HBMB and Minister for Immigration and Citizenship
[2012] AATA 436
•11 July 2012
[2012] AATA 436
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1617
Re
HBMB
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 11 July 2012 Place Melbourne 1.The reviewable decision, being the decision of the Minister for Immigration and Citizenship made 19 April 2012 to cancel the Applicant’s BN Subclass 136 Skilled Independent (Migrant) Visa, is set aside.
2.In substitution it is decided that the Applicant’s BN Subclass 136 Skilled Independent (Migrant) Visa not be cancelled under subsection 501(2) of the Migration Act 1958 (Cth) by reason of the Applicant’s conviction of criminal offences in the County Court of Victoria on 18 February 2009.
...........[sgd].............................................................
Deputy President J W Constance
CATCHWORDS
CITIZENSHIP AND IMMIGRATION – cancellation of a BN Subclass 136 Skilled Independent (Migrant) Visa – Direction [no. 41] – Visa refusal and cancellation under s 501 Migration Act 1958 (Cth) – character test – substantial criminal record – primary considerations – the seriousness and nature of the conduct – the risk that the conduct may be repeated – other considerations – family ties, the nature and extent of any relationships – decision under review set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 35
Migration Act 1958 (Cth) ss 499(1), 499(2A), 501(2), 501(6) and 501(7)
Sex Offenders Registration Act 2004 (Vic)
CASES
Jason Schuster-McFadyen v Minister for Immigration and Citizenship and Administrative Appeals Tribunal (2011) 124 ALD 68; [2011] FCA 1303
Rosson v Minister for Immigration and Citizenship [2011] FCA 194; (2011) 191 FCR 390
SECONDARY MATERIALS
Direction [no. 41] – Visa refusal and cancellation under s 501
REASONS FOR DECISION
Tribunal: Deputy President J W Constance
Date: 11 July 2012
INTRODUCTION
In 2007 Mr B entered Australia on a BN Subclass 136 Skilled Independent (Migrant) Visa and has resided in Australia continuously since that time.
On 19 April 2012 the Minister for Immigration and Citizenship cancelled Mr B’s visa as the Minister reasonably suspected that Mr B did not pass the character test set out in the Migration Act 1958 (Cth) and Mr B had failed to satisfy the Minister that he passed the test.
Mr B has applied to the Tribunal to review the decision of the Minister.
For the reasons which follow the decision under review will be set aside.
FACTUAL BACKGROUND
Unless otherwise stated the following findings of fact are based on the evidence of Mr B.
Mr B was born in the United Kingdom in 1978. He grew up and was educated there. He met his wife, Ms B, in 1996 and they married in 2003.
Mr B and Ms B immigrated to Australia in February 2007. Mr B entered Australia as the holder of a BN Subclass 136 Skilled Independent (Migrant) Visa. He is a trained teacher and holds tertiary qualifications in accounting. He gained these qualifications before he entered Australia.
Upon settling in Australia the couple purchased land and built a home. They both gained employment, Mr B as a teacher in secondary schools.
For a period of approximately two months in mid-2008, Mr B had a sexual relationship with one of his female students, who was 15 years of age at the time.
On 18 February 2009, in the County Court of Victoria, Mr B was convicted of the following offences:
oCount 1 – indecent act with a child under 16 years;
oCount 2 – indecent act with a child under 16 years;
oCount 3 – sexual penetration of a child under 16 years;
oCount 4 – sexual penetration of a child under 16 years;
oCount 5 – sexual penetration of a child under 16 years;
oCount 6 – sexual penetration of a child under 16 years;
oCount 7 – sexual penetration of a child under 16 years;
oCount 8 – sexual penetration of a child under 16 years;
oCount 9 – possession of child pornography.
The following sentences were imposed:
oCount 1 – 6 months imprisonment;
oCount 2 – 12 months imprisonment;
oCount 3 – 3 years imprisonment (the base sentence);
oCount 4 – 2 years imprisonment;
oCount 5 – 18 months imprisonment;
oCount 6 – 18 months imprisonment;
oCount 7 – 18 months imprisonment;
oCount 8 – 2 years imprisonment;
oCount 9 – 12 months imprisonment.
