HLKD and Minister for Home Affairs (Migration)

[2019] AATA 4679

HLKD and Minister for Home Affairs (Migration) [2019] AATA 4679 (12 November 2019)

Division:GENERAL DIVISION

File Number(s):      2019/5188

Re:HLKD

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:12 November 2019

Place:Melbourne

The Tribunal decides to affirm the decision under review.

.....................[sgd].............................................

Senior Member D. J. Morris

Catchwords

MIGRATION – mandatory cancellation of Class BF transitional (permanent) visa – applicant has substantial criminal record – failure to pass character test – delegate decides not to revoke mandatory cancellation of visa – consideration of ministerial Direction No. 79 – primary considerations – serious sexual offending – many dishonesty offences – denial of sexual offending – best interests of minor children – care of minor grandchildren – other  considerations –– any other reason – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), ss 33A, 35
Migration Act 1958 (Cth), ss 499, 501, 501CA
Migration Reform (Transitional Provisions) Regulations 1994 (Cth)

Migration Regulations 1994 (Cth), reg 2.52

Cases
Du Pont and Minister for Immigration and Ethnic Affairs; Re (1983) 5 ALN N143

FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
Maxwell v The Queen [1996] HCA 46; 184 CLR 501
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234

Secondary Materials

Migration Act 1958 – Direction No. 79 - Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Made 20 December 2018/commenced 28 February 2019)

REASONS FOR DECISION

Senior Member D. J. Morris

12 November 2019

1. The Tribunal made an order under section 35 of the Administrative Appeals Tribunal Act1975 (Cth) (‘the AAT Act’) to prohibit the publication of the name of the Applicant in this matter. He will be referred to by the anonym ‘HLKD’. The identity of certain other persons will also be anonymised, lest they have the effect of identifying the Applicant.

2. HLKD was born in 1959 in the United Kingdom and is a citizen of that country.  He first entered Australia in 1964, migrating with his parents and his two siblings.  On 1 September 1994, by operation of law under the Migration Reform (Transitional Provisions) Regulations 1994 (Cth), HLKD became the holder of a Class BF transitional (permanent) visa (‘the visa’). The visa was cancelled on 14 June 2017 under section 501(3A) of the Migration Act1958 (Cth) (‘the Act’). On 21 August 2019 a delegate of the Respondent decided not to revoke the mandatory cancellation of HLKD’s visa.

3. HLKD was notified of the delegate’s decision on 22 August 2019 and advised that he had the right to apply for the Tribunal to review the delegate’s decision. On 23 August 2019 HLKD applied to the Tribunal for review of the delegate’s decision. The Tribunal hearing took place on 31 October and 1 November 2019.

4. HLKD was represented at the hearing by Mr Malintha De Mel, solicitor. The Applicant gave evidence and was cross-examined by Ms Melinda Jackson of The Australian Government Solicitor, representing the Respondent. The Applicant’s mother (‘AZ’), sister (‘AS’), brother (‘AB’), former spouse (‘PL’) and two friends (‘TS’ and ‘RP’) also gave evidence, in some cases with the leave of the Tribunal under section 33A(1) of the AAT Act, by telephone.

5. The Tribunal took into evidence three groups of documents collated by the Respondent: ‘G’ documents, supplementary (‘SG’) documents and further supplementary (‘FSG’) documents. The parties provided to the Tribunal written Statements of Facts, Issues and Contentions. The Tribunal also admitted into evidence two other documents not otherwise previously provided, a statement from one of HLKD’s sons, ‘AD’ (Exhibit A1) and a statement from a friend, ‘AK’ (Exhibit A2).

   Legislative framework

6. Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period, provided for in the Migration Regulations 1994 (Cth) (28 days in accordance with reg 2.52), and the decision-maker determines that the Applicant passes the ‘character test’, or, as provided for under section 501CA(4)(b), there is another reason why the mandatory cancellation decision should be revoked. The Minister accepted that the Applicant had made representations within the prescribed period.

7. Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, under section 501(6)(a) of the Act, the person has a substantial criminal record as defined by section 501(7). Relevantly, section 501(7) states:

   (7) For the purposes of the character test, a person has a substantial criminal record if:

   …

   (c) the person has been sentenced to a term of imprisonment of 12 months or more; …

8. Section 501CA of the Act relevantly provides that:

   (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.

   …

   (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.

9. If the Tribunal finds that HLKD fails the character test, the sole issue before the Tribunal becomes, then, whether there is another reason why the original decision to cancel the visa should be revoked. In Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338, North ACJ stated, at [38]:

   The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked…

10. The Tribunal had before it (G, p 19-27) the Reasons for Sentence of the sentencing Judge in the County Court of Victoria in 2016.  HLKD was convicted of the crime of rape and sentenced to 36 months’ imprisonment with a non-parole period of 24 months.

11. On the evidence, the Tribunal is satisfied that HLKD has a ‘substantial criminal record’ as defined in section 501(7)(c) of the Act because he has been sentenced to a term of imprisonment of 12 months or more. On the facts of the convictions made against him and the sentence imposed in 2016, the Tribunal finds that the Applicant fails the character test under section 501(3A)(a)(i) of the Act. As such, the remaining task is for the Tribunal to determine whether there is another reason why the mandatory cancellation of the visa should be revoked.

    The Ministerial Direction

12. Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act. The delegate who refused to revoke the cancellation of HLKD’s visa consulted Direction No. 79 (‘the Direction’), made under section 499. The Tribunal must, under section 499(2A) of the Act, comply with the Direction in considering this matter. Paragraph 6.1 of the Direction states, in part:

    6.1Objectives

    (1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

    …

    (3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen 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. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

13. Relevantly, the Direction includes the following principles at paragraph 6.3:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.

