HKRC and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 450
•14 March 2023
HKRC and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 450 (14 March 2023)
Division:GENERAL DIVISION
File Number(s): 2022/10396
Re:HKRC
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural
Affairs
RESPONDENT
DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:14 March 2023
Date of written reasons: 21 March 2023
Place:Sydney
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal decides that the decision under review is affirmed.
...............................[SGD].........................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation of visa – Migration Act 1958 (Cth), subsection 501CA(4) – Direction No. 99 – child sexual offences – long period of abuse – protection of the Australian community – family violence – strength, nature and duration of ties to Australia – best interests of minor children in Australia – expectations of the Australian community – extent of impediments if removed – impact on victims – decision affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
CASES
BLBY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2282
CKQV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 927
DLJ18 v Minister for Home Affairs [2018] FCA 1650
Egan and Minister of Home Affairs (Citizenship) [2020] AATA 2632
KMDC and Minister for Home Affairs (Migration) [2019] AATA 4771
Mayes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 32.
Potae and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 3731
Republic Act No. 11648
R v Fisher (1989) 40 A Crim R 442
R v Gavel [2014] NSWCCA 56
RQRP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 437
RXDD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2881Uelese v Minister for Immigration and Border Protection [2015] HCA 15
SECONDARY MATERIALS
Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
UNICEF – Increasing the Age of Statutory Rape to Provide Stronger Protection for Children
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
21 March 2023
INTRODUCTION
HKRC (the applicant) is a citizen of the Philippines. On 25 May 2020, his Class BB Subclass 155 Five Year Resident Return visa (the visa)[1] was cancelled pursuant to subsection 501(3A) of the Migration Act 1958 (Cth) (the Migration Act or the Act) because he did not pass the character test.[2] On 19 December 2022, a delegate of the Minister (the delegate) decided not to revoke the cancellation of his visa under subsection 501CA(4) (the reviewable decision).[3] On 20 December 2022, he applied to the Administrative Appeals Tribunal (the AAT) for review of that decision.[4]
[1] The applicant was granted a Five-Year Resident Return Visa on 26 May 2014: G21, 143.
[2] G2, 12.
[3] G2, 10.
[4] G1.
BACKGROUND
The applicant spent his formative years in the Philippines. He arrived in Australia in 2001 with his father, stepmother, grandmother and two siblings.[5] He was then aged 20. He has lived here continuously for 22 years, making three short trips out of the country.[6]
[5] G9, 65.
[6] G24, 172.
The applicant formed a relationship with an Australian-Filipino woman in early 2003 and they married in May 2014. They have a son, now 17 years of age. His wife has two children from a former relationship, a son of 21 and a daughter of 25. The daughter was five years old when she met the applicant.[7] For the most part, the two older children stayed with their father during the week and with their mother and the applicant on weekends.
[7] RTB, 46.
On 18 November 2014, his wife came home from work and found the applicant trying to have sexual intercourse with her daughter, who by then had turned 17. She reported this to the police and she and her daughter were interviewed the following day.[8] Her daughter provided details of acts of sexual molestation going back to when she was 8 years old.
[8] RTB, 29.
The applicant was charged on 20 November 2014.[9] On 21 February 2017, he entered pleas of guilty to two counts of aggravated sexual intercourse with a person more than 10 and less than 14 years of age (DV), one count of aggravated sexual assault where the victim was under his care (DV), and one count of aggravated indecency with a person under the age of 16 years. He asked that three additional counts of aggravated indecent assault be included in sentencing.[10]
[9] RTB, 2.
[10] G3, 31-33.
On 25 August 2017, he was sentenced in the Downing Centre District Court of New South Wales to an aggregate sentence of 10 years and six months imprisonment with a non-parole period of 7 years 10 months and 15 days.
On 25 May 2020, the applicant’s visa was cancelled.[11] He was then serving his sentence on a full-time basis in Junee Correctional Centre in New South Wales (NSW).[12] The Minister was therefore required to cancel his visa pursuant to subsection 501(3A) of the Act.
[11] G2, 12.
[12] G2, 12.
On 4 October 2022, he was released to parole and transferred to immigration detention.[13]
[13] RTB 129.
The delegate’s decision not to cancel the mandatory cancellation was conveyed by hand-delivered letter dated 20 December 2022.[14] In his application to the AAT dated 20 December 2022, he stated:
I have the reason to believe and to claim that the decision is wrong because the decision was all base to the fact that I have committed crimes from the past that I have serve time for. I look at this decision purely on character judgement. The decision not to revoke visa cancellation does not consider the future impact to my immediate family and to myself.
The decision not to revoke visa cancellation on the basis of the chances of re- offending is baseless and has no proof, weighing on crystal ball prediction, of my future endeavours. Please consider this application.[15]
[14] G2, 7.
[15] G1, 5.
THE HEARING
The application was heard on 2 March 2023. The AAT was required to finalise its decision by 14 March 2023, in accordance with the timeframe imposed by the Act.[16]
[16] Subsection 500(6L).
The applicant was self-represented. The Respondent was represented by Mr M. Palfrey, a solicitor employed by HWL Ebsworth Lawyers.
A confidentiality order was made by the Tribunal under subsection 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth) that the name, address, or any other information tending to reveal the identity of the applicant, his stepdaughter or any other person connected to his offending, must not be published, except to the extent that the information is contained in this set of written reasons
The applicant was the only witness.