The total effective sentence was fixed at four years and six months and the non-parole period was fixed at three years.[1] The maximum term of imprisonment which could have been imposed in respect of each of counts 3 – 8 inclusive was 15 years. At the time he was convicted Mr B’s details were recorded in accordance with the Sex Offenders Registration Act 2004 (Vic) and he became subject to mandatory reporting for the rest of his life.
[1] Exhibit A19.
During the latter half of 2011 (whilst he was still in prison), Mr B took part in a sex offender program, the Modular Management & Intervention Program. This program was facilitated by two psychologists, Ms Buttigieg and Ms Shott.[2] Mr B participated in the entire course of 37 three hour sessions.[3]
[2] Exhibit A37.
[3] Exhibit R2.
The design of the program is stated to be as follows:
The Modular Management and Intervention Program (MMIP) is a group-based intervention designed to target sexual offending behaviour. It is based on international best-practice principles and has the capacity to be individualised to the needs of each participant. The program offers practical ways of understanding offending, including helping participants admit more fully what they have done, helping them take responsibility for their offences, and providing them with practical ways in which to tackle these problems.[4]
[4] Exhibit R2, p. 2.
Mr B was released on parole on 29 January 2012. Following his release he resided at the home of a friend as his own home was in the vicinity of a school and as a result was not a suitable residence in accordance with the conditions of his parole. He sought employment and made enquiries about additional training to assist him in gaining employment.
On 11 April 2012 a delegate of the Minister cancelled Mr B’s visa and Mr B was placed in detention.
THE RELEVANT LEGISLATION
Subsection 501(2) of the Migration Act 1958 (Cth) provides:
(2) The Minister may cancel a visa that has been granted to a person 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.
Subsection 501(6) paragraph (a) 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));
Subsection 501(7) paragraph (c) 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;
The power of the Tribunal to review the decision to cancel Mr B's visa is provided by Section 500. Under subsection 499(1) the Minister has given written directions (Direction [41] which commenced on 15 June 2009) as to the exercise of the power to review the decision. Subsection 499(2A) provides that these directions must be complied with.
THE CHARACTER TEST
Mr B concedes that he does not pass the character test as he has a substantial criminal record in accordance with subsection 501(7).
DIRECTION [41]
In Part B of Direction [41] the Minister has set out considerations to be taken into account when a decision-maker (in this case the Tribunal) is not satisfied that a person passes the character test and therefore has to decide how to exercise the discretion to either cancel or refuse to cancel, a visa.
The Minister has determined two types of considerations:
(a)primary considerations, which must be considered;[5]
(b)other considerations, which may be relevant and, if so, must be considered.[6]
The various considerations are set out in the Direction; I shall refer to the particular considerations relevant to this application later in these reasons. Generally, the other considerations should be given less weight than that given to the primary considerations.[7]
[5] Direction [41] para.10.
[6] Direction [41] para.11.
[7] Direction [41] subpara.11(2).
THE PRIMARY CONSIDERATIONS
Primary consideration 1: the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence – paragraph 10(1)(a)
Included in the factors relevant to assessing the level of risk of harm to the community are the seriousness and nature of the relevant conduct and the risk the conduct may be repeated.[8]
[8] Direction [41] para.10.1.
The seriousness and nature of the conduct – paragraph 10.1.1
The Direction provides, as unquestionably is the case, that all offences perpetrated against a child (particularly sexually-based offences) are considered serious.[9] The sentence imposed is considered indicative of the seriousness of the offender’s conduct to the community.[10]
[9] Direction [41] subpara.10.1.1(2)(b).
[10] Direction [41] subpara.10.1.1(3).