    (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

14. In deciding whether or not to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part C, which is divided into ‘primary considerations’ and ‘other considerations.’ The primary considerations in Part C are set out in paragraph 13(2) of the Direction. They are: ‘Protection of the Australian community from criminal or other serious conduct;’ ‘The best interests of minor children in Australia;’ and ‘Expectations of the Australian community.’

15. Other considerations set out in paragraph 14(1) of the Direction are: ‘International non-refoulement obligations;’ ‘Strength, nature and duration of ties;’ ‘Impact on Australian business interests;’ ‘Impact on victims;’ and ‘Extent of impediments if removed.’ The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and 8(5) of the Direction). The Tribunal has considered each of the primary considerations and, as relevant, the other considerations.

    Background to the Applicant’s offending

16. The offending which founds the Tribunal’s jurisdiction was the conviction for the crime of Rape.  HLKD does, however, have a prior offending history which was set out in a National Police Certificate (G, p 14-18).  The certificate lists 17 other court appearances which led either to convictions or charges proven.  HLKD’s previous offences can be conveniently grouped into three broad categories: Miscellaneous offending; Crimes against the person; and Dishonesty offences.

    Miscellaneous offending

17. The Applicant first appeared in the Melbourne Magistrates’ Court in February 1983 and was convicted of the offences of Wilfully damage property and Fail to exchange name and address and fined $210.  In September 1983 at Sunshine Magistrates’ Court he was convicted of the offences of Possess/keep contrivance of gaming (3 charges), and fined $100 on each charge.   At Ferntree Gully Magistrates’ Court in November 1990 HLKD was convicted of the offence of Carry firearm whilst drunk; Fail to safely store firearm and Possess unregistered firearm.  In February 2016 at Southport Magistrates’ Court in Queensland, the offence of Possessing dangerous drugs was proven against HLKD but no conviction was recorded.

    Crimes against the person

18. The Applicant appeared in the County Court in Melbourne in April 1986, was convicted of the offence of Assault police, and fined $50.  In November 1996 he appeared at Heidelberg Magistrates’ Court where the charges of Criminal damage (intent damage/destroy) and Unlawful assault were found proven and the Applicant was fined an aggregate of $1,000, but no conviction was recorded.  At Southport Magistrates’ Court in June 2012 a charge of Common assault was found proven, no conviction was recorded and a fine of $2,000 was imposed.  As mentioned above, in 2016 HLKD was convicted in Melbourne of the crime of rape.

    Dishonesty offences

19. At Brisbane District Court in 1989 HLKD was convicted of the crimes of False pretences, Attempted false pretences (2 charges) and on each charge the Court placed him on a recognizance of $2,000 and an undertaking to be of good behaviour for three years.  In June 1995 HLKD appeared at Heidelberg Magistrates’ Court and was convicted of the offences of Obtain property by deception and Obtain financial advantage by deception.  He was sentenced to two months’ imprisonment on each charge, suspended for a period of two years.  HLKD was also on the same day convicted of two charges of Attempt obtain property by deception, for which he was fined $250 on each charge.

20. In April 1996 HLKD appeared at the County Court in Melbourne and was convicted of 20 charges of Obtain property by deception.  The Court sentenced him to six months’ imprisonment on each count, to be served concurrently, and suspended the sentence for 24 months.  HLKD was also ordered to pay $8,086 compensation.  In May 1996 HLKD appeared at Prahran Magistrates’ Court and was convicted of the offence of Obtain property by deception, for which he was fined $2,000.

21. In October 1996 the Applicant appeared at Melbourne County Court and was charged with 54 counts of Theft, for which he received a sentence of three months’ imprisonment on each count, suspended for two years.  He was also separately charged with nine counts of Theft, and received a Community Based Order for 12 months with a requirement to perform 250 hours of unpaid community work.  He was also ordered to pay $44,865 restitution.  In relation to the 54 charges of Theft, HLKD returned to Court in October 1997 and was convicted of Breaching a Community Based Order.  The Order was cancelled and a substituted penalty of three months’ imprisonment on each charge, concurrent, was imposed, with the sentence suspended for 18 months.

22. In December 2004 HLKD appeared at the County Court in Melbourne and was convicted of the offence of Obtain financial advantage by deception, for which he was sentenced to 15 months’ imprisonment, suspended for three years.  He was also convicted of the offence of Attempt to obtain financial advantage by deception, and received a sentence of nine months’ imprisonment, suspended for three years.

23. In April 2014 at Southport Magistrates’ Court, the following charges were found proven against HLKD: Forgery; Utter forged document; Utter valuable security, insurance policy, testamentary instrument or registration document; Use thing to forge document (2 charges) and Fraud – dishonestly gain benefit/advantage (2 charges). The Court did not further punish the Applicant in relation to these offences.

    Other sanction

24. The Respondent submitted to HLKD that on 3 August 2001 the Australian Securities and Investment Commission (ASIC) had imposed a lifetime ban on him operating as a dealer or investment adviser.  HLKD conceded that was the case.  He said that he had been operating as an undischarged bankrupt but said he was not aware that was the case. He said that he later found out that another party had applied for an order in his absence, which had been granted. He said that he told ASIC of this situation and ASIC decided to ban him for life because of this, and because of other fraud matters found against him.

    The rape offence

25. In terms of the conviction for Rape, the circumstances of HLKD’s offending were set out by the Judge in his Reasons for Sentence (G, p 20-22).  In summary, the Judge found that in April 2008 HLKD visited a woman at her home; someone he had known for some years.  He also knew her husband and her children. She had separated from her husband and was living with her three young daughters in a residence that the Applicant had visited many times before.  HLKD visited in the evening, bringing with him some Jim Beam bourbon.  They sat down to talk.  He poured them both a drink.  They both partook but the victim poured some of the drinks she was given down the sink.  The bourbon ran out so HLKD went with two of the children to a drive-in bottle shop and returned with another bottle.  The children went to bed.  After talking for a while, HLKD said he should be getting home.  The victim said he shouldn’t be driving and offered that he sleep on her couch.  The victim then retired to her own bedroom.  As was her custom, she locked the door of the bedroom.  However, there was another door which led into a bathroom, which remained unlocked. 