MATERIALS BEFORE THE TRIBUNAL
Written submissions received:
a) Applicant’s Statement undated and filed 16 February 2023
b) Respondent’s Statement of Facts, Issues and Contentions (RSFIC) dated 22 February 2023
Applicant’s materials:
(a)Statement of DI dated 11 February 2023 and filed 16 February 2023
(b)Health Summary Sheet of DI dated 10 October 2022 and filed 16 February 2023
(c)Identity documents of DI filed 16 February 2023
(d)Statement of GC dated 11 February 2023 and filed 16 February 2023
(e)Identity documents of GC filed 16 February 2023
(f)Statement of his wife undated and filed 16 February 2023
(g)STARTTS report dated 22 December 2022 and filed 16 February 2023
Respondent’s Materials:
(a)Respondent’s Tender Bundle (190 pages)
(b)Respondent’s Submission regarding Pearson, dated and filed 10 January 2023
Documents filed under section 501G of the Act (the G docs)
FINDING ON THE CHARACTER TEST
A person sentenced to a term of imprisonment of 12 months or more has a ‘substantial criminal record’ by reason of paragraph 501(7)(c) of the Act and therefore does not pass the character test under paragraph 501(6)(a).
According to the Nationally Coordinated Criminal History Check Report provided by the Australian Criminal Intelligence Commission (ACIC) dated 12 April 2019, the applicant was sentenced in the Downing Centre District Court of New South Wales on 25 August 2017 to an aggregate sentence of 10 years and six months imprisonment with a non-parole period of seven years 10 months and 15 days, for several sexual offences against a child, as outlined in the Introduction. Therefore, he does not pass the character test.
THE SOLE ISSUE
Subsection 501CA(4) of the Act provides:
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
On 28 May 2020, the applicant made representations to the Minister, in accordance with the invitation to do so, seeking revocation of the decision to cancel his visa.[17] He described his family relationships, and the likely impact upon his wife, son, mother and father in the event of his removal from Australia. He described his upbring and the abuse he suffered as a child and his exposure to child prostitution. He stated that he was a child prostitute from the age of 12 to 16, and that he was sold to different people from different nationalities ‘mainly men’ and was given drugs at a young age. He states he was raised in a ‘putrid and violent’ environment and does not ‘really know if this [constitutes] my offending’ (sic).[18] He thought that he would probably be killed if sent back to the Philippines. He referred to some medical treatment to his neck and spine.[19]
[17] G8, 58.
[18] G8, 72.
[19] G12, 92-94.
I turn to the question whether there is ‘another reason’ why the original decision to cancel his visa should be revoked.
EXERCISING THE DISCRETION UNDER SUBSECTION 501CA(4)
Under section 499 of the Act, the Minister may give written directions to a decision-maker about the performance of its functions and exercise of its powers. The Tribunal is required to comply with such directions.[20] Direction No. 99 (the Direction) commenced on 3 March 2023.[21]
[20] Subsection 499(2A).
[21] Direction no. 99 –Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.
Part 1 of the Direction includes a series of principles which provide a framework within which the Tribunal should approach its task. Given that the applicant is a long-term resident of Australia, and the nature of his offending, three of the principles are of special relevance. Paragraph 5.2 provides:
…
(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.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) 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 8.55(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 measureable risk of causing physical harm to the Australian community.
The Direction provides a framework for decision-making but must be read subject to the Migration Act itself, and especially subparagraph 501CA(4)(b)(ii), which requires the Tribunal to consider whether there is ‘another reason why the decision should be revoked’. The duty of the Tribunal to consider whether there is such a reason applies in all cases where a person fails the character test, regardless of the nature of the offending. It is important to emphasise that even in cases of sexual violence against children the Tribunal has a job to do. It is not appropriate to treat such cases as a subcategory of offending in respect of which even strong countervailing considerations have no legal significance. The discretion is not automatically excluded in cases of sexual violence against a child.[22]
[22] See for example, CKQV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 927 (CKQV). However, it should be acknowledged that decisions such as CKQV are vastly outweighed by those favouring non-revocation: See for example, BLBY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2282 (single instance, no other criminal offending, victim between 13 and 16, decision affirmed); RXDD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2881 (two offences, 12 months suspended after 3 month custody); Egan and Minister of Home Affairs (Citizenship) [2020] AATA 2632 (one count of rape; three counts of indecent assault on a child under the age of 16; four counts of indecent assault); MKBL and Minister for Home Affairs (Migration) [2019] AATA 5292; KMDC and Minister for Home Affairs (Migration) [2019] AATA 4771.
Sexual offences involving children inevitably and rightly attract strong feelings of outrage, condemnation, and fear. Paragraph 5.2(6) above is clearly relevant to such cases. It states that there are some instances where even strong countervailing considerations may not protect a non-citizen from visa cancellation, even if the non-citizen presents no measurable risk of physical harm to the Australian community. This is not however cast in absolute terms, nor could it be. It uses expressions such as ‘in some circumstances’ and ‘may be insufficient’ and ‘may be insufficient in some circumstances’.
Part 2 of the Direction is entitled Making a Decision. Informed by the principles in paragraph 5.2, a decision-maker must consider the considerations identified in sections 8 and 9, where relevant to the decision. Section 8 identifies five primary considerations, and section 9 identifies four ‘other’ considerations. These are considered in detail below. The Direction also contains guidance on the weighing of various considerations. For example, primary considerations should generally be given greater weight than the other considerations; and one or more primary considerations may outweigh other primary considerations.