In her Reasons for Sentence delivered in the County Court on 18 February 2009,[11] Her Honour Judge Hampel said, in part:
…
Sexual abuse of children and young people is always serious. There are some significant aggravating features in your case. A was your pupil and you were in a position of trust. It was clear that you knew that she was infatuated with you. Although, when you were interviewed with the police you said – and to some extent the language in the Crown summary suggests – that there was a “relationship” between the two of you it is abundantly clear, and I want to make it abundantly clear it is not a relationship of equals. It was you, and you alone, who had the responsibility of managing a situation where you, and you alone were confronted by an infatuated child who did not have the maturity of life experience to manage the situation. You, by contrast, are a mature man, sexually experienced, educated and resourceful. You had what appeared to be a stable relationship with your wife and were in a position to understand the inequality of power between the two of you and the utter inappropriateness of nurturing and developing that situation and allowing it to develop and continue in the way it did.
…
In addition, what you did was teach this young girl dishonesty and deceit in the development and maintenance of the relationship. She knew you were married and she characterised this as an affair. It was you who created the false MySpace account for her. It was you who fanned her feelings for you and you maintained a steady flow of communication with her, creating or engineering circumstances where you could be alone with her.
You knew she was only 15. You had looked up her age on the school records, before the first act of sexual intercourse with her. You discussed with her the fact that you knew it was illegal to do so, because she was under age. Thus your conduct also engendered in her a sense that she was complicit in what is your wrongdoing and your wrongdoing alone. Although you admitted it only reluctantly, it was clear that the pornographic images you had of A were sent to you with active encouragement from you and that in exchange and as further encouragement you sent her a topless shot of yourself.
[11] Exhibit A19, paras 18, 19 & 20.
I agree with the submission of the Minister that Mr B’s crimes were “very serious and utterly appalling.”[12] Not only were they offences against a child, they were offences against a child entrusted to Mr B’s care as her teacher. He committed numerous sexual offences against her and encouraged her to provide him with pornographic images of herself which he stored with images of other children. The offending only stopped when it was detected. He has had a profound effect on the victim and her family, in all probability an effect from which they will never fully recover.
[12] Respondent’s Statement of Facts and Contentions para.23.
One factor which does weigh slightly in Mr B’s favour is that the Court imposed a sentence of three years imprisonment in respect of each of the more serious offences when the maximum penalty available was 15 years imprisonment in each case. This indicates that the Court did not consider that the offences were of such seriousness to warrant penalties within the upper levels of those available to it to impose.
The seriousness and nature of Mr B's conduct are such that, had there been no other factors to consider, I would have had no doubt that his visa should be cancelled and that he should be deported.
The risk that the conduct may be repeated – paragraph 10.1.2
In accordance with paragraph 10.1.2 a person’s “previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re‑offending.” Factors said to be “particularly relevant” are a recent history of convictions, the extent of rehabilitation already achieved and the prospect of further rehabilitation and evidence of a person having breached judicial orders.
The Direction provides further guidance in assessing the risk that the conduct may be repeated. Direction 10.1.2(2) provides:
The flowing factors are to be considered as particularly relevant to this assessment:
(a) a recent history of convictions, which should be considered as indicating an increased risk of re-offending;
(b) evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and
(c) evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.
Evidence of Mr Newton, Psychologist
Mr Newton is an experienced psychologist who has specialised in the assessment and treatment of offenders, including sex offenders. He assessed Mr B in November 2008, January 2009 and June 2012 at the request of his legal representatives. Mr Newton provided reports dated 16 January 2009[13] and 7 June 2012[14] and gave evidence.
[13] Exhibit A14.
[14] Exhibit A15.
On 16 January 2009, Mr Newton reported, in part:
…
Insight
In his discussion with me, [Mr B] was able to demonstrate a developing understanding of the issues associated with his offending. For instance he could discuss how he failed to take account of the emotional and psychological immaturity of the victim and had instead focussed only on the fact that she was physically mature. He said that he recognised that this had been a significant failing on his part.
Secondly, [Mr B] was able to discuss the issues regarding his violation of the victim’s trust and the power dynamic between them. He said that he recognised that his position as a teacher ought to have imposed particular responsibilities upon him and that he felt ashamed that he had not lived up to these responsibilities.