26. The jury found that HLKD entered the victim’s bedroom unasked, undressed and lay with her in the bed.  He began kissing her on her face and body.  Realising that she was not consenting or giving no thought as to whether she was consenting, HLKD inserted his two fingers into the victim’s vagina.  The victim believed this continued for some ten minutes.  He said she kept telling HLKD to get off and get out.  This conduct gave rise to the charge of rape. 

27. Eventually, HLKD got off the bed and dressed.  The victim told him to leave.  HLKD said he was not in a position to drive.  The victim told him he could sleep in the driveway.  HLKD left.  The next morning the victim received a text message saying words along the lines of ‘How dare you let me drive home, I got stopped for drink driving and I’ve lost my licence’.  The victim replied along the lines of: ‘how dare you do what you did to me’.

28. The next week the victim told her ex-husband that HLKD had been around to her house and she was woken by him coming into her room and ‘making advances’.  Some years later, when they were older, the victim told her children about the offending.  The victim disclosed the offending to police in 2013.  HLKD was arrested in October 2013.  He admitted knowing the victim but declined to answer any other questions.  A traffic infringement notice given to HLKD was discovered and showed that he was intercepted by police near the victim’s home and fined, early in the morning of a day in April 2008.

1. The Applicant had previously advised the Tribunal that he appealed against the sentence imposed by the County Court.  At FSG p 551-567 was the judgment of the Court of Appeal of the Supreme Court of Victoria.  HLKD brought two grounds of appeal to the Court of Appeal, but withdrew one.  The remaining ground of appeal was that the verdict was unsatisfactory in that it was unreasonable or incapable of being supported having regard to the evidence.  The Court of Appeal dismissed HLKD’s appeal.

   Evidence of HLKD

2. HLKD confirmed to the Tribunal that he came to Australia aged around 4 when his family emigrated.  He completed school to year 12.  He undertook courses of academic study including, he said, a diploma in acting, half of a degree in engineering, some of a degree in business and a diploma in financial planning.  He said that he had worked most of his adult life, mostly running his own businesses.

3. In terms of his ban by ASIC, HLKD said he was working as an undischarged bankrupt, which was not allowed, and ASIC decided to ban him.  He said he did not know that ‘the person had taken me to court’, by which the Tribunal inferred HLKD was saying he was not aware at the time that he was bankrupt.  He continued, however, to work in the financial service industry, telling the Tribunal he was permitted to work as a finance broker but not allowed to work in the insurance or securities areas.

4. When asked by the Respondent whether he took the ASIC-imposed ban as a warning to perhaps find work outside the broader financial service industry, HLKD said he ‘took it as what it was’ and said he made telephone inquiries of ASIC to ensure he was able to continue to work in other areas in the industry to which the ban did not apply.

5. HLKD said he had some memories of the United Kingdom before coming out to Australia.  He said that while he has travelled overseas since settling in Australia, he had never returned to the UK.  The Applicant told the Tribunal he had six cousins and an aunt and uncle in Britain, but he had not kept in contact with any of them.

6. HLKD told the Tribunal about an historical back injury he sustained as a result of a car accident which still caused some back pain, but he had reduced the medication he took for this condition to Panadol Osteo and Meloxicam, an anti-inflammatory drug.  He said he had spondylosis in the thoracic spine but otherwise had kept fit and regarded himself as healthy and well.

7. HLKD spoke about his children.  He said he began a relationship with his first wife aged 18 and was a father by the age of 22.  He said he had a tumultuous relationship with his first wife, PL.  They had two children together, a daughter ‘AL’ (born 1981) and a son, ‘AA’ (born 1985).  He subsequently married again, and with his second wife had another son, ‘AD’ (born 1991) and a daughter, ‘AH’ (born 1993).

8. HLKD told the Tribunal that he had almost no contact with his second child, AA, who is in the Australian Army, or with his younger daughter, AH.  He said the most problematic of his children has been his older daughter, AL, who in his words, ‘went off the rails as a teenager, when aged 14 or 15’ and herself became a mother at 18.  AL’s first partner developed psychosis and ended his own life.  AL then entered a new relationship but HLKD said both she and her new partner became involved with drug taking, progressing to methylamphetamine, and he said AL became, and remains, addicted to drugs.

9. AL has had five children.  The oldest is an adult (born 1999) who now lives with his own partner. AL then had two sons (born 2005 and 2009) with her first partner but that relationship ended.  These two children now live with their father and his new partner in Queensland.  AL then re-partnered and had a son (born 2014) and a daughter (born 2015).  Lamentably, HLKD told the Tribunal that the father of these children also has a drug addiction.  Their father has custody of the two children.

10. HLKD said that he spoke to AL two weeks before the hearing.  He said ‘if she’s not using, I’ll speak to her regularly.’  He said that he had spoken to her about the visa cancellation process and his appearance before the Tribunal.

11. The Respondent submitted that the Tribunal should doubt the veracity of a typed but unsigned and undated statement said to be from AL that was before it (G p 252-253).  HLKD said that AL had told him on the telephone that ‘she wants me to get my visa back but doesn’t feel she could help me’.  He said that AL provided her unsigned statement direct to the law firm then representing him when he made representations to the Department about the revocation of the cancellation of his visa.  HLKD said he thought the statement was provided somewhere in mid-2017.

