HKRC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2024] AATA 1119

HKRC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 1119 (17 May 2024)
Division:GENERAL DIVISION
File Number: 2022/10396
Re:HKRC
APPLICANT

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

DECISION
Tribunal:Deputy President Britten-Jones
Date:17 May 2024
Place:Sydney

The decision under review is affirmed
..........................[sgd]..............................................
Deputy President Britten-Jones
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – applicant has been convicted of crimes of a sexual nature against a minor – whether under s 501CA(4) of the Migration Act 1958 there is ‘another reason’ to revoke mandatory cancellation decision – the meaning of ‘formative years’ in paragraph 8.3(4) of Direction 99 - the primary considerations of the protection and expectations of the Australian community and family violence outweigh the countervailing considerations – even a low to moderate risk of reoffending is unacceptable because of the inherent seriousness of the applicant’s offending - decision under review is affirmed
Legislation
Migration Act 1958 (Cth)
Cases
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Khan v Minister for Immigration and Ethnic Affairs (1994) 35 ALD 47
Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
Nafeh v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 232
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Tupou v Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 2879
ZHRS v Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 2918
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)
REASONS FOR DECISION
Deputy President Britten-Jones
17 May 2024

This is an application for review of a decision to not revoke the mandatory cancellation of the applicant’s Resident Return (subclass 155) visa (the applicant’s visa) under s 501(3A) of the Migration Act 1958 (Cth).[1]
[1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.
THE DECISION TO CANCEL THE APPLICANT’S VISA AND SUBSEQUENT PROCEDURAL HISTORY
On 25 May 2020 the applicant’s visa was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment of over 12 months. His offending involved sexual abuse of a minor over a long period.
The applicant sought revocation of the cancellation decision and made representations in support of revocation on 28 May 2020.
On 19 December 2022 a delegate of the Minister decided not to revoke the cancellation decision (the non-revocation decision). The applicant sought review in the Tribunal and the Tribunal’s subsequent decision was set aside by the Federal Court on 28 November 2023. The remittal was heard by the Tribunal (differently constituted) on 23 and 24 April 2024.
LEGISLATIVE FRAMEWORK
Under s 501(3A), the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by sub-s (7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[2]
[2] s 501(7)(c).
Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)a written notice that sets out the original decision; and
(ii)particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(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.
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
ISSUES BEFORE THE TRIBUNAL
The applicant does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has a ‘substantial criminal record’ as defined under s 501(7). It follows that the applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.
Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is ‘another reason’ why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the applicant which I am required to read, identify, understand and evaluate.[3] Deciding whether or not to be satisfied that ‘another reason’ exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending.[4]
[3] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22] and [36].
[4] Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [14].
The applicant does not pass the character test. The only issue for the Tribunal is whether there is ‘another reason’ to revoke the cancellation decision having regard to the principles and considerations in Direction 99.[5] The applicant said in his reasons for requesting revocation that he knows how bad his behaviour was and that he is a low risk of reoffending.
[5] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023) (Direction 99).
Direction 99
The purpose of Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023) (Direction 99) is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA. Under s 499(2A), the Tribunal must comply with a direction made under s 499.
The relevant principles that the Tribunal must apply to the task of deciding whether to revoke a mandatory cancellation are set out in paragraph 5.2 of Direction 99 as follows:
(1)   Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on noncitizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)   Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(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 8.5(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.
In making a decision under s 501CA(4), the following are primary considerations:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
In making a decision under s 501CA(4), other considerations must also be taken into account, where relevant, including (but not limited to):
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[6]
[6] Direction 99 at 7.
BACKGROUND
The applicant was born in the Philippines. As a child he experienced significant trauma including sexual exploitation. He was sexually abused by members of his family from the age of five. He then engaged in sex work for money from the age of 12 to 16. He came to Australia in January 2001 when he was 20 years old.