PRIMARY CONSIDERATIONS
Protection of the Australian community: PC1
Paragraph 8.1(1) states that decision-makers should 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. Decision makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) provides that decision-makers should also 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 non-citizen’s conduct: paragraph 8.1.1
The applicant’s criminal record is contained in the Nationally Coordinated Criminal History Check Report provided by the Australian Criminal Intelligence Commission (ACIC) dated 12 April 2019.[23] His record divides into two phases. The first phase includes three offences in 2004 and one offence in 2005.
·25/10/2005 Resist or hinder police officer in the execution of duty: fine and bond
·05/03/2004 Assault police officer in execution of duty cause actual bodily harm – T1: fine
·05/03/2004 Resist officer in execution of duty -T2: fine
·05/03/2004 Goods in personal custody suspected being stolen (not m/v): bond
[23] G3.
These offences were all dealt with by fines or bonds and are relatively unimportant in this review.
The second phase involves much more serious offending. At the time of his sexual offending, he lived with his wife and their son, and part-time with his stepson and stepdaughter. The circumstances of his arrest have been described above. I note that when he was initially confronted by his wife, he denied any wrongdoing, saying that his stepdaughter was lying. When he was taken into custody his mobile phone was examined. The learned sentencing judge noted:
On 30 September 2014, the offender sent the complainant the following text:
“I don't know what spell you did to me. You are everything. I can be so in love with you at one point and can be so hateful of you at any time. You made me crazy. I'm so crazy over you. Around you I cannot control myself. I can be anything around you. I want to be next to you, touch you, hug you, kiss you. I want to see you smile. You're all I want and it's hurting me a lot knowing I cannot have you.”
The complainant replied:
“Leave me alone.”
The offender said:
“Everything I said is true. I want you but I can't because it's wrong and it makes me crazy.”
The complainant replied:
“Leave me alone.”
On 25 August 2017, he was sentenced for two counts of aggravated sexual intercourse with a person between 10 and 14 years, one count of aggravated sexual assault with the victim under authority, and one count of committing an act of indecency. Three further counts of aggravated indecent assault were included in sentencing. The convictions for aggravated sexual intercourse were based on acts of digital penetration and cunnilingus. There was no reported act of penile penetration. The acts of indecency and aggravated indecent assault involved holding private parts, rubbing, masturbation, and ejaculation.
Assessing the nature and seriousness of the applicant’s criminal record
Paragraph 8.1.1 of the Direction outlines certain factors a decision-maker must have regard to in considering the nature and seriousness of the applicant’s criminal offending.
Violent crimes are viewed very seriously by the Australian Government and community, and crimes of a violent nature against women and children are viewed very seriously regardless of the sentence imposed. Subject to this caveat, the Tribunal should take account of the sentence imposed by the criminal court, the frequency of the offending and whether there is any trend of increasing seriousness, the cumulative effect of repeated offending, and whether the applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
As noted above, the applicant was sentenced on 25 August 2017 to an aggregate sentence of 10 years and six months imprisonment. The sentence commenced on 20 November 2014. The non-parole period of 7 years, 10 months and 15 days concluded on 4 October 2022. The sentence concludes on 19 May 2025. He received a 10% sentencing discount for his plea of guilty.
The Agreed Facts are set out in the Respondent’s Tender Bundle from page 29. The applicant was given an opportunity to read the statement during an adjournment at the hearing before the Tribunal and accepted that they were an accurate account. He did not dispute any of the facts in the Agreed Statement of Facts presented at his sentencing hearing. The agreed facts show that he molested his stepdaughter over a period of some nine years, from when she was eight until she was 17.[24]
[24] RTB, 16.
There can be no doubt that when measured against the various factors in paragraph 8.1.1, this aspect of the applicant’s offending is extremely serious. He perceived his stepdaughter as an appropriate object of sexual attention when she was only eight, and this continued until she was 17 years old. The offending extended over a very long period and the gravity and brazenness of the offending was undoubtedly increasing.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct: Paragraph 8.1.2
Under paragraph 8.1.2(1), in considering the need to protect the Australian community, the Tribunal 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.
Under paragraph 8.1.2(2), in assessing the risk that may be posed by the applicant to the Australian community, the Tribunal must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Paragraph 8.1.2(2)(a): The nature of harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct.
Sexual violence involves not only the risk of serious physical harm, but carries a grave risk of psychological harm, especially where the victim is under the authority and supposed protection of the offender. Such abuse is inevitably damaging to a child’s natural development, leading to a loss of confidence in self and social relationships.
Sexual violence perpetrated on the young is cowardly, narcissistic, and deeply exploitative. For the victim, it often means a lifetime of psychological pain. The psychological impact on the entire family unit may be devastating, as in the present case.
The applicant’s offending behaviour continued over many years. I note the sentencing judge’s statement that the victim in the present case attempted suicide by taking an overdose of sleeping pills. [25]
[25] G4, 43.
In the criminal sphere, courts have emphasised the importance of protecting children from sexual attacks by adults, especially where a child is under the offender’s authority. In sentencing the applicant, the learned judge stated:
The period of offending was between 2005 to 2014 when the complainant was aged between 8 years and 17 years of age. During this period, the offender was in a position of trust and the complainant was under his authority.
All the counts save for count 3 have an element of the offence as being under authority. The Crown refers to the Court of the case of R v Fisher (1989) 40 A Crim R 442 at 445:
“This Court has said time and again that sexual assaults against young children, especially by those who stand in a position of trust to them, must be severely punished and that those who engage in this evil conduct must go to gaol for a long period of time, not only to punish them but also to endeavour to deter others who may have similar inclinations.
This Court must serve notice on judges who impose weak, merciful sentences in some cases of sexual assault upon children that heavy custodial sentences are essential if the courts are to play their proper role in protecting young people from sexual attacks by adults.”