12. HLKD said he didn’t know AL’s current whereabouts because she moved around, often renting a room in a share house.  He did not believe she had a current partner.

13. In terms of his younger son, AD, the Applicant said he ‘recently had a couple of emails from him but they had a strained relationship’.  HLKD said that he had not spoken to him since October 2017 but a number of weeks before the hearing AD contacted HLKD’s sister and said he didn’t think his father should be deported.  AD currently lives in Queensland and before the Tribunal was an email and statement (Exhibit A1) from him in which AD says he did not want to provide a statement in the form of a statutory declaration because he did not want to disclose his address or occupation.  HLKD said this was because AD did not want his father to know where he lives.

14. The Respondent submitted that the statement from AD was unsigned and undated and should therefore be given limited weight, because its authorship could not be verified.

15. In terms of AH, his youngest child, HLKD said he had not spoken to her since ‘mid to late 2018, on the phone’.  He said AH had previously visited him when he was serving his prison sentence, ‘about two years ago’.  He said he had not asked AH to provide a statement of support in these proceedings because he did not want to put her under pressure unless she wanted to do it of her own volition.

16. In terms of his grandchildren, HLKD said he last saw any of them about three and a half years ago, he thought at the home of his first wife, PL.  He said that his daughter AL had, in his knowledge, not seen her own two younger children for ‘at least months’ and he couldn’t be sure when she last saw the three older ones.

17. In terms of his past offending, HLKD said that the 1983 conviction of wilful property damage related to him hitting the bonnet of a car, which left a dent.  In relation to the 1986 conviction for assaulting police, HLKD said he remembered a female police officer grabbing his hair in an encounter but he couldn’t otherwise remember the details because of the passage of time.

18. In terms of the 1990 firearms offences, HLKD said he was arguing with a then partner when drunk and neighbours called the police.  At the time he said he had been cleaning a firearm and when the police arrived they saw it unsecured at his residence and laid the charges.

19. In relation to the 2012 common assault offences, HLKD said this related to an altercation with the manager of a rental property he was in, who he said ‘became belligerent so I backed her gently out the door’.  The Respondent took the Applicant to the details of the offending outlined in a Queensland Police document (SG p 493), included a statement that he verbally abused the manager, lunged forward, grabbed her with both shoulders and shoved her out the door of the unit.  HLKD denied this description of what occurred.

20. The Respondent put to HLKD that a number of encounters he had over the years had escalated into violent offences.  HLKD said he agreed with that: ‘there is no doubt I had some issues.  I had to learn how to control my anger.’

21. In terms of the 1989 false pretences offences, HLKD said he had an agency with Zurich Life and entered details of a fake policy to get commission of ‘a few thousand dollars’.  He said he entered three fake policies into the computer system in order to get commission, but only got paid commission on one.  HLKD said Zurich Life found out and he was prosecuted, pleading guilty to the charges.

22. In terms of the 1995 convictions for obtaining property by deception, HLKD told the Tribunal that he bought two video cameras, one for himself and one for a friend but found that his friend had bought one cheaper, so he took one back for a refund. 

23. HLKD was then taken to a Victoria Police incident summary report dated 11 March 1994 which stated:

    Offender [name and date of birth redacted] attended at Myer Eastland on 9.3.94 and passed a $600 cheque to pay off his Myercard (he owed $3500).  The cheque account had no funds to cover it.  He then went to Knox Myers and purchased 2 Sony camcorders worth $1849 each on his Myercard.  Later that day he tried to refund one camera at Knox but was unable to.  On 11.3.94 he attended Doncaster Myer and tried to get a refund on one camera but they also refused.  He was arrested by police at Myer Doncaster.  He was interviewed and charged and bailed.

24. When asked directly by the Tribunal whether he remembered going to three different branches of the department store, HLKD said ‘I can’t shed too much light on that, I’m sorry.’

25. In terms of the 20 charges for obtaining property by deception of which he was convicted in 1996, HLKD said ‘someone wanted to over-draw.  I showed him how to do it and gave him a company cheque.  I don’t know how it came to 20.  I pleaded guilty.’

26. In terms of the May 1996 conviction for obtaining property by deception, HLKD said it related to a cheque he gave a bookmaker.  He said he then paid the bookmaker the money he owed him in cash, but the bookmaker still presented the cheque, for which there were no funds.  HLKD said he accepted he was convicted in relation to presenting a dishonoured cheque.

27. In relation to the October 1996 range of offences for theft, totalling 63 charges, HLKD said some clients of his financial business owed him money but he felt he couldn’t ask them for it as they were long-standing customers.  He said that he asked them to make a loan for him which HLKD would then invest.  He said he was ‘too soft and stupid’ and breached ASIC rules because he was not entitled to borrow money from a client.  He told the Tribunal that the large number of charges was because each debit from the account was treated as a separate charge.

28. In terms of his 2004 convictions for obtaining financial advantage by deception, HLKD said he was going to Malaysia with his wife for a seminar, had left some signed but otherwise blank cheques in the company safe, and that a colleague had used them without his knowledge.  He said he didn’t want to tell the Court who the colleague was because he’d been a friend of 20 years, even though he knew there was a risk he could go to prison.

29. HLKD was taken to a Victoria Police incident summary report dated 2 August 2001 (SG p 339) which stated:

    In March 2000, two accounts were opened at ANZ Bank in the names of [the Applicant and his company].  During the period 26/4/2000 and 3/10/2000 valueless cheques were continually deposited into these accounts and drawn against before the cheques were dishonored [sic] to the value of $54,700.00.  Spoke to (omitted) ANZ Bank re above stated CBA had a similar file with the same offender.  Spoke to (omitted) who stated he had a file with suspect [Applicant’s name redacted] with the same M.O.  