The applicant commenced paid employment soon after arriving in Australia. His employment was impacted by a back injury incurred at work in 2009. He had surgery in 2012 but left his job in 2013 and started receiving Centrelink payments.
The applicant commenced a relationship with his wife in 2003. She had a daughter and a son from a previous relationship. The applicant and his wife had a son who was born on 8 August 2005.
From the age of 25 until he was 34, the applicant committed sexual offences against his stepdaughter for which he was later convicted. He has been in prison and immigration detention since 20 November 2014.
CONSIDERATION
Protection of the Australian community – 8.1 of Direction 99
When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. As required by paragraph 8.1(2) of Direction 99, I give consideration below 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 – 8.1.1 of Direction 99
The applicant has engaged in sexual abuse of a minor. The pattern of sexual abuse perpetrated by the applicant commenced in 2005 when the victim (his stepdaughter) was age 8, and ended when he was caught by the victim’s mother (his de facto). The victim was 17 years old at this time. The offending took place over a nine-year period during which the applicant admitted to sexually assaulting the victim on eight different occasions. The applicant pleaded guilty and was sentenced to an aggregate term of imprisonment of 10 years and six months. The sentencing judge took into account the age of the victim, the fact that the victim was under the authority of the applicant who was her stepfather, that the offending in each case constituted a gross breach of trust and that the offending involved the exploitation of a vulnerable child in her own home.
There are other less serious offences. On 5 March 2004, the applicant pleaded guilty to possessing stolen goods, resisting arrest and assaulting a police officer. He received a 12 month good behaviour bond and a fine. On 25 October 2005, the applicant pleaded guilty to resist or hinder police and received an 18 month good behaviour bond and a fine.
The applicant’s sexual abuse of his stepdaughter is of the most serious nature. It occurred over a nine year period when he was living with the victim’s mother and her daughter. The offending included penetrating his victim’s vagina with his finger when she lay in her bed. She was in year 5 at the time. At a later date he masturbated in front of her. In the final incident in November 2014 he forced himself upon her despite her physical and verbal protests and inserted his finger into her vagina. The offending only ceased when he was caught by the victim’s mother. These crimes are horrendous, having been committed against a young girl in her own home for such a long period.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 99
In considering the need to protect the Australian community from harm, I 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. As required by paragraph 8.1.2(2) of Direction 99, I 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).
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J (as she then was) in Tanielu v Minister for Immigration and Border Protection.[7] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
[7] (2014) 225 FCR 424; [2014] FCA 673.
Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 99
If the applicant were to engage in further similar criminal offending, then the nature of the harm would be most serious because of the inherent nature of aggravated sexual intercourse with a minor and its consequences upon the victim. In this case the victim has suffered significantly. The applicant admits in his statement that his conduct was evil and has caused so much pain to his stepdaughter and his family.
Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 99
The applicant says he knows what he did was wrong and that he would never do it again. He believes that his faith as a born-again Christian gives him ‘self-control’. He believes he has benefited from weekly appointments with a psychologist since January 2024. In detention he has commenced a SMART Recovery program. He appreciates that members of his family have forgiven him and he wants to do the right thing by them. He wants to repair his relationship with his son and be there for him. This provides an incentive to not reoffend. The applicant plans to move back in with his father if he is released and this would provide a stable environment with support which would help him to not reoffend. The applicant will also have access to professional support if released and he will be under supervision due to his need to report to Community Corrections and to comply with all conditions and requirements of the Child Protection Register. I was impressed with the applicant as a witness. It is apparent that he understands the dreadful impact that his offending has had on his stepdaughter. He expressed remorse and shame for this conduct and clearly found it very difficult to talk about.
The applicant contends that the fact that he was to be released on parole indicates that there is a low risk, or at least not an unacceptable risk, of reoffending. The pre-release report of 12 July 2022 refers to a willingness and ability to adhere to the basic requirements of a Parole Officer. The applicant says that the supervision requirements and restrictions applicable upon release into the community make it unlikely that he would be able to reoffend.