…
Risk Assessment
In evaluating the risk for sexual recidivism it is important to have regard to both dynamic and stable risk factors. Dynamic risk factors represent factors germane to the individual’s context, psychological functioning or environment which increase the risk of sexual offending. They are typically a target of treatment or other intervention and tend to vary from one point in time to another. By contrast, ‘stable’ risk factors are based in either the personality of the offender or their developmental history, or are reflected in the characteristics of the offending itself. Stable risk factors tend not to change over time. The degree of risk can also be modified by the presence of ‘protective’ factors.
In order to evaluate the stable risk factors in this case, I completed the STATIC-99 for [Mr B]. This is a brief actuarial instrument which allows the evaluator to calculate the level of risk posed by a sexual offender and the probability of recidivism to sexual offending. Its accuracy has been confirmed in multiple studies across diverse sexual offending populations in a range of countries and situations. It is among the more commonly used risk assessment instruments in the field of sexual offending and is routinely used in sex-offender assessment both in Australia and internationally.
[Mr B’s] scores on this instrument place him in the ‘Low Risk’ category for recidivism. His offending against an unrelated victim was identified as the main ‘stable’ risk factor in this case. In contrast, his age, his participation in a long term adult relationship, the lack of any violence in his offending, his prior good character and the absence of any previous criminal offending on his part are all factors correlated with lower rather than higher risk of recidivism.
The only dynamic risk factor identified in [Mr B’s] case are his poor social skills. In contrast, his cooperation with the authorities, his growing insight into the factors underpinning his offending and the absence of any significant psychological instability are all considered to be protective factors.
On the basis of all the factors considered in this review, I concluded that [Mr B’s] overall risk of recidivism to sexual offending would be low.
In his report of 7 June 2012 Mr Newton again reviewed the stable and dynamic factors in relation to Mr B. In relation to the protective factors he said:
…
In terms of protective factors, [Mr B] will be subject to the requirements of Sex-Offender Registration for life. Moreover, the deterrent aspects of sentencing continue to act as protective factors in his case. In addition, further protection could be conferred by his participation in the ‘Maintaining Change’ program. Given the progress he has made in treatment to date, there are reasonable grounds for concluding that the protective benefit of such matters is not insignificant.
Mr Newton again concluded that Mr B’s risk of recidivism was in the low risk range. He also expressed the opinion that Mr B does not suffer from paedophilia. He expressed the same opinion in his earlier report.
Having re-assessed Mr B in 2012, Mr Newton gave evidence that there were two key dynamic factors which he considered, namely Mr B’s personality and his cognitive distortion of the capacity of post-pubescent girls to make decisions. In relation to each of these factors Mr B had received treatment and his progress had been recognised. He was now able to recognise these factors and the damage they caused. Taking into account all the factors and the facts relating to the child pornography charge, Mr Newton assessed the risk of recidivism at less than 10 per cent.
Sex Offender Program Case Notes
The Case Notes [15] kept by Ms Buttigieg and Ms Shott show that Mr B engaged fully in this program.
[15] Exhibit A37.
Treatment Summary – Sex Offender Programs
At the completion of the course by Mr B, Ms Buttigieg reported in part:
…
Overall, [Mr B] evidenced a high level of motivation to make changes that would help him to live a healthy lifestyle. Indeed, his homework was always of a high quality and indicative that he had to put a lot of thought and effort into it. He was also observed by facilitators and group members, to make an overt and emotional connection to material being discussed, particularly in relation to his offending and challenging life events. Moreover, he demonstrated insight into his offence process and high-risk factors and an understanding of the function that his offending served at that time. [Mr B] was also observed to provide considered and reflective responses to the material being discussed and developed good insight into his own and other offending behaviour.
…
[Mr B] acknowledged a number of goals throughout treatment, particularly goals surrounding his emotional management. He recognised that a major risk was using an avoidant coping style. In his relapse prevention plan, he also highlighted using assertive communication and activities that increase self-esteem. [Mr B] was observed to be eager and motivated for behavioural change that would help him to live a healthy lifestyle and he appeared to challenge himself in this regard. Indeed, he expressed that going to prison had been beneficial because it meant that he had to attend treatment and reflect on his life and the changes he had to make to be happy. As a result, [Mr B] demonstrated an increased awareness of his risk factors and developed mitigating strategies.