30. HLKD said he could not have committed these offences ‘because I was overseas’.  He was then taken to the movement record before the Tribunal which records departures and arrivals from Australia against his passport number. It shows that at that time he was absent from Australia on his trip to Malaysia from 26 September to 5 October 2000, and the offending recording in the police report spanned a much longer period, from April to October 2000.  HLKD was asked whether he accepted that his actions were dishonest, but responded that they were not, because his colleague ‘got a discount.  There were certain aspects I am guilty of.’

31. In terms of the uttering and other forgery charges of which he was convicted in Queensland in 2014, HLKD said he had legally changed his name, and was wanting to revert to his birth name but needed certain documents urgently, so he fabricated a fake birth certificate and other documents.  He said his life was ‘in a complete mess’ at the time and when he explained the circumstances to the Court, no conviction was recorded (which the Tribunal notes is consistent with the contents of the National Police Certificate).

32. In terms of the events on the evening which led to his conviction for rape, HLKD said he had known the victim and her husband for years and knew they were going though marriage difficulties.  He knew the victim and her husband had separated and were living apart.  He said he went over to visit the victim at her home, taking a bottle of bourbon.  He said her children were there when he arrived and they all chatted and the children, who he’d met many times before, then went off to bed.  HLKD said that the victim had three daughters, not two as the Court referred to.

33. HLKD said he took two of the children with him in the car to a drive-in bottle shop during the evening and purchased more bourbon.  He said that the fact their mother let them go with him reflected that she trusted him.  The three then returned to the house.

34. After all the children retired, HLKD said that he continued sitting at the dining table, talking to the victim, but ‘I didn’t want to stay.  She’d been hitting on me all night.’  When asked what he meant by ‘hitting on me’, HLKD said ‘She’d been sexually forward.  I didn’t want to be there.  She talked about a number of sexual exploits, making advances.  I felt uncomfortable.’

35. He said he agreed he had drunk too much alcohol to drive, so the victim brought him some blankets and he went to sleep.  At about 2.30 or 3.00 am HLKD said he decided to leave, and was ‘going to drive around the corner and rest in my car for a while.’

36. In answer to questions from the Respondent, HLKD denied entering the victim’s bedroom uninvited.  He denied getting undressed.  He denied sitting on the victim.  He denied putting any part of his hand into her vagina, and said that the victim had changed her story three times in her testimony at the trial.

37. HLKD said he was aware that the Court of Appeal had considered the inconsistencies in the victim’s evidence and had found that she was consistent in her evidence about the the core elements of the offending.

38. In answer to the Tribunal, HLKD said he did not feel there was anything unsatisfactory about his trial but was shocked at the verdict.

39. The Tribunal explained to HLKD that it was not open, in a merits-review process, for an administrative decision-maker, including the Tribunal, to go behind the verdict of a Court.  HLKD said he understood that.  He said he ‘accepted’ the offending because the Court had ruled he was guilty.  He said he should never have placed himself in the situation of drinking with a female on her own without another female present.

40. When asked why he thought the victim might have made the complaint so many years later and gone through the ordeal of a trial, HLKD said that the victim ‘was stalking me.  She saw us in this film together, where there was an implied sexual thing going on, from camera angles, and where it looked like there was digital penetration, but it was camera angles..  She’d been on anti-psychotic drugs for years which may have blurred her – she may believe what she was saying.  It may be an act of jealousy.’

41. In terms of courses he had done in prison, HLKD said he did the one he was required to do as a convicted sex offender, saying he did a ‘12 week, low risk’ course.  He said it was an extensive programme dealing with what is considered consent and what is not considered consent.  He said he also did a first aid course, courses in fitness and health and occupational health and safety, and offered to do a drug and alcohol course.  He said he asked to do other courses, but no others were available.

42. The Respondent took HLKD to a report by Dr Karen Scally, forensic psychologist, who examined him on 26 February 2018 (G, p 84-93).  HLKD was asked whether he agreed with the following remark Dr Scally made (G, p 89):

    In both his affidavit and throughout interview [HLKD] demonstrated a tendency to engage in minimisation of his past offending behaviour.  He continues to maintain his innocence in respect to the rape conviction and has fallen short of accepting total responsibility for his actions with regards [sic] to other past convictions.

    He has communicated regret for some of his actions which led to charges being laid against him but denies any criminal intent with respect to the range of past offences.

    He has shown a tendency to blame others and provide excuses rather than admitting full responsibility for his actions.

    [HLKD] has expressed partial guilt for the theft by deception charges for which he was convicted but again qualified this admission of guilt by maintaining a lack of criminal intent in his actions.

43. HLKD said ‘if that is her view, I’m not going to disagree.  I agree regarding the rape, but I do accept total responsibility, but not to certain aspects.’  The Applicant said he agreed there was no criminal intent in regard to the significant theft charges for which he was convicted in 1996, because he did not intend to steal his clients’ money.

44. The Respondent asked HLKD whether he agreed with Dr Scally’s observation that he had shown a tendency to blame others and responded: ‘I have been guilty in the past of not fully appreciating other people’s perspectives.  I don’t agree with her conclusion in relation to my offending.  Some I wasn’t guilty of, even ones I accept total responsibility for, because I didn’t do it.’

45. When asked whether he accepted any aspect of the circumstances leading to the rape conviction, HLKD said ‘I accept that I shouldn’t have found myself in a bad situation.’

46. Dr Scally (G, p 89) wrote of HLKD: “He impressed at being of above average intelligence and highly articulate with apparent narcissistic traits.”  HLKD was asked whether he accepted that he has narcissistic traits and responded that he wasn’t really sure.  He said he has discussed this with a psychiatrist who told him there is a big difference between having narcissistic traits and being a narcissist because a narcissist has no empathy, and ‘I’m certainly not that.’