I take into account that the applicant pleaded guilty to the charges of sexual offending and that he has expressed genuine remorse to the Tribunal for his offending. His lengthy period in prison and detention has had a positive effect on him because it has given him an opportunity to reflect on his offending. Prior to the sexual offending, the applicant was involved in less serious offences for which there was no custodial sentence.
I take into account that there is a psychological assessment report dated 24 October 2022 from a psychologist engaged by the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS). The applicant was referred to STARTTS for an assessment of his emotional and mental health when he was in the Villawood Detention Centre. Whilst the STARTTS report was not directed towards assessing the applicant’s risk of reoffending, it does touch upon some matters relevant to the extent of his rehabilitation. The report recorded that the applicant was reticent regarding his sexual offending but that he did concede some links between his own exploitation as a child and expressed regret for not learning from this. The applicant expressed “deep contriteness for his actions, and their impact on his victims and family members”. The author reported that his insight and judgement also seemed appropriate, for example, expressions of repentance and remorse for his actions.
The STARTTS report noted that the impact of sexual exploitation and early substance use are significant and enduring and made recommendations including:
As an adult survivor, therapy would be essential to safely and delicately allow [the applicant] to process the impact of his compounded and cumulative ACES [adverse childhood experiences], especially with regards to sexual exploitation and grooming, on his current functioning. …
Ongoing rehabilitation is also necessary to provide him with necessary coping mechanisms, all to prevent relapse into substance use.
On 26 July 2017 a pre-sentence report[8] was prepared which recorded that the applicant attributed his offending behaviour to his own experience of childhood sexual abuse and his overactive sex drive. It was considered that the applicant would benefit from a period of supervision by Community Corrections and that case management strategies included referral to sex offender treatment programs and referral to psychological services to identify and address any mental health needs. The report records that the applicant was assessed as a low risk for sexual reoffending but that further assessments would need to be conducted by a psychologist in regard to sex offender treatment programs in order to adequately identify factors and triggers that contributed to his offending. In a separate paragraph, the applicant is assessed as a medium risk of reoffending based upon an actuarial risk/needs assessment tool.
[8] Pre-sentence report dated 26 July 2017 at p 227 of the respondent’s tender bundle.
The low risk assessment was derived from a pre-sentence consultation with a psychologist who prepared a report dated 25 July 2017.[9] This report says that the applicant’s risk of sexual reoffending was assessed using an actuarial risk assessment tool that considers historical factors and that based on that assessment the applicant’s score fell in the low risk category relative to other male sex offenders. The report noted that further exploration was required to accurately identify dynamic risk factors and to determine if the risk rating of low was an accurate reflection of his current risk of reoffending.
[9] Pre-sentence consultation report dated 25 July 2017 from Kylie Johnson, psychologist – p 333 of the respondent’s tender bundle.
I take into account the very positive report dated 18 April 2024 from the STARTTS psychologist who has been counselling the applicant since 11 January 2024. He referred to the applicant’s respectful demeanour and his commitment to the counselling process. He says that the applicant has taken responsibility for his past conduct and that he has used his time in detention positively to take steps towards improvement to be a better person.
The applicant has not engaged in any formal sex offenders rehabilitation program. He said that when he was first imprisoned he asked to do a sex offenders course but was not given the chance because he was moved. He said that he made further enquiries and always asked if he could participate in a program in prison, but he was then told that he did not qualify because his risk assessment was low.