The Crown also referred the Court to more recent of case of R v Gavel [2014] NSWCCA 56 and the comments of the Court of Criminal Appeal:
“This Court has observed that child sexual offences have profound and deleterious effects upon victims for many years, if not the whole of their lives, R v CMB [2014] NSWCCA 5 at 92. The sexual abuse of children will inevitably give rise to psychological damage, SW v R [2013] NSWCCA 225 at 52.”
The offender has no prior convictions for matters of this type. The Crown submitted that the offences were not isolated events but represented continuous abuse over a lengthy period of time. The Crown submitted that the offender was in a position of trust and authority, which is an element of some of the offences.
The Tribunal is not engaged in a sentencing exercise, where issues of deterrence, retribution and community protection are front and centre. However, in identifying the correct administrative decision, the Tribunal is required to consider the protection of the community as a primary consideration. The protection of the Australian community which includes of course, the applicant’s immediate family and especially his stepdaughter, the victim of these crimes.
Paragraph 8.1.2(2)(b): The likelihood of the non-citizen engaging in further criminal or other serious conduct ...
In assessing the likelihood of the applicant engaging in further criminal acts or other serious conduct, the Tribunal is required to consider information and evidence on the risk of re-offending, including evidence of rehabilitation achieved by the time of the decision. I accept that overall, his risk of recidivism is not high. I have no doubt that if released into the Australian community he would be carefully monitored as part of his parole conditions, including his entry into the NSW Child Protection Register.
However, some concerns remain. I refer to the comprehensive pre-release report dated 8 July 2022 prepared by Corrective Services NSW:[26]
[26] RTB, 22.
Overall assessment
[The applicant]’s apparent avoidance of discussing his offending behaviour and subsequent victim impact remains a primary concern for his ability to adequately prepare for release into a community environment. Whilst this custodial case management step remains outstanding, [the applicant] would have greater access to intervention programs and support services in a community-based environment due to his low risk assessments.
In considering [the applicant]’s visa status, interest to the Department of Home Affairs, ineligibility for custody-based programs and generally positive contribution to centre routine, Community Corrections considers a recommendation to Parole to be the most appropriate assessment at this time.
Recommendation
Community Corrections recommends that a Parole Order is made for [the applicant], with the addition of the following conditions:
• Condition 25) You must not contact or communicate with the victims and/or victims’ families without the express prior approval of your Officer,
• Condition 26) You must not be in the company of a person under the age of 16 years unless accompanied by a responsible adult, as determined by your Officer. You also must not engage in written or electronic communication (including through social media) with any person under the age of 16, other than with those approved by your Officer; and
• Condition 27) You must comply with all conditions and requirements of the Child Protection Register.
This recommendation was supported by the Team Leader Mr M Bolton and Community Corrections Manager, Ms J Hume.
Mr Bolton considered that the applicant lacked insight and victim empathy:
His demonstrated capacity, however, to comply with the institutional environment may provide some indication that he is willing to co-operate, follow directions and engage with community-based interventions, whilst subject to supervision.
Pending the confirmation of his status with Home Affairs, [the applicant] will have access to family support as described in the post release plan, which also contains steps to provide community safety. There would seem, therefore, little to be gained by extending [the applicant]’s custodial period and, as such, the recommendation to release is supported. (emphasis added)
In supporting the recommendation for release, Ms Hume noted that:
… should he not be removed from Australia by Home Affairs, the post release case plan will provide a level of support from family members, and interventions facilitated by Community Corrections in attempt to address his criminogenic issues.
There is a reference to the applicant’s ineligibility to undertake offence specific therapeutic intervention because of his low recidivism risk. The applicant tried to enrol in such a program but was deemed ineligible because he had a low score for recidivism (LSR-1).[27] For the period January-February 2020 a centre file note record shows that he was:
… not eligible for therapeutic programs due to a low LSIR score. … there has not been a lot of activity from [the applicant] due to limitations resulting from his LSIR score, which is low. Consequently, [the applicant] has not engaged in any TAFE courses, vocational courses or therapeutic programs, although it is noted that he has assisted with the construction of Chinese drums for the upcoming Chinese New Year celebrations.[28]
[27] RTB, 133.
[28] RTB, 92.
In the view of the Tribunal, the fact that he was deemed ineligible to receive appropriate therapeutic support because of a low risk of recidivism is lamentable.[29] It is presumably the resource intensive nature of such programs that they are restricted to the worst offenders, although this does reveal an unfortunate Catch-22 for an offender. Participation in such a program may have significant evidentiary as well as therapeutic value.
[29] G13, 95. File note states: ‘SOP referral completed 25/09/2017. Low STATIC-99R remain ineligible as per Memorandum No 2020/01’. See also RTB, 92, 94.
The Pre-Release Report notes that he claimed to take responsibility for his offending behaviour. He did not attribute blame to the victim:
Whilst he was unable to adequately identify why he continued to engage in the offences whilst being aware at the time that it was wrong, [he] identified his own alleged experience of sexual abuse and his self-reportedly high sex drive as contributing factors.[30]
[30] RTB, 17.
When asked to elaborate on the impact of the abuse he experienced as a child:
… [He] explained he felt the perpetration of such offences may have ameliorated some of the negative memories of his own experiences but was otherwise unable to concisely explain this logic. [31]
[31] RTB, 17.
