80% of his body. There are media articles before me about this accident.[90] Ms S also suffered severe burns in that fire. Their other sister, Ms C, is not in contact with the rest of the family.
[89] Exhibit T1, Section 37 T documents, pages 243 to 247.
[90] Exhibit T1, Section 37 T documents, T34, pages 237 to 240.
The Applicant’s mother does not want to go to a nursing home and her family do not want that either. The Applicant’s plan is that he and Ms J would sell their home and live with her if she would accept that. Otherwise they would travel from their home to her home to help her as much as they could.[91]
[91] Transcript, page 60, lines 29 to 35.
Ms J gave evidence that the Applicant’s mother:
“said she is holding on until [the Applicant] can come home because he has always supported her and looked after her and now I am in that role with him not being here. And she is hanging on, she told me the last visit that she needs him home, she needs him back with her. She can’t imagine not being able to say goodbye before she passes and because she is terminal she doesn’t know how long she has.”[92]
[92] Transcript, page 50, lines 40 to 46.
I am satisfied that the Applicant’s mother is elderly, infirm and suffering from terminal cancer. I accept that she does not want to live in a nursing home and that is understandable. However, it appears that some kind of assisting living facility is an option if the Applicant is not able to return to Australia and his mother cannot get the level of care she needs in her home. I am satisfied that the Applicant’s absence is causing his mother emotional hardship as is the thought that she will not see him again before she dies. Further, in his absence, Ms J is bearing the burden of providing some care for his mother.
Ms J was not originally going to give evidence in the hearing as the Applicant thought it would be too upsetting for her. However, she did give evidence and I found that her evidence was detailed and unbiased. According to Ms J, since the Applicant has been away, she has suffered from depression and she was taking anti-depressants (Lexapro) for a time because she was crying all the time and breaking down.[93] There is certificate before me from Dr Geoffrey Smith, apparently a general practitioner, referring to Ms J’s “deepening depression”.[94] Ms J said she had never previously suffered from depression.[95] She is lonely without the Applicant, and even though she has her children and her grandchildren she misses the Applicant terribly.[96]
[93]    Transcript, page 48, lines 8 to 14.
[94]    Exhibit A1, Applicant's Revised Unsworn Affidavit, Annexure BM4.
[95]    Transcript, page 48, lines 20 to 21.
[96]    Transcript, page 56, line 45 to page 57, line 9.
Ms J said the depression affected her nervous system and because of that she needed a lot of treatment on her gallbladder which was ultimately removed. She also suffers diverticulitis when she gets upset, which has happened a lot more since the Applicant has been away.[97] She has been hospitalised around eight times since his departure.[98] The Applicant was not able to support her through these health problems, except to speak with her and her doctors.[99] Ms J and the Applicant are in daily communication.[100]
[97]    Transcript, page 48, lines 23 to 33.
[98]    Transcript, page 48, lines 43 to 44.
[99]    Transcript, page 49, lines 13 to 16.
[100] Transcript, page 10, lines 39 to 41.
The Applicant’s mother insists on Ms J taking her to medical appointments when she visits, rather than relying on her carers.[101] Ms J said it is difficult getting the wheelchair in and out of the car and that the Applicant’s mother is quite heavy to push around.[102] Ms J has arthritis in her lower back and every time she gets back to Brisbane after taking the Applicant’s mother around her back is aching.[103] I accept this but it seems to be something easily remedied as there are, according to Ms J, carers available to do that job.
[101] Transcript, page 61, lines 23 to 27.
[102] Transcript, page 51, lines 1 to 23.
[103] Transcript, page 51, lines 24 to 30.
If the Applicant cannot return to Australia, Ms J considers that she will have to move to England but she does not want to leave her family, particularly Child G. According to Child G’s father, he works late on a regular basis and sometimes his wife does too. When this happens, Ms J assists with Child G’s needs and is therefore her safety and support. According to the Applicant, sometimes he and Ms J would have Child G for a few days to give her parents a break.[104] Child G is not totally dependent on her parents and Ms J: she has a carer through the National Disability Insurance Scheme [105], and her maternal grandparents and maternal aunt sometimes look after her.[106] While I am not satisfied that Child G would be without adequate care if Ms J were to leave Australia, I accept that Ms J wants to help care for Child G and give Child G’s parents some relief. She will experience some emotional hardship if she has to leave Australia to be with the Applicant. Ms J said she does not want to go overseas.[107] She does not know anybody in the United Kingdom.[108] I note that, given the current pandemic, it may not be possible for Ms J to travel to the United Kingdom in the foreseeable future.
[104] Transcript, page 13, lines 25 to 35.
[105] Transcript, page 56, lines 36 to 44.
[106] Transcript, page 64, lines 35 to 43.
[107] Transcript, page 49, lines 17 to 28.
[108] Transcript, page 50, lines 1 to 5.
I am satisfied that the Applicant’s absence has caused Ms J emotional hardship and put her under strain, which has contributed to the deterioration of her physical and mental health, and that this is likely to continue as long as the Applicant remains unable to return to Australia.
The Applicant’s brother and Ms S indicated in their written statements their support for him and I am satisfied that they would suffer some disappointment if he could not return to Australia.
The documentary evidence, much of it sworn evidence, provided by friends and former colleagues of the Applicant, indicate that he has some strong social ties to the community.