The applicant said he would engage in appropriate rehabilitative programs if he were released and I have no doubt that he would. Whilst saying that he would not reoffend and that he is fully rehabilitated, the applicant still wants to do a course and to improve himself, which is very commendable and suggests that he has some insight into his wrongdoing and that he has reached a certain level of rehabilitation without significant professional help. However, it remains a concern that, despite his best efforts, the applicant has not been able to engage in a sex offenders program. In assessing the likelihood of reoffending, I am required to take into account the evidence of rehabilitation achieved by the time of my decision. In this case there is a lack of objective evidence as to rehabilitation because the applicant has not completed any formal rehabilitative course.
I am not satisfied on the evidence available to me that the applicant is adequately rehabilitated. His sexual offending took place over a nine year period. His sexual exploitation as a child lasted for about 11 years. He has been in prison or immigration detention since 2014 when he was caught out offending at the age of 34 years old. He has had no period in the community to prove himself since that last episode of sexual offending in 2014. The trauma of his sexual exploitation as a child has not been adequately dealt with and he has not undertaken the necessary rehabilitative course to address his own sexual offending. He requires further therapy and treatment with respect to his traumatic childhood and his lengthy period of sexual abuse of his stepdaughter.
In all of these circumstances, there remains a real risk, albeit at a low to moderate level, of further sexual offending. The nature of such offending is so serious that even a low or moderate risk is unacceptable.
Conclusion as to protection of the Australian community – 8.1 of Direction 99
The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[10] This case involved most serious harm to a minor and therefore the Australian community would have minimal tolerance for any risk of future harm. The conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated is unacceptable.[11] The applicant has committed most serious offending of sexual abuse of a minor over a lengthy period of time. Even a low or moderate risk of further offending of that nature is not acceptable. This is a factor that weighs very heavily against revoking the cancellation decision.
[10] Direction 99 at 8.1(1).
[11] Direction 99 at 8.1.2(1).
Family Violence – 8.2 of Direction 99
The applicant’s offending against his stepdaughter was family violence. The family violence continued over an extended period and culminated with his most serious offending. The cumulative effect of repeated offending is significant. The abuse affected his victim’s academic progress and caused a lasting psychological impact. She attempted suicide by taking an overdose of sleeping pills. She attended counselling sessions to overcome her grief. Whilst the applicant genuinely accepts responsibility for his conduct and understands its impact, and has made efforts to address factors which contributed to his conduct; he has not engaged in a rehabilitative program directed towards his sexual offending against a minor. His recent efforts to engage in counselling are a positive factor but it is my view, as I found above, that he is not sufficiently rehabilitated and that he poses an unacceptable risk of reoffending if he were released into the community.
This is a factor that weighs heavily against revoking the cancellation decision.
Strength, Nature and Duration of Ties to Australia – 8.3 of Direction 99
This primary consideration provides at paragraph 8.3 of Direction 99:
(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.
Impact on and ties with family members
If the applicant is unsuccessful and is not released from detention into the community, there will be a significant detrimental impact on the four immediate family members of the applicant, namely, his wife, his son, his mother and his father. I take into account the ties that the applicant has with these family members to whom he feels very close.
The applicant’s wife gave written and oral evidence to the Tribunal. She has forgiven the applicant and wants to be with him. She has health and financial issues and will be greatly assisted if the applicant were released so that he could support her. She will be devastated if he is not released, but if he were removed to the Philippines she would join him once her son moves out of home. If she were to move to the Philippines then she would be separated from her children which would be devastating for her and her children.