Although the pre-release reports and his almost impeccable behaviour in prison and detention reflects a low risk of reoffending, there is unfortunately no evidentiary basis for concluding that his sexual drive or tendencies with respect to young girls have abated. He told a counsellor that he had a very strong sex drive and that his offending behaviour somehow normalised what had happened to him as a child. In evidence before the Tribunal, he said that his attraction was only for the victim of his offending, but this may be a function simply of the fact that she was an available hostage to his attentions. There must inevitably be some risk that he may relapse if the opportunity presents.
I consider that the risk he presents to children in Australia is small and manageable. In this country he will be subject to rigorous ongoing monitoring as a convicted sex offender, thus reducing the risk of future offending. I am satisfied that if he remains in Australia, he does not pose a measureable risk of causing physical harm to the Australian community.
It is hard to be as confident about the risk he presents to Filipino children were he to be removed. Given the high rates of child exploitation in the Philippines, the applicant may well constitute a greater risk to children in the Philippines than to children in Australia. This is not something that sits comfortably with the Tribunal. However, the primary obligation of the Australian government, and the Tribunal standing in the shoes of the Minister, is to protect the safety of the Australian community.
No doubt professional therapy may mitigate the risk somewhat. There is certainly a need to address the applicant’s confused thinking about the reasons for his offending.
Conclusion on PC1
The persistent nature of his offending elevates the case against him. It is a significant feature of the present case. This is not a case of limited or one-off offending, although I hasten to note that even a single instance of such offending may result in an adverse outcome for a non-citizen.[32]
[32] BLBY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2282 (single instance, no other criminal offending, victim between 13 and 16, decision affirmed).
The Direction speaks in paragraph 5.2(6) of the ‘inherent nature’ of family violence and crimes of a violent or sexual nature against women or children, and that they may be ‘so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community’.
I consider that in the circumstances of this case, PC1 must be assessed as weighing heavily against revoking the mandatory cancellation.
Family Violence committed by the non-citizen: PC2
The Direction provides a definition of family violence in these terms:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
a) an assault; or
b) a sexual assault or other sexually abusive behaviour; or …
Family violence involves a relationship (membership of the family) and a particular type of behaviour (coercive, controlling etc). I propose to consider each element in turn.
The applicant did not deny that he was a member of a family which included his wife, a son, and two stepchildren, one of whom was the victim of his offending. I also note the file note made on 19 July 2017, between an officer of NSW Corrective Services and the applicant’s wife. The file note states:
Confirmed that she had been in a relationship with the offender since about 2003, said that it had been a very happy relationship for around 5 years then she feels that the offender became a little less happy in the relationship as he started spending more time with friends and would occasionally stay away from the home for days at a time. Stated that the relationship over the past 9 years has been up and down, though they stayed together for the children.
[Confirmed] that the offender had been mostly employed over the years but was unable to engage in full time work again after his operation on his neck two years prior to custody.
Confirmed that the victim had been 5 years old when they got together, though in 2010 she had sent her two elder children to live with her ex partner because she couldn't afford to keep them, due to her problematic gambling. Stated that she was gambling due to being stressed and unhappy with the home life. The children came to visit most weekends but she recalled that her daughter never liked the offender and would not want to visit because of him.
Denied that the offender engaged in problematic drug use, only smoked cannabis on rare occasions.
Denied that she had known that the offender had interfered with her daughter prior to catching him in the act the last time - claimed that she had used the word "again" because she was referencing the fact that they always fought with each other verbally.
Claimed to have been very surprised to learn about the extent of the offences.
Unable to articulate why she remains in a relationship with the offender and why she visits him. Stated that she is very angry with him and hates him for what he has done, though still cares enough about him that she doesn't want him to be alone throughout his sentence. Disclosed that the offender had also told her that he would consider suicide if he were to lose her and their son - acknowledged that this may be manipulative behaviour on behalf of the offender.
Stated that her daughter is very brave and is coping well despite all of this, though she is very angry with the offender and hates him. Is also angry with her mother for staying with the offender and would be very happy to see them break up.
Reported that she had not disclosed the full nature of the offences to her other two sons and when she and her daughter discuss it they do so away from the boys. The victim and her brother still live with their father.
Stated that the victim is engaged in counselling to address her trauma and is also studying psychology at Uni.
Suggested that she may wish to engage in counselling together with her daughter as well as on her own to deal with the issues between them, as her daughter would rightfully harbor some resentment issues toward her for remaining married to the offender.
She reiterated that she only visits and provides financial support because she is scared of what he will do if she withdraws her support.[33]
[33] RTB, 46.
The applicant’s stepdaughter was clearly a member of his family. He was in a position of authority over her and had been for many years.
I turn to consider whether the conduct was such as to make his stepdaughter fearful or was coercive or controlling. The Direction gives certain instances as examples that may constitute family violence. The fact that a person is convicted of a sexual offence against a minor will usually constitute family violence, although not necessarily so.[34] The question whether the applicant’s conduct amounts to family violence requires a factual determination.
[34] The inappropriate touching of a sleeping person unaware of the touch would constitute a criminal offence even if the victim were oblivious to the touch and the elements of fear and coercion entirely absent.
The agreed facts relating to the offending in November 2014 show that the victim was in a state of extreme agitation. In reciting the agreed facts, the trial judge stated:
On 18 November 2014, the offender entered the complainant's bedroom, got into bed with her and inserted his finger into her vagina and rubbed his penis on the front of the complainant and tried to spread her legs. During this time, the complainant was objecting and was visibly upset. The complainant's mother came home from dropping her son at school and confronted the offender in the complainant's room. The complainant told her mother the offender was trying to have sex with her. The complainant's mother removed the complainant from the house and reported the matter to the police.[35](emphasis added)
[35] G4, 36 – 37.