47. The Respondent asked whether HLKD agreed with the following observation of Dr Scally (G, p 92):

    [HLKD] expresses some remorse for his past offences but falls short of accepting full responsibility for his actions.  He espouses a prosocial attitude and denounces any criminal intention.  However, it is questionable whether he has truly changed in his attitude to committing unlawful acts given his unwillingness to provide a complete admission to his past offences.

    The Applicant said he did not agree with this conclusion.

48. The Tribunal had before it a psychiatric report of Dr Danny Sullivan, consultant psychiatrist, who examined the Applicant on 13 May 2016 at the request of Victoria Legal Aid, prior to HLKD’s appearance for sentencing on the rape conviction.

49. In 2016 Dr Sullivan wrote (FSG, p 549):

    [HLKD] appears to have prominent narcissistic personality traits, marked by grandiosity, arrogance and past exploitative behaviour in financial dealings. …

    There is no indication of cognitive impairment, current mood disorder or other mental disorder…. 

50. HLKD said he did not think he was informed enough to say whether he agreed with this conclusion of Dr Sullivan; he conceded that he had grandiose thinking on a certain level and had demonstrated arrogant behaviour in the past.  He agreed that he had no mental disorder.

51. Dr Sullivan wrote (FSG, p 550):

    Given that [the Applicant] has no history of prior sexual offending, denies the commission of the current offences for which he has been convicted, and has never before undertaken any offence-specific treatment, there is little current utility in risk assessment.  Taking the events as alleged, putative associations for such behaviour includes attitudes of entitlement, intoxication, and elevated sexual drive.

1. HLKD said he did not accept that he had an attitude of entitlement and considered that he had a healthy sex drive.  When asked whether he thought intoxication played a part in his offending he said ‘I don’t believe it did, because I didn’t do what they said I did.’

2. HLKD was asked whether he had made any arrangements to see a psychologist or psychiatrist if released from immigration detention, but he said he had not, because he didn’t know whether he would be remaining in Australia or returning to the United Kingdom.

   Evidence of TS

3. TS, a friend of the Applicant, gave evidence.  He said he could not accept that HLKD was capable of committing a rape because he had always been humble, if sometimes a bit overbearing.  TS said deportation would have a great effect on HLKD’s family.  He said that HLKD’s eldest daughter AL had been in contact with him by text message, seeking money and a place to live.  His view was that AL would end up on the street if her father was deported.  When asked directly whether he felt HLKD could help AL with her drug addiction, TS said ‘No’.

4. TS said that he thought HLKD had been ‘100 per cent a straight shooter’ in his business dealings.  He felt that if HLKD was returned to the UK, he would fall on his feet, but it would be to the detriment of his family.  TS said he had known the Applicant for 30 years and felt he would not be a risk to the community if allowed to stay in Australia.

   Evidence of RP

5. A friend of the Applicant, RP, gave evidence.  He said he had met the HLKD about 15 years ago and they had become good friends.  RP said he was aware of the rape trial but not aware of any other offending by HLKD.  RP said he had a business involvement with HLKD and felt he was an asset because he had a high IQ and many entrepreneurial skills.  RP said that deportation of HLKD would be detrimental, especially to the Applicant’s mother, who is in advanced years.

6. In terms of his views on the rape conviction, RP said in his view the matter should never have gone to Court.  He felt it was behaviour between two adults that should have ended when one said they did not want to continue.  He said in his view what took place was more a prelude to sexual intercourse, rather than rape.

   Evidence of AZ

7. AZ, HLKD’s mother, gave evidence that she had a very close relationship with her son.  She said she visited him in prison every time she had the opportunity to do so.  AZ said that her other son lives in Geelong and she needed HLKD to be out of detention and living with her to help her with various household chores that, owing to her advanced years, she could no longer do for herself.

8. AZ said that if HLKD was returned to the United Kingdom, she would be unable to visit him because of her age and would never see him again.  AZ gave evidence about her granddaughter, AL, and said she was a drug addict and needed the aid of her father because otherwise the outcome may be grave.  She felt that the Applicant definitely had the ability to bring AL back ‘around’.

   Evidence of AS

9. AS, HLKD’s sister, gave evidence.  She said she spoke to the Applicant almost daily.  AS said she was aware of the rape conviction but could not tell the Tribunal ‘verbatim’ about HLKD’s other offending history.

10. AS said that their mother would be greatly affected if the Applicant was repatriated, but there would also be a big effect on AL and her two youngest children, HLKD’s grandchildren.  AS said that HLKD is the ‘only one who can talk sense to AL and who might be able to get her off the drugs’.  AS said she had no knowledge of AL’s current whereabouts.

11. In terms of the unsigned statement before the Tribunal from AL, AS said she had been in touch with her in 2017 and she had agreed to its contents but when it came time for her to sign it, she had ceased contact, which she apparently periodically did.  AS surmised when she broke off all contact like this, it was owing to AL’s drug habit. 

12. AS said that HLKD’s younger daughter, AH, had indicated she would provide a statement in support of her father in these proceedings, but had reneged.  She said his younger son AD also had reneged, but then changed his mind again and sent the statement direct to HLKD’s lawyers, which is Exhibit A1.

13. In terms of caring for the Applicant’s mother, AS said AZ had stayed with her for significant periods as needed, and that she was the carer for her mother, receiving an allowance to recognise that fact from Centrelink.

    Evidence of PL

14. PL, who was the first wife of HLKD, gave evidence to the Tribunal.  She corroborated previous evidence given about the strained relationship that existed between members of the family and AL and about her drug addiction.

15. PL said that AL did listen to HLKD and that he had acted like a mentor father to her, when they had been able to be in contact.  PL gave particularly poignant evidence of the perilous nature of AL’s life and that she had three times been called to a local police station to identify a body, because police had thought it might have been AL.