The applicant’s son is now 18 years old. The applicant is committed to seeking to repair their relationship and wants to be there for him. The impact of a non-revocation decision on the applicant’s son would be to remove the possibility of him re-establishing a relationship with his father. Further, I take into account that the applicant feels very close to his son who he helped raise. The applicant was a good father to his son, albeit that he has been removed from him since his son was 9 years old.
The applicant’s mother would also be greatly impacted by a non-revocation decision in particular because she has multiple serious health issues and is in need of greater family support. She gave written and oral evidence to the Tribunal and said that she wants her son to provide support for her. She would be devastated if he were removed to the Philippines.
The applicant’s father would also be adversely affected. He cares deeply for his son and has agreed to the applicant living with him upon his release.
The length of time in Australia
The applicant has lived in the Australian community since he was 20 years old. He arrived in 2001 but he has been in prison or detention since November 2014. He is now 44 years old.
The applicant contends that he has been in Australia during and since his formative years because, though he arrived at the age of 20, he was immature and he continued to develop after his arrival. The applicant’s mother and father gave supporting evidence with respect to his maturity. The applicant contends therefore that pursuant to clause 8.3(4)(a)(i) of Direction 99, I should give considerable weight to the fact that the applicant has been ordinarily resident in Australia during and since his formative years, regardless of when his offending commenced and the level of that offending.
The respondent contends that clause 8.3(4)(a)(i) of Direction 99 does not apply because the applicant spent his formative years in the Philippines.
I note that the phrase ‘formative years’ is not defined in Direction 99 but it also appears in clause 5.2(5) of Direction 99 which provides that the level of tolerance of criminal or other serious conduct will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
Formative is defined in the Macquarie dictionary as ‘pertaining to formation or development’. The Shorter Oxford English dictionary provides an illustrative quotation, ‘The formative years of his life, between the ages of five to twelve’.
In Khan v Minister for Immigration and Ethnic Affairs (1994) 35 ALD 47, Whitlam J considered favourably the reasons for decision by the relevant Minister’s delegate that referred to “the formative years when a child establishes its own identity, and learns and absorbs its background, culture and place in a community”. Whitlam J also favoured a construction of “formative years” “as meaning something other than relating to physical development”.[12]
[12] Khan v Minister for Immigration and Ethnic Affairs (1994) 35 ALD 47 at 51.
The Full Court of the Federal Court in Nafeh v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 232 at [6] considered ’formative years’ as an expression of wide meaning with indeterminate content.
In ZHRS v Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 2918, the Senior Member found that an applicant who had arrived in Australia aged 14 years old had not spent his formative years in Australia. The Senior Member at footnote 180 said:
In this regard, a person’s formative years would appear generally to be considered to be the years from birth until aged eight: see the UNICEF publication ‘The formative years UNICEF’s work on measuring early childhood development’, UNICEF (Online Document, 22 September 2019): < See also ‘Formative Years — Why Are They Important In Child Development’ a publication of Parenting for Brain, where it is said that the formative years are the time period between 0–8 years when the brain and neurobiological development are the fastest after birth-see < See also ‘Parenting: The Formative Years Are Crucial’ at <>
In Tupou v Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 2879, the Member said that the formative years are “usually regarded as the years between birth and about eight years of age when a child is developing their cognitive, social, emotional and physical functioning” but also considered an alternative that “formative years is co-extensive with childhood years, that is up to 18 years of age”.