…
ASSESSMENT OF RISK MANAGEABILITY
Based on the above information regarding treatment, it is the author’s opinion that [Mr B] appears to have improved his overall risk of manageability as a result of his participation in the program.
OUTSTANDING TREATMENT ISSUES/RECOMMENDATIONS
[Mr B] has completed the MMIP and has demonstrated gains throughout treatment. It is recommended that he would benefit from referrals and support with the following:
·Referral to the Maintaining Change Program as offered through Sex Offender Programs.
·To have no direct or indirect contact with his victim or their family.
·To have no unsupervised contact with children under the age of 18 years.
Ms Buttigieg applied an actuarial measure (known as Static-99) and reported that on this basis Mr B was placed in the moderate-low risk category for recidivism. She noted that an individual’s risk may be higher or lower depending on other factors (such as the dynamic factors referred to previously) which are not measured by this instrument.
Reasons for Sentence
In her Reasons for Sentence Her Honour Judge Hampel[16] stated, in part:
I make these comments. First, the relationship stopped after two months because it was detected, not for any other reason. Second, the possession of child pornography suggests that there is at least, and as you have elsewhere acknowledged, some level of interest in post pubescent but underage girls. So, whilst I accept the opinions that you fall in the lower, rather than higher, risk of recidivism category and that your prospects for rehabilitation are good, these opinions must be somewhat qualified by those two matters I have identified.
[16] Exhibit A19, para 26.
Evidence of Mr B
Mr B impressed me as an honest witness who has benefitted from the time he has spent in prison and the assistance he received (particularly through the Sex Offenders Program) whilst in prison. I am satisfied that he now has a better understanding of the reasons which caused him to offend, the effect on his victim and the consequences of his actions, than he did at the time of his offending.
I am satisfied of the facts set out in the following seven paragraphs based on the evidence of Mr B.
At the time of committing the offences Mr B knew that his conduct was illegal and immoral. He now understands the power imbalance that existed between his victim and himself and that he had justified his actions on the basis that his victim was sufficiently mature to make her own decisions. He now realises that this was incorrect. He has gained an understanding of the ongoing consequences for his victim and her family and for his family and himself.
At the time of the offences Mr B’s relationship with his wife was affected by his undue dependence upon her and his view that his wife would “always look after” him.[17] His marriage was under strain and he had considered separating from his wife shortly before the offences were committed. The counselling he received in prison and the continued support of his wife has strengthened the marriage and the prospects of the marriage continuing are now better than they were before he was imprisoned. At the same time he acknowledges the need to re-establish his wife’s sense of trust in him. Also he acknowledges that his wife has decided that if he returns to the United Kingdom she will not accompany him as she is well-established in Australia, is very happy in her employment and wishes to continue the life-style she enjoys here.
[17] Transcript 27.06.12.
Mr B now realises that he must take full responsibility for his own actions, but that he can, and should, seek help from others when needed. He has gained in self-confidence and in his sense of independence.
During the time between his release on parole and his being taken into immigration detention, Mr B worked with his case worker and contacted an employment agency with a view to finding employment. He completed a responsible service of alcohol course and was about to start a truck driving course when he was taken into detention. If he is free to do so, he intends taking part in the program “Maintaining Change” arranged for those who have been released from prison.
Although Mr B can never return to teaching he has a tertiary qualification in accounting and he has expressed an interest in setting up a personal training business. I am satisfied that Mr B is capable of gaining employment should he remain in the Australian community.
Mr B understands and has strictly observed the conditions of his parole. This has meant that he and his wife have sold their home as it was in the immediate vicinity of a school. He understands also the restrictions placed upon him by reason of the entry of his name on the Sex Offenders Register and he understands that these restrictions apply for the rest of his life.
Mr B recognises the value of the support available to him from his wife, his mother-in-law and friends. His wife and mother-in-law formed his Support and Awareness Group established as part of the sex offenders program and attended a meeting at the prison before Mr B was released.
Evidence of Ms B, Mr B’s wife
Ms B impressed me as an honest witness who gave considered and careful answers to the questions asked of her. I am satisfied of the facts set out in the following four paragraphs based on her evidence.