    Evidence of AB

16. AB, the brother of the Applicant, gave evidence by telephone.  He said that he had always had a good relationship with HLKD, speaking to him about once a week.  He said that he did not think ‘there was any hope’ for AL and that his fear was that her two younger children, while currently in the care of their father, might eventually end up as wards of the state. AB said that he had some contact with AL who came to stay with him on his farm at one stage and who occasionally spoke to him on the phone.

17. AB said that he thought the rape charges against HLKD were completely out of character and he was taken aback when he learned of them, and when the Applicant was convicted.  He did not consider that HLKD would be a risk to the community if his visa was restored.

18. In terms of HLKD’s offending prior to the rape trial, AB said he was present in Court when his previous offences were referred to at the sentencing, but he was not aware of the exact details.  He said he knew that his brother maintained his innocence of the rape offence, but said he took responsibility for putting himself in the situation. 

19. When asked directly by the Tribunal, AB said it was fair to say that he believed the rape offence took place, saying ‘who am I to say that the jury was wrong?’  He said that his brother had said that it did not happen and that any interaction between him and the victim was agreeable.

    CONSIDERATION

20. The Tribunal must consider the matters decision-makers are to take into account in the Ministerial Direction made under s 499 of the Act, in particular the primary and other considerations set out in Part C.

    Protection of the Australian community (paragraph 13.1)

21. The Direction exhorts decision-makers to give consideration to the nature and seriousness of the Applicant’s conduct to date, and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

22. The Direction sets out that sexual crimes are viewed very seriously, and that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.  In terms of the rape conviction against HLKD, it is axiomatic that the very crime of rape is a violent crime, because it is a personally violating act.  In regard to the particular circumstances of the rape, the sentencing Judge took into account certain factors that weighed in relation to the offence HLKD committed.  The fact that there was no penile penetration and therefore no risk of sexually-transmitted disease was taken into account by the Judge in measuring the sentence tariff.  On the other hand, the fact that the victim was asleep when the act commenced and felt constrained in her attempts to stop the assault, lest she awaken her sleeping children in adjacent rooms, was also a factor taken into account.

23. The Direction also requires the Tribunal to consider the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness, and the cumulative effect of repeated offending.  In this respect, the Tribunal has divided the majority of HLKD’s offences into three broad categories.  It may be concluded that some of the assault offences, prior to the rape, were each of themselves less serious in nature.  There was however a relatively consistent pattern of dishonesty offences with an increasing level of seriousness.  The lifetime ban imposed on HLKD by ASIC is also a relevant factor to take into account, in terms of other serious conduct.

24. It would seem to the Tribunal that many of the responses given at the hearing by HLKD when he was taken through his offending history prior to the rape conviction were characterised by downplaying the particular circumstances and laying blame at the feet of others, including former clients and colleagues in the financial services sector.  Two particular examples are illustrative of this approach.  HLKD told the Tribunal that he had bought two camcorders and tried to return one because his friend, who he said had asked him to obtain the item, had got one elsewhere.  This explanation is at odds with the police report of the circumstances of the offending which related to presentation of dishonoured cheques and visiting a number of branches of a major department store to return an item, in a clear attempt to obtain a financial gain. 

25. The Tribunal prefers the evidence provided under summons in the police report to the somewhat selective recollection of HLKD of the circumstances that led to the charges being laid and his conviction.

26. Similarly, HLKD’s explanation relating to the 2004 convictions for obtaining money by deception offences, namely that he had left some signed but blank cheques in a safe and was overseas when they were presented, is also not supported by the contents of the police report.  The report states that HLKD was presenting bad cheques over an extended period.  It is suggested in the police report extract (reproduced above) that at least one other bank, other than the ANZ, may have been building a case against him for similar conduct.  There is no corroborative evidence about the other bank, only that this is apparently what the ANZ officer told the police, which cannot be given any significant weight. However, on the other salient points, on balance the Tribunal prefers the contents of the contemporaneous police report provided under summons as a more comprehensive  account of the basis of the charges laid against HLKD which led to his conviction, and is not persuaded by the less complete explanation of the events given by HLKD to the Tribunal in relation to this incident.

27. These are two examples of where I conclude that HLKD gave partial evidence to the Tribunal to put the best complexion he could on particular proven offences, even though he would have been aware that contradictory contemporaneous evidential material had been provided under summons and was before the Tribunal.

28. It was particularly stark to the Tribunal that HLKD seemed undaunted by the lifetime ban imposed on him by ASIC.   After the ban, he continued in the broader financial services sector, and continued to commit offences of dishonesty.  He made clear in his response to the Respondent’s questioning that he refrained from doing what he was no longer allowed to do, because of the ban.  While accepting this may have been the case and that he no longer worked in areas of the sector which the ban encompassed, he did continue to commit a series of offences of dishonesty, sometimes relating to clients who were paying him for his services.  Even where HLKD had pleaded guilty and it was explained to him by the Tribunal that this means he had accepted all the elements of the offence (see Maxwell v The Queen [1995] HCA 46; 184 CLR 501), HLKD said he had not realised that this was the case, and said sometimes he pleaded guilty because he had been guilty of ‘some of the acts’ or because he would get a discount for a guilty plea.

29. The Tribunal is satisfied from the papers before it that HLKD was well behaved during his time in prison.  He told the Tribunal that he was assessed for parole and that officers visited his mother’s home in preparation for a grant of parole but that he later received a letter advising that, as his visa had been cancelled, the Parole Board would not grant parole.  The Tribunal noted that it is aware that it is the policy of the Parole Board in Victoria not to grant parole to non-citizen prisoners whose visas have been cancelled. This policy is on the basis that such a person may be transferred out of the State on release by the Department and the Board would thus lose the ability to regulate the parole, which is its statutory task.  The Tribunal accepts that, given his good conduct in prison, it would be likely that HLKD would have been granted parole at the conclusion of the non-parole period set by the sentencing Judge, but for the cancellation of his visa.