Formative years is an expression of wide meaning with indeterminate meaning. It is my view that those formative years may end at a different age for different people. Formative years would generally extend beyond those years of very significant cognitive development (from birth until eight) and would most likely include the period of secondary education during adolescence up until when adulthood is attained. Given the indeterminate nature of the meaning of formative years, it would not generally be appropriate to attempt a precise numerical assessment of the number of formative years spent in Australia.
Clause 8.3(4)(a) provides guidance with respect to the attribution of weight that should be given to the length of time a non-citizen has resided in the Australian community.
Clause 8.3(4)(a)(i) of Direction 99 will have application if it is determined that a non-citizen has been ordinarily resident in Australia during and since their formative years. This provides a temporal element which would be satisfied if the applicant’s period of residence in the Australian community included their formative years. If that temporal element is satisfied, then considerable weight should be given to the length of time the non-citizen has resided in Australia. An obvious example of this would be when a non-citizen arrives in Australia as a young child. If only part of a non-citizen’s formative years were spent in Australia then, as part of the evaluative process of determining whether to revoke the cancellation decision, it would be open to a decision-maker to attribute weight to those years, but that, in my view, is not the case applicable to the applicant for the reasons that follow.
There is very little evidence to support the applicant’s contention that his formative years included a period from the age of 20 when he resided in Australia. The applicant’s father gave oral evidence that when the applicant came to Australia he was immature and ‘still like a boy’ adjusting to the Australian culture and growing up. He said that the applicant only fully adjusted when his son was born. The applicant said that when he arrived ‘I was really still a kid’. He said that it was in Australia that he learnt to become independent and to work full time.[13]
[13] Applicant statement dated 19 March 2024 at [27].
The evidence that the applicant had exhibited a degree of increased maturity was not supported by an independent authoritative opinion. There was no probative evidence as to the extent of any increase and whether it amounted to material further development of the applicant. The mere fact that the applicant says that he matured upon arrival in Australia and that his mother and father noticed his increased maturity is not sufficient to ground a finding that the applicant has been ordinarily resident in Australia during his formative years.
The applicant was born on 14 February 1980 and came to Australia on 24 January 2001 which is three weeks before his 21^st birthday. By that time, he had finished high school in the Philippines and started a college degree that he did not finish. Education is an important part of the development and formation of a person. The applicant’s primary and secondary education and the commencement of his tertiary education all took place in the Philippines. When he came to Australia the applicant may have felt that he “was really still a kid”[14] but he was ready for the workplace which he entered in March 2001.
[14] Applicant statement 19/3/24 at [27].
Having arrived in Australia just before his 21^st birthday and having attained adulthood in the Philippines and completed all his formal education, it is my view that the applicant spent his formative years in the Philippines where he grew up and was educated. He cannot be said to have been resident in Australia during and since his formative years. The mere fact that the applicant may have exhibited some signs of increased maturity since arriving in Australia does not mean that he has been resident in Australia during his formative years. I conclude that clause 8.3(4)(a)(i) has no application in this case. If I am wrong about that, then I consider that it is open to me to attribute little weight because at best for the applicant he has spent only a small part of his formative years in Australia; the majority of his formative years were spent in the Philippines when he grew up and attained adulthood.
Other ties