It would be unreasonable to find that the complainant on this occasion was not fearful, or that his behaviour was neither coercive nor controlling.
I am satisfied that his behaviour on this occasion amounted to an egregious form of family violence.
Conclusion on PC2
The applicant’s conduct amounts to family violence and weighs heavily against revoking the mandatory cancellation.
The strength, nature and duration of ties to Australia: PC3
Paragraph 8.3 provides:
(1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) the length of time the non-citizen has resided in the Australian community, noting that:
i. considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii. more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii. less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Tribunal did not have the benefit of oral evidence from any of the family members. However, the applicant’s mother,[36] and father,[37] provided statements of support. These were considered as part of the delegate’s decision. The applicant’s mother provided an updated statement to the Tribunal (including health summary sheet).[38] His wife also provided a statement to the Tribunal.[39] These family members are Australian citizens. Each of them asked for the applicant to be allowed to stay in Australia, and his wife said that she had forgiven him.
[36] G15, 126.
[37] G16, 130.
[38] Dated 11 February 2023 and filed 16 February 2023.
[39] Undated and filed 16 February 2023.
In terms of practical assistance that his parents or wife may be able to provide, I note that the applicant’s mother was unable to assist with accommodation, but his father was very receptive to the applicant living with him. A file note made on 9 June 2022 between an officer of the Corrective Service NSW and the applicant’s father stated:
[He] was very receptive of his son coming to live with him, so the SPA/Immigration/Parole and PRRMP processes were explained and contact details provided. [40]
[40] RTB, 47.
Another file note dated 27 June 2022 states:
The offender's proposed accommodation is a 3-bedroom home on a residential street. On street parking is available. Public transport is readily available. … Given [the father] presents as supportive and pro-social and NSW CPR detectives have no concerns with the accommodation it is assessed as suitable.[41]
[41] RTB, 48.
I also give considerable weight to the presence in Australia of the applicant’s Australian born son, whose best interests are considered under the next section. However, the relationship has been strained by the applicant’s offending, although it is impossible to predict how this might resolve in the future.
The applicant listed some thirty relatives, including his grandmother and ten cousins and more distant relatives.[42]
[42] G10, 84.
I also note the supportive statements by two of his friends,[43] and the updated statement from one of them.[44]
[43] G17, 134; G18, 137.
[44] Dated 11 February 2023 and filed 16 February 2023.
I also note his contribution to community by employment as a factory hand, machine operator and trade assistant over the years 2002 – 2013.[45]
[45] G10, 87.
The applicant has lived in Australia for over 22 years and may be regarded as a long-term resident of Australia. I note that under the Direction considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending. This is a significant and beneficent change to the previous Direction No. 90.
I give considerable weight to the fact that the applicant has been ordinarily resident in Australia since his formative years. In fact, he has lived in Australia for slightly longer than his formative period in the Philippines.
I also give weight to the fact that he has the possibility of accommodation with his father, who is regarded favourably in the departmental and police assessments.
Conclusion on PC3
I find that taken together these considerations weigh heavily in favour of revoking the mandatory cancelation decision.
Best interests of minor children in Australia affected by the decision: PC4
The applicant’s son will turn 18 in about 6 months' time and at this point is still a minor. It is therefore necessary to consider his best interests. Paragraph 8.4 provides:
(1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
The applicant told the Tribunal that although his son had visited him in prison, he had not spoken to him for some months. He believed that this was because of his offending and the attitude of his stepdaughter:
So, you talk about your son fondly and that the first five years of my time in gaol I was calling him every day. Do you see that?---Yes.
I’ve lost contact in the last few months, reason unknown.
Do you - are you still out of contact? What’s the situation with your son now?---Yes. I still talk to him. Yes.
Yes?---Yes. But he just went - just went a distance, because he’s in - because he’s 17, right. He’s struggling to - he told me like I got a sister and I got a dad. So, he doesn’t know where he’s going to be.
Okay?---So, that’s why - I told him sorry I don’t - but I’ve seen him once when I - he visited me in the Villawood and, yes, so that’s why - so, he’s struggling to manage what - he doesn’t know what to do, you know. He’s a bit lost - - -
And is - when you say he’s got a sister, that’s your stepdaughter?---Yes.
…
So, why would you live with your father and not your wife and son if you were released?---I don’t want to put them in - because the situation is really, you know, like what I did it’s - the situation’s a bit - it’s going to be hard for them to balance the - you know, the balance the life. You know, like what they - because of that issue with my stepdaughter. So, I’ve just said - also with my dad he’s more - if I stay with dad he’s more - he’s more capable. You know, he will - he could motivate me to do more. You know, he could push me. But my missus could do that as well, but the issue is to balance it, you know. It’d probably see - I could probably see them maybe twice a week, or maybe three times a week. With my wife, I have no - I have no issue living with her but with my son that’s - yes. He’s still in - he’s still suffering. He’s still.[46]
[46] Transcript, 2 March 2023, 23-25.
The applicant’s son is understandably juggling conflicting loyalties. His father’s offending has caused considerable stress and tension within the family. This has damaged their relationship. Some of the pain may dissipate as the years go by, but alternatively, the divisions may become more entrenched. As the boy matures into a man, he will make his own decisions about the degree of contact he wishes to have with his father, whether in Australia or the Philippines.
Under these circumstances, it is not possible for the Tribunal to determine whether revocation is or is not in the interests of his son.[47]
[47] See Uelese v Minister for Immigration and Border Protection [2015] HCA 15, at [67].