In her statement made 12 June 2009[18] Ms B said that if her husband was required to return to the United Kingdom she would have no alternative but to return with him and this she did not want to do. However in her statement made 1 June 2012[19], and when she gave evidence, Ms B stated that she would continue to live in Australia, notwithstanding Mr B’s deportation. I accept this evidence. She became an Australian citizen in October 2009 and she has established her career and friendships in Australia. In addition her mother, who is her only blood relative with whom she has contact, came to Australia in October 2011 and now lives here as the holder of a contributory parent visa. Her mother’s migration to Australia was planned before Mr B and Ms B left the United Kingdom.
[18] Exhibit A10.
[19] Exhibit A11.
Ms B has continued to maintain her support of Mr B since learning of the offences he committed. She visited him regularly in prison. She agreed to sell their home as it was too close to a school to permit Mr B to reside there on his release from prison.
In her statement of 1 June 2012 Ms B stated, in part:
…
I firmly believe that being in prison has taught Andy the social skills that he otherwise would never have learnt. He has learnt to identify and be open about his thinking, his needs. He expresses an opinion now. This has increased the clarity between us and in the relationship, and I feel I know much more about Andy through the process of his imprisonment. I learnt things about him that I never knew—and this is quite significant, given that I have known him since he was a teenager.
I accept that Ms B genuinely holds this belief.
Ms B wishes her marriage to Mr B to continue. As she gave her evidence I formed the view that she would endeavour to try to strengthen the relationship between her husband and herself and would assist him in overcoming any problems he may face in re‑establishing himself in the Australian community should he be free to do so.
Evidence of Mrs W
Mrs W is the mother of Ms B. She provided statements dated 20 June 2009[20] and 11 June 2012[21] and gave evidence.
[20] Exhibit A12.
[21] Exhibit A13.
Mrs W became aware of the nature of Mr B’s offences shortly after he was spoken to by police. She visited Mr B when he was in prison and agreed to become a member of his Support Group prior to his release. She is willing to continue to give emotional support to Mr B should he be released into the community.
In her statement made 11 June 2012, Mrs W said, in part:
...
I believe firmly that Andy does not pose a threat to the Australian community. His only desire from when he was in prison, has been to move on with his life in Australia, find employment and build his family here. I can see that Andy has changed, in that he has the confidence to openly and honestly deal with a broad range of people, and he is stable in his personality and who he is. I am confident that he is the type of person now who is able to deal with any issues that way have led to his offending, and as such I do not believe that Andy could ever repeat the same behaviour.
I accept Mrs W as an honest witness and a person who has carefully assessed the situation and genuinely holds the views she expressed.
Evidence of Ms S
Ms S provided a statement dated 2 July 2012[22] and gave evidence.
[22] Exhibit A16.
In October 2008 Ms S interviewed and employed Mr B in a business in which she was working. Until January 2009 she was his supervisor. She found him to be a diligent and capable employee.
During his employment Mr B and Ms S became friends and later Ms S also established a close friendship with Ms B. In January 2009, shortly before he was required to appear in Court, Mr B informed Ms S of the charges against him and resigned from his employment. Mr B lived at Ms S’s home during the time he was on parole before he was taken into immigration detention.
Ms S has remained a close friend of both Mr B and Ms B and intends to remain so. She visited Mr B in prison. In her opinion Mr B has matured and has a greater understanding of the consequences of his actions. She is of the opinion that Mr B will not re-offend.
I am satisfied that Ms S was an honest witness and I accept her evidence.
Evidence of other friends of Mr B and Ms B
Statements were provided by two friends of Mr B and Ms B, both of whom had known them before Mr B offended.[23] Both witnesses were aware of the nature of Mr B’s offences.
[23] Statements of these witnesses are exhibits A1 and A39. Only one of the witnesses gave oral evidence.
The witnesses each stated that he/she had continued his/her friendship with Mr B and Ms B and intended to continue to do so. Each was of the view that Mr B had changed during his term of imprisonment and that it was unlikely he would re-offend.