I take into account that the applicant has had a good work history. He obtained employment in March 2001 very soon after arriving from the Philippines. This is commendable. He continued working up until 2013 and only stopped because of a work related injury. He met his wife when working in a factory in Waterloo. I have no doubt that he formed other relationships from his time of employment.
The applicant was a compliant prisoner and there were no significant issues whilst in prison or detention. He participates in a Christian support group in detention and he has established close connections with other detainees in this group.
Conclusion as to ties to Australia
I conclude that the applicant has made a significant and commendable contribution to the Australian community through his employment for about 12 years. He has considerable ties to Australia through his family and because of the length of time he has been here. I take into account the devastating impact on his wife if he is not released, and also his son, mother and father. The strength, nature and duration of the applicant’s ties to the Australian community are a factor that weighs in favour of revoking the cancellation decision.
Best interests of minor children – 8.4 of Direction 99
The applicant accepts that there are no minor children affected by the decision.
Expectations of the Australian community – 8.5 of Direction 99
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[15] The applicant has failed to obey the laws of Australia and would therefore be expected to be removed from the community. His criminal conduct was very serious and took place over a nine year period. The nature of the applicant’s offending, being sexual abuse of a minor over an extended period of nine years, is such that the Australian community would expect that he should not continue to hold a visa.[16]
[15] Direction 99 at 8.5(1).
[16] Direction 99 at 8.5(2).
The applicant contended that he should be afforded a higher degree of tolerance because he was in the Australian community during his formative years. I have dealt with a similar contention above, but I will deal with it again insofar as it relates to expectations of the Australian community. The applicant accepts that he came to Australia as an adult aged 20 years old but contends, as I have previously stated, that he was very immature and that much of his development occurred after his arrival in Australia.
The principle at paragraph 5.2(5) of Direction 99 says:
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.
The applicant has lived in the Australian community for most of his life because he is now 44 years and he arrived when 20 years old. To put it another way, he has lived in Australia for just over half of his life and therefore he should ‘generally’ be afforded a higher degree of tolerance. As to the level of tolerance, the principle provides that it will rise with the length of time spent in the Australian community particularly in their formative years. The applicant has spent 24 years in the Australian community albeit the last 10 years have been spent in custody and detention. Leaving aside the question as to whether his time in Australia included his formative years, 24 years is a significant period of time and the applicant should be afforded a higher degree of tolerance than if he had only just arrived in Australia and been here for a short period of time.
However, I am not convinced that he should be afforded an even higher degree of tolerance on the basis of the contention that some formative years have been spent in the Australian community. As set out above in these reasons, one’s formative years are generally considered to be those years as an adolescent during which one receives a primary and secondary education. The applicant was educated in the Philippines and arrived in Australia as an adult aged 20 years old. The fact that he may have increased in maturity since he arrived does not mean that he spent his formative years in the Australian community. If I am wrong about that, then I would give minimal weight to any additional tolerance that should be afforded because, on any reckoning, the majority of his formative years were spent in the Philippines and not in the Australian community.
I conclude that the expectations of the Australian community is a factor that weighs heavily against revoking the cancellation decision.
Other Considerations
In deciding whether there is ‘another reason’ to revoke the cancellation of the applicant’s visa, I must also take into account the ‘other considerations’ listed in Direction 99 where relevant, but these are not exhaustive.[17]
[17] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.
Legal Consequences of Decision – 9.1 of Direction 99
The applicant has raised fears about returning to the Philippines but accepts that those issues should be dealt with under the extent of impediments if removed. This factor of legal consequences requires no consideration because it is not relevant.
Extent of impediments if removed – 9.2 of Direction 99
Direction 99 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to the Philippines in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to him in that country.
The applicant would face some relevant impediments if he were removed to the Philippines. The applicant has limited social support in the Philippines because, while his brother and his mother’s extended family remain there, they are not in a position to be able to support him. The applicant also has health issues that provide a significant impediment to him finding employment. He would be unable to engage in manual labour because of his workplace injury to his neck. Unemployment in the Philippines is high and as a person with a disabling injury he would find it difficult. His age and lack of education would also contribute to the difficulty in getting employment. His mental health issues of anxiety, depression and PTSD would raise further impediments because of the shortage of mental health specialists in the Philippines. These impediments would be compounded by the applicant’s experience of trauma, including sexual exploitation as a child in the Philippines and witnessing the murder of his friend.
The applicant has also expressed fear of harm because of his criminal history in Australia.