I am satisfied that this consideration is neutral, it weighs neither for nor against revocation of the mandatory cancellation.
The expectations of the Australian community: PC5
Paragraph 8.5 of the Direction sets out the Government’s view regarding expectations of the Australian community. In considering paragraph 8.5, two aspects of the applicant’s offending behaviour stand out, firstly, the intrinsic nature of his offending, and secondly, its persistent nature. His offending was highly damaging to his stepdaughter, would have been extremely harmful to any child, and was deeply offensive to community norms.
Under these circumstances, the Tribunal has no hesitation in finding that PC5 weighs very heavily against the applicant.
Other Considerations
Other considerations identified in the Direction of relevance are:
(a)Legal consequences of the decision: OC1
(b)Extent of impediments if removed: OC2
(c)Impact on victims: OC3
Legal consequences of the decision under section 501CA: OC1
Paragraph 9.1(1) provides:
(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
In determining whether the Tribunal is satisfied that ‘there is another reason why the original decision should be revoked’, the Tribunal must consider the legal consequences of the decision. Having regard to sections 189, 196, and 198 of the Act, the legal consequence of not revoking the cancellation of the applicant’s visa is that the applicant is liable to ongoing detention pending removal to the Philippines.
Paragraphs 9.1(2) and 9.1(3) provide:
(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
The applicant has claimed that he will be killed if sent back to the Philippines. I accept that his fear is real, but there is no reason to believe that this fear is rational or well founded. He said that his wife’s family might exact revenge, but he has not provided any tangible evidence to support this fear. Nor is it clear that such a risk would fall within the scope of harms defined by any of the relevant Conventions. While there is some information in the public sphere suggesting that vigilantism (especially in relation to drug use) is widespread in the Philippines, insufficient information has been provided to the Tribunal to determine any such risk in a meaningful way. I also note that when pressed by the Tribunal on this issue, the applicant answered as follows:
How seriously do you think that’s likely to happen? Do you really think you’re going to be killed if you go back to the Philippines? You have a large family there, and if anybody hurt you surely they would have to face your family as well?
I reckon I could take the risk. I think I’m - I think I could go back, yes. [48]
[48] Transcript, 2 March 2023, 34.
I consider that this consideration weighs neither for nor against revocation of the mandatory cancellation.
Extent of impediments if removed: OC2
Paragraph 9.2 of the Direction states:
(1) Decision-makers must consider 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 substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
The applicant spent his first 20 years in the Philippines and there are no substantial language or cultural barriers to him in returning to the Philippines.
There is nothing to suggest that his employment prospects will be worse in the Philippines than they are in Australia.
The applicant had a one-hour session with a counsellor from the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS). She identified symptoms of post-traumatic stress disorder (PTSD), anxiety and depression and considered that his symptoms would improve with appropriate therapeutic care and support.[49]
[49] Report dated 22 December 2022.
The Respondent has provided details of psychological services in the Philippines.[50] While such services exist, there is nothing to suggest that the applicant has the means to access them.
[50] RTB, 166.
The applicant will experience hardship in being separated from his Australian family.
I consider that OC2 weighs strongly in favour of revoking the mandatory cancellation decision.
Impact on victims: OC3
The Direction provides:
(1) Decision-makers must consider the impact of the … decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen … who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
At the time of the sentencing hearing in 2017, the applicant’s stepdaughter was deeply traumatised by his behaviour. The sentencing judge referred to a victim impact statement provided by her, and said:
The complainant made a victim impact statement … She stated:
“Words can't even begin to describe what it is like not being able to remember anything about my child other than being sexually abused, living in constant fear, not of the outside world but feeling afraid and unsafe within a place I was supposed to call home.”
“The abuse still lies fresh in my mind and all I feel is pain, guilt, anger, confusion and frustration. I have become distant and isolated from most people as a result. I have lost all my friends due to feeling so much shame and embarrassment all the time. I am afraid. I still wonder why I feel severe anxiety even though I know I am safe. I live in endless fear that it is going to happen again, as a result feel highly uncomfortable around men, always feeling the need to get ready and have my guard up.”
Her years of being sexually abused have affected her academic progress. She attempted suicide by taking an overdose of sleeping pills. She does not go a day without thinking the offender is going to hurt her. She says:
“Everyone deserves a happy childhood and I was stripped of mine.”[51]
She is currently attending counselling sessions to overcome the grief and she says she is living her life with memories that will not go away. I have taken her victim impact statement into account.
[51] G4, 43.
There is nothing to suggest that the passage of time has altered the victim’s attitude towards the applicant. Indeed, evidence given by the applicant at the hearing is that his wife’s forgiveness of him had caused a fracture with her daughter, and that this had in turn produced tensions with their son, who had withdrawn from the applicant.
The victim and the applicant share the same close family members. The impact on those other family members has been considered above.
Overall, I consider that this consideration weighs firmly in favour of non-revocation of the mandatory cancellation.
Impact on Australian business interests: OC4
There is no evidence before the Tribunal indicating that the applicant’s return to the Philippines would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
I consider that this consideration weighs neither for nor against revocation of the mandatory cancellation.
Final considerations
When asked about the impact of his offending on his family, the applicant stated that he should return to the Philippines. This is of some significance. During the hearing the following exchange occurred:
SENIOR MEMBER: … I sense that you have remorse for what you did. And I sense that you understand the tension that your actions have caused within your family, particularly on the part of your stepdaughter and …her mother… and your son and his relationship with your step-daughter. Would it not be better for them if you just weren’t here? Many people might say that to you. What do you think? What’s your response to that?