Consideration of the risk of repetition of the offending conduct
Based on the evidence of the professionals who have assessed Mr B, namely Ms Buttigieg, Ms Shott and Mr Newton, I am satisfied that the risk of Mr B committing further criminal offences is low. I accept their evidence that Mr B now has a much greater understanding of the effect of his conduct upon his victim and her family and the consequences for his family and himself. In reaching this conclusion I have taken into account that Mr B sought and actively engaged in the program he undertook in prison.
I am strengthened in my view that Mr B will not re-offend having taken into account a number of additional factors. When he gave evidence Mr B impressed me as a person who had a clear understanding of the effect of his conduct on all concerned and who had learnt from his time in prison. I am satisfied that he has learned skills which will enable him to return to the community without exposing others to an inappropriate risk of harm by him at any time in the future.
I have taken into account also that Mr B will never be able to again work as a school teacher, that he will continue on parole for some time and intends to undertake further counselling. Importantly I am satisfied he is likely to have the continued support of his family in Australia and a group of friends.
Having considered all of the evidence before me I am satisfied that it is unlikely that Mr B will repeat the conduct which led to his conviction and imprisonment.
Primary consideration 2: whether Mr B was a minor when he began living in Australia – paragraph 10(1)(b)
When Mr B began living in Australia he was not a minor; he was 28 years old. As an adult he entered Australia with the “knowledge duties and responsibilities of an adult in the position of the visa holder …” [24]As Mr L has failed to meet his duties and responsibilities as a resident of this country, this factor is to be considered as a factor suggesting that cancellation of Mr B's visa is preferable.
Primary consideration 3: the length of time that Mr B was ordinarily resident in Australia prior to engaging in criminal behaviour – paragraph 10(1)(c)
[24] Rosson v Minister for Immigration and Citizenship [2011] FCA 194 at para.21; (2011) 191 FCR 390, 396 at para 21.
Mr B was ordinarily resident in Australia for only 16 months prior to committing the offences. This is not a factor which assists Mr B.
Primary consideration 4: relevant international obligations, including but not limited to … the best interests of the child, as described in the Convention on the Rights of the Child – paragraph 10(1)(d)
There are no relevant international obligations of Australia which are relevant.
OTHER CONSIDERATIONS
The other considerations, where relevant, must be taken into account. Generally they should be given less weight than that given to the primary considerations.[25] A non‑exclusive list of other considerations are set out in paragraph 11(3) and are considered in the following paragraphs.
[25] Direction [41] para.11.
Mr B has family ties in Australia as his wife and mother-in-law are established here.
On the basis of the evidence of Mr B and Ms B I am satisfied that there is a genuine martial relationship between them. Ms B is an Australian citizen. Mr B’s offending has clearly placed great strain on the relationship and he has acknowledged that he has to work to rebuild trust between them. However Ms B continued to visit Mr B in prison and the relationship has survived Mr B’s release on parole and return to detention. Ms B has supported Mr B in his application to this Tribunal.
Mr B and Ms B have been in a marital relationship for 15 years.[26] On the basis of the evidence of Ms B and Mrs W I am satisfied that the removal of Mr B from Australia would have a negative impact on Ms B. I am satisfied that Ms B has been frank in her evidence when she said that if her husband had to return to the United Kingdom she would not return with him. This was contrary to her view in 2009[27]. I am satisfied that the likely effect of Mr B’s deportation would be to end the marriage.
[26] Exhibit A10, para.3.
[27] Exhibit A10.
There is no evidence to suggest that Ms B knew that Mr B was of character concern. On the basis of her evidence I am satisfied that Mr B's conduct which led to his convictions was out-of-character and Ms B had no reason to suspect that he would act as he did.
Mr B does have links to England, the country to which he would be removed. His mother, sister and other relatives live there. However I accept the evidence of both Mr B and Ms B that Mr B’s offending has caused his relatives in England to distance themselves from him and it is unlikely that he would receive financial and/or emotional support from them should he return. I accept the evidence of Mr B that his mother has told him that he could not live at her home if he returns.
Mr B has not been formally advised in the past about the conduct which has brought him within the deportation provisions of the Act.