The above impediments are significant but it is relevant to note that the applicant lived in the Philippines until he was 20 years old and is therefore unlikely to face any substantial language or cultural barriers.
I conclude that the extent of impediments if removed weigh in favour of revoking the cancellation decision. I give this factor moderate weight. It would be very difficult for the applicant to return to the Philippines and it is likely that his mental health would deteriorate because of triggers associated with the sexual abuse he suffered as a child there.
Impact on victims – 9.3 of Direction 99
There was no direct evidence of impact on victims within the meaning of Direction 99. The information contained in the victim impact statement in the sentencing remarks dates from 2014 and is addressed to the impact of the applicant’s offending, not any impact of a decision whether he is permitted to remain in Australia or is to be removed to the Philippines. The applicant has had no further contact with his stepdaughter and I accept his evidence that he would not contact her if released into the community. It could be inferred that the revocation of the cancellation decision and the return of the applicant to the Australian community would cause concern to and have a negative impact upon his stepdaughter but, in the absence of any evidence from her, I’m not prepared to make that inference. This factor is neutral.
Impact on Australian business interests – 9.4 of Direction 99
There was no evidence of impact on Australian business interests within the meaning of Direction 99. This factor is neutral.
CONCLUSION AS TO WHETHER TO REVOKE THE CANCELLATION OF THE VISA
I have considered the specific circumstances relating to the applicant as part of my consideration. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether I am satisfied that there is ‘another reason’ to revoke the cancellation decision.[18]
[18] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [26] and [36]-[38].
The primary considerations of the protection and expectations of the Australian community and family violence weigh heavily against revoking the cancellation decision. The countervailing considerations are the applicant’s ties to Australia and the extent of impediments if removed.
The applicant accepts that his offending was very serious. He even described it as ‘evil’. However, he says that he will not reoffend because he has learnt his lesson whilst being removed from the community for the last 10 years. I do not doubt that the applicant holds a genuine view that he will not reoffend but he has not undertaken any rehabilitative course directed towards his sexual offending and his stated intentions have not been tested in the community. I consider there to be a real risk that, having not achieved an appropriate level of rehabilitation, he will reoffend. The inherent nature of child sexual abuse is so serious that even a low or moderate risk of reoffending is not acceptable.
I have concluded that the countervailing considerations in favour of the applicant are insufficient to outweigh the primary considerations of protection and expectations of the Australian community and family violence.
I reach this conclusion by applying the principles in paragraph 5.2 of Direction 99 to the specific circumstances of the applicant, who has pleaded guilty and been convicted of offences including the very serious crime of aggravated sexual intercourse against a minor.
(a)Being able to remain in Australia is a privilege Australia conferred on the applicant in the expectation that he would be law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.[19] The applicant has not been law-abiding; and he has caused the most serious harm to a female child in the Australian community.
(b)The applicant, as a non-citizen who has repeatedly committed serious crimes of a sexual nature against a minor over a period of nine years, should generally expect to forfeit the privilege of staying in Australia.[20]
(c)The Australian community expects that the Australian Government should cancel the visas of non-citizens who commit crimes in Australia which raise serious character concerns.[21] This expectation of the Australian community applies regardless of whether the applicant poses a measurable risk of causing physical harm to the Australian community.
(d)With respect to the level of tolerance of criminal conduct that Australia will generally afford, the applicant has lived in the Australian community since he was 20 years old and therefore for most of his life.[22] He is therefore entitled to a higher degree of tolerance in relation to his criminal offending but he has not lived in Australia ‘from a very young age’ and I have rejected the applicant’s submission that he spent his ‘formative years’ in the Australian community. He is now 44 years old.
(e)This is a case where the nature of the applicant’s conduct and the harm that would be caused if it were repeated are so serious that even strong countervailing considerations would be insufficient to justify revoking the cancellation decision. The inherent nature of the crime of aggravated sexual intercourse with a child which is a crime mentioned in paragraph 8.5(2) of Direction 99, is so serious that it outweighs any countervailing considerations even if the applicant did not pose a measurable risk of causing physical harm to the Australian community. [23]
[19] Direction 99 at 5.2(1).
[20] Direction 99 at 5.2(2).
[21] Direction 99 at 5.2(3).
[22] Direction 99 at 5.2(5).
[23] Direction 99 at 5.2(6).
It follows from the application of these principles that I am not satisfied that there is ‘another reason’ why the cancellation decision should be revoked.
DECISION
The decision of the Tribunal is to affirm the decision under review.

I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

...........................[sgd].............................................
Associate
Dated: 17 May 2024

Date(s) of hearing: 23 & 24 April 2024

Counsel for the Applicant: Kate Bones

Solicitors for the Applicant: Legal Aid New South Wales

Counsel for the Respondent: James Walker

Solicitors for the Respondent: HWL Ebsworth Lawyers

Date(s) of hearing:	23 & 24 April 2024
Counsel for the Applicant:	Kate Bones
Solicitors for the Applicant:	Legal Aid New South Wales
Counsel for the Respondent:	James Walker
Solicitors for the Respondent:	HWL Ebsworth Lawyers