Maybe you’re right, yes. I think so, yes.
Is that what you think? I understand that you want to stay in Australia, but I also see the suffering that you recognise?---Yes.
I see the suffering in you, but I also see the suffering that you recognise that you’ve inflicted upon your family. So I’m just trying to understand whether you feel in your heart that you would actually be doing the right thing if you actually left the country? --- Yes.
What do you think about that?---Yes, I believe so. Yes.
Even though you fear that you might be killed in the Philippines? ---Yes.[52]
[52] Transcript, 2 March 2023, 34.
However, after a short recess, in making his final submissions, the applicant indicated that his mother’s needs were still very much in his mind. He did not think that sufficient regard had been had to the assistance that he could provide to her. He pointed out that she had no-one else.[53]
[53] Transcript, 2 March 2023, 40.
I accept that his mother has some health problems, and I have reviewed her health summary sheet filed on 16 February 2023. In summary, her ailments are neither trivial nor overly serious. She has a range of ailments which are commonplace especially for persons of her age, but she is by no means an invalid.
I note the file notes of conversations between the applicant’s mother and an officer of Corrective Services NSW. The first note was made on 18 July 2017. [54] The second note is dated 9 June 2022 and states:
Phone call made to [the applicant’s] mother, … to verify PRRMP suitability. [The applicant’s mother] advised she would like to support her son, however is currently in a two bedroom unit with a flatmate. If [the applicant] was released, she would look into alternative accommodation, however cannot support him in that way upon release. She made enquiries about immigration and post-release plans, and I encouraged [her] to contact me with any follow-up enquiries. [55]
[54] RTB, 45.
[55] RTB, 47.
There is nothing to suggest that the applicant’s mother is reliant on her son for her daily needs. He has been incarcerated since November 2014. She has had to make do without him. This does not appear to be a case where a close family member is heavily reliant on the non-citizen for support.
The Applicant as victim
The applicant’s claims of sexual abuse as a child are not to be dismissed lightly. According to UNICEF reports, there are staggering rates of abuse of young children in the Philippines.[56] In some age categories the preponderance of child victims are young boys. A remarkable fact is that only in 2022 was the legal age for statutory rape raised in that country from 12 to 16.[57] These legislative reforms show a somewhat belated willingness to address the scourge of sexual violence against children.
[56] Policy brief - Increasing the Age of Statutory Rape to Provide Stronger Protection for Children.pdf (unicef.org)
[57] Republic Act 11648 (2022); see Republic Act No. 11648 | Official Gazette of the Republic of the Philippines.
The Tribunal has referred above to the STARTTS report dated 22 December 2022. The report canvasses the applicant’s claim to be a survivor of sexual abuse and child prostitution. While there is no direct corroboration of such claims, I accept that if true this would add to the weight of his anxiety about returning to the Philippines.
As to whether his parents were aware that he had been abused as a child, I note a file note dated 18 July 2017 of a telephone conversation between his mother and an officer of Corrective Services NSW.
[She confirmed] that the offender was around 3 years old when his father left them in the Philippines, she was pregnant with the offender's younger brother at the time. Stated that the offender and his younger brother were raised in the Philippines by her sister and brothers, confirmed that his childhood was difficult for him due to physical abuse that he suffered from his uncles. Asked her if she was aware of any sexual abuse in the offender's history, she was not. Confirmed that she was away a lot for work then became involved with a drug dealer, confirmed that the offender had observed her, his step father and uncles abuse drugs in the family home in the Philippines. Confirmed that the offender came to Australia with his biological father and elder step siblings in 1998, but had not had much [contact] with them before then. Stated that she had come to stay in Australia for 10 months when the offender's son was born, then met her current husband here…[58]
[58] RTB, 45.
Tragically, it is not uncommon for perpetrators of sexual violence against children to have experienced abuse as a child. This provides absolutely no justification or excuse for committing such offences although it does underscore the importance of addressing the harms involved in the sexual exploitation and abuse of young children.
CONCLUSION
In weighing the primary and other considerations I note the following:
Factors in favour of not revoking the mandatory cancellation:
(a)Protection of the Australian community (PC1)
(b)Family Violence (PC2)
(c)Expectations of the community (PC5)
(d)Impact on victims (OC3)
Factors in favour of revocation:
(a)Strength, nature and duration of ties to Australia (PC3)
(b)Extent of impediments if removed (OC2)
Factors that are neutral:
(a)Best interests of minor children in Australia (PC4)
(b)Legal consequences of the decision (OC1)
(c)Impact on Australian business interests (OC4)
On a quantitative basis, three primary considerations support non-revocation, and one points the other way. The ‘other’ considerations are evenly balanced. However, in a qualitative sense, I am satisfied that the combined weight of the factors affirming the reviewable decision outweigh all countervailing factors.
As a survivor of child abuse, and having done his time for the crimes committed, the applicant may feel aggrieved by this assessment. This is understandable. His acceptance that the Tribunal’s decision provides the best prospect of recovery for his family, including his stepdaughter, will stand him in good stead.
DECISION
The Tribunal affirms the reviewable decision of the delegate of the Minister dated 19 December 2022 not to revoke the mandatory cancellation of the applicant’s visa.
I certify that the preceding 122 (one hundred and twenty-two) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member
..................................[SGD]......................................
Associate
Dated: 21 March 2023
Date(s) of hearing:
2 March 2023
Applicant:
Self-Represented
Solicitor for the Respondent
Mr M Palfrey, HWL Ebsworth Lawyers
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