ASSESSING THE VARIOUS CONSIDERATIONS
The Tribunal must assess the weight to be given to all the relevant considerations, both primary and other. It has been given a general discretion to decide whether Mr B's visa should be cancelled. This requires the Tribunal to make the preferable decision. The primary considerations are to be taken into account; the other considerations “where relevant, must be taken into account but, generally, they should be given less weight than that given to primary considerations.” [28] This means that in appropriate situations the other considerations may out-weigh the primary considerations.[29]
[28] Direction [41] subpara.11(2).
[29] Jason Schuster-McFadyen v Minister for Immigration and Citizenship and Administrative Appeals Tribunal (2011) 124 ALD 68; [2011] FCA 1303.
In considering the weight to be given to the protection of the Australian community from serious criminal conduct, the seriousness of the offences committed by Mr B weighs very heavily in favour of his visa being cancelled. However, having considered the risk that the conduct may be repeated and having concluded that the risk is low, I am satisfied that the weight to be given to this consideration is considerably lessened. Nevertheless the consideration must still weigh in favour of cancellation. I cannot be satisfied that there is no risk of Mr B’s re-offending. However I am satisfied that it is unlikely he will re‑offend.
The fact that Mr B was an adult when he entered Australia is a consideration supporting cancellation. The length of his residence in Australia prior to his offending was very short. Both these factors weigh against his being permitted to remain in this country.
Taking into account all of the factors to which I have referred I come to the conclusion that the preferable decision is that Mr B’s visa not be cancelled.
The factor weighing most heavily in support of cancellation is the need to protect the Australian community from conduct such as that engaged in by Mr B. In this case it is of particular concern as the conduct was criminal conduct against a child. However it is important not to confuse the need to protect the community with the need of the community to punish those who offend in the manner in which Mr B has done. Mr B has been punished to the full extent determined appropriate by our system of criminal justice. Measures including the registration of Mr B as a sex offender for life, the prevention of his employment as a teacher, the terms of his parole and further counselling as well as the steps already taken to change his attitudes and address past problems, all lessen future risk to the community.
In the circumstances of this application I am satisfied that the factors in favour of Mr B being permitted to continue to reside in Australia outweigh the factors in favour of the cancellation of his visa.
ORDER UNDER SECTION 35 OF THE ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 (CTH)
At the commencement of the hearing I made the following order in this matter:
In accordance with section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) it is ordered that:
(1) The publication of the name of the applicant is prohibited and that the applicant shall be referred to as HBMB.
(2) The publication of the names and/or addresses of witnesses appearing before the Tribunal in this application is prohibited.
(3) The publication of evidence given in this application which identifies the name and/or address of any female person referred to, the name and/or location of any school referred to and the name or location of any town or city referred to, is prohibited.
Section 35 provides that the Tribunal shall take as the basis of its consideration “the principle that it is desirable that … evidence given before the Tribunal and the contents of documents lodged with the tribunal or received in evidence before the Tribunal should be made available to the public …” [30]
[30] Section 35(3).
I consider it necessary that this order continue to protect the witnesses and schools involved from any negative publicity. I also consider it is appropriate to restrict the publication of the name and address of Mr B and Ms B to give them the best chance of re-establishing their life together and to ensuring the risk of re-offending is kept as low as possible.
CONCLUSION
The reviewable decision, being the decision of the Minister for Immigration and Citizenship made 19 April 2012 to cancel the Applicant’s BN Subclass 136 Skilled Independent (Migrant) Visa, will be set aside.
In substitution it will be decided that the Applicant’s BN Subclass 136 Skilled Independent (Migrant) Visa not be cancelled under subsection 501(2) of the Migration Act 1958 (Cth) by reason of the Applicant’s conviction of criminal offences in the County Court of Victoria on 18 February 2009.
I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.
..........[sgd]..............................................................
Associate
Dated 11 July 2012
Dates of hearing 27 June 2012 and 2 July 2012 Counsel for the Applicant Mr G Hughan Advocate for the Applicant Ms S Verma Solicitors for the Applicant Clothier Anderson & Associates Advocate for the Joined Party Mr T Eteuati Solicitors for the Joined Party Clayton Utz, Canberra
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