The Applicant’s social and familial links, and the impact on Ms J, his mother and his siblings of a visa refusal decision weigh heavily in his favour under paragraph 9.4.1(2)(b) of the Direction.
Impact on Australian business interests
There was some evidence that the traffic control business the Applicant used to work for has declined and drastically and reduced its staff because of his absence, and that his return would see an expansion of the business as it was the Applicant that used to secure contracts and run operations. However, it does not follow that people lost their livelihoods due to the Applicant’s absence or that his return would lead to the creation of jobs. The Applicant gave evidence that traffic control work is contract based so:
“you might have a contract for five years which employs 20 people and when that contract finishes or there’s not another one they just-they’re transient, they just move to another traffic control company who’s got the contracts”[109]
[109] Transcript, page 41, lines 1 to 11.
Accordingly, I am not satisfied that the Applicant’s continued absence from Australia would have a sufficient impact on Australian business interests to warrant the allocation of weight under this Other Consideration.
Conclusion: Other Consideration (d)
Overall, I am satisfied that the Applicant’s links to the Australian community weigh heavily against refusal of the visa application.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction. This matter is finely balanced. On one hand, the offences against Child A are so abhorrent that the Australian community would expect that the Applicant would not be granted a visa. However, there is no more than a remote risk of further offending of a like nature (or of any harmful offending) and refusing to grant the visa will result in considerable detriment to the Applicant’s mother and his wife. It is also relevant that refusal would result in hardship to the Applicant, in terms of the matters discussed in Other Consideration (b), who has spent over 50 years in the Australian community, for the most part, living a law-abiding life, and has made a significant contribution within his community. These matters tip the balance against refusing the visa application.
Consequently, the Tribunal declines to exercise the discretion in s 501(1) of the Act to refuse the visa application.
DECISION
The decision under review is set aside and substituted so that the Tribunal declines to exercise the discretion in s 501(1) of the Migration Act 1958 (Cth) to refuse the visa application.

I certify that the preceding 144 (one hundred and forty four) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

.........................[SGD]...............................................
Associate
Dated: 8 September 2021

Dates of hearing: 10 and 11 May 2021

Counsel for the Applicant

Solicitors for the Applicant:

Mr R Hii

Holding Redlich

Solicitor for the Respondent
Mr J Kyranis

Sparke Helmore

ANNEXURE A - EXHIBIT LIST

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 37 T documents (paged 1-274)

R

-

24 January 2020

R1

Respondent’s Updated Statement of Facts, Issues and Contentions (paged 1-12)

R

12 April 2021

12 April 2021

R2

Respondent’s Updated Tender Bundle (paged 1-65)

R

-

12 April 2021

A1

Applicant's Revised Unsworn Affidavit (paged 1-8) with the following annexures:

-    BM1 – Verdict and Judgement Records (x2) dated 30 July 2020 (3 pages)

-    BM2 – Verdict and Judgement Record dated 20 October 2004 (1 page)

-    BM3 – National Police Certificate dated 31 January 2020 (1 page)

-    BM4 – Letter from Dr Geoff Smith dated 9 October 2019 (1 page)

-    BM5 – Order of the Federal Circuit Court of Australia AND Registration Confirmation Statement (7 pages)

-    BM6 – Email dated 30 June 2020 (2 pages)

-    BM7 – Psychological Assessment Report date 10 August 2020 (paged 1-10)

A

-

5 May 2021

A2

Applicant’s Reply to the Respondent’s Statement of Issues, Facts & Contentions (paged 1-3)

A

-

6 November 2020

A3

Applicant’s Updated Statement of Facts, Issues and Contentions (paged 1 - 9)

A

5 May 2021

5 May 2021

A4

Judgment of the Federal Circuit Court dated 8 August 2017

A

8 August 2017

10 May 2021

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 37 T documents (paged 1-274)	R	-	24 January 2020
R1	Respondent’s Updated Statement of Facts, Issues and Contentions (paged 1-12)	R	12 April 2021	12 April 2021
R2	Respondent’s Updated Tender Bundle (paged 1-65)	R	-	12 April 2021
A1	Applicant's Revised Unsworn Affidavit (paged 1-8) with the following annexures: - BM1 – Verdict and Judgement Records (x2) dated 30 July 2020 (3 pages) - BM2 – Verdict and Judgement Record dated 20 October 2004 (1 page) - BM3 – National Police Certificate dated 31 January 2020 (1 page) - BM4 – Letter from Dr Geoff Smith dated 9 October 2019 (1 page) - BM5 – Order of the Federal Circuit Court of Australia AND Registration Confirmation Statement (7 pages) - BM6 – Email dated 30 June 2020 (2 pages) - BM7 – Psychological Assessment Report date 10 August 2020 (paged 1-10)	A	-	5 May 2021
A2	Applicant’s Reply to the Respondent’s Statement of Issues, Facts & Contentions (paged 1-3)	A	-	6 November 2020
A3	Applicant’s Updated Statement of Facts, Issues and Contentions (paged 1 - 9)	A	5 May 2021	5 May 2021
A4	Judgment of the Federal Circuit Court dated 8 August 2017	A	8 August 2017	10 May 2021