30. During the hearing, the Tribunal explained to the Applicant that an assessment of his risk of re-offending entailed the Tribunal measuring the risk of him re-offending in any manner, not limited to sexual offending, and HLKD said he understood this.

31. In terms of the risk of HLKD re-offending in committing a serious crime of a sexual nature, the Tribunal is not convinced that such a risk is high.  There was no history of such offending before 2008, or in the relatively long period after the rape incident and the trial and conviction.  However, what I can only describe as an obstinate refusal to accept the verdict of the jury, as confirmed by the Court of Appeal, contributes to my finding that there is some risk, and it is a real risk, that such a crime may again be committed by HLKD.  When given the opportunity, there was no evidence from his very general answers in response to specific questions that he had learnt anything about the importance of establishing consent in sexual encounters, in spite of saying he had undertaken the course for sex offenders in prison.

32. In terms of crimes of dishonesty, the Tribunal assesses the risk of HLKD re-offending as relatively high.  His attitude of downplaying almost all of the offending of which he has been convicted was a consistent characteristic in his extensive written submissions.  The conclusions of Dr Sullivan in 2016 and Dr Scally in 2018, extracts of which are set out above, also separately proffer a relevantly similar clinical opinion, which was borne out to the Tribunal by the nature of much of HLKD’s testimony in this hearing.  This professional opinion, by two relevantly qualified medical professionals over a two year period contributes to my finding that I am not satisfied, as the Applicant contends, that there is a low risk of HLKD re-offending.  In addition, any expressions of remorse he did make in the course of his evidence were essentially self-serving and more in the nature of regretting he had been caught out, not that he had done wrong.

33. In terms of the rape conviction, this was not a case where an Applicant sought to present matters which may surround the circumstances of a conviction in order to provide some added context, which he may do provided none of those submissions have the effect of contradicting the findings of the Court (see Davies J, then President of the Tribunal, in Re: Du Pont and Minister for Immigration and Ethnic Affairs (1983) 5 ALN N143).  On the contrary, in his written and oral evidence, HLKD resolutely denied all of the core elements of the rape conviction, which founded the jury’s verdict and the subsequent sentencing, noting that the core elements founding the offence were upheld on appeal by the Court of Appeal.

34. In Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234, the Full Court of the Federal Court of Australia (Branson, Lindgren and Emmett JJ) held, at [45]-[46]:

    To impugn the sentencing process in that way is bad as a matter of public policy. It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence. The policy must be that a conviction, and a sentence imposed as a result of a conviction, are matters for the criminal law and its procedures. If a sentence, like a conviction, is otherwise than in accordance with law, a right of appeal is available to remedy any miscarriage of justice. If new or fresh evidence comes to hand, again criminal procedures can be availed of.

    While it stands, the conviction and sentence must be conclusive, so far at least as concerns a tribunal reviewing a decision that takes the conviction and sentence as its starting point. Serious practical questions would arise if the position were otherwise. The Tribunal could arrive at its own decision as to whether the person concerned did what he was charged with doing, and, for that matter, what sentence his offence merited. It would be doing so on material gathered and considered at what could be a long time after the trial. Accepted trial procedures would be absent. The Crown would not be a party: cf Minister for Immigration and Ethnic Affairs v Gungor, above, at 445-446 per Fox J.

35. The complete lack of HLKD’s acceptance of the serious sexual offending and the less than complete acceptance of many of his convictions for crimes of dishonesty together unite to satisfy the Tribunal that this primary consideration weighs against the revocation of the mandatory cancellation of the visa.  To borrow the wording in the Direction, I find that there is a real likelihood of him engaging in further criminal or other serious conduct.

    Best interests of minor children in Australia affected by the decision (paragraph 13.2)

36. The relevant children in this category are HLKD’s four grandchildren, the four younger children of AL.  HLKD’s other children, and his oldest grandchild, are all adults.  The Direction requires a decision-maker to give individual consideration to the best interests of children to the extent that those interests may differ.  In terms of the two older minor grandchildren, sons of AL, they live with their father and his new partner in Queensland.  HLKD said he had some contact with them by telephone and in terms of sending Christmas and birthday gifts but the evidence was that their home life was stable and that HLKD did not play a parental role in their lives.

37. In terms of AL’s two younger children, they are in the care of their father, who the Tribunal was told has been awarded custody.  It would appear on the evidence that AL, the Applicant’s daughter and their mother, does not currently play a major role in their lives.  HLKD gave evidence that the younger children’s father also has a drug addiction, however in her evidence PL said that their father is currently subject to random drug tests and the result of these could affect his retention of custody of his children.

38. The Tribunal did not have specific evidence of the view of the younger two children.  There was a written statement prepared apparently in 2017 either by or on behalf of AL (it was not clear).  That statement relevantly stated: ‘Sending my dad to England would destroy a huge part of my life and my children’s lives.’  Later, the statement says: ‘Sending my father to England would permanently affect many lives of those who love and respect him.  In particular it may destroy my life and seriously affect the lives of my children.’

39. The Applicant’s sister said in her evidence that AL did not sign-off on the final statement.  While the Tribunal can broadly accept that this statement may have reflected the views of AL in 2017, it is clear from HLKD’s evidence that the Applicant did not have close involvement in the lives of his two younger minor grandchildren before his incarceration.  In addition, given the ages of these two grandchildren, their opportunity for interaction with HLKD before his incarceration has been very limited.  HLKD was incarcerated in the middle of 2016 when the two youngest were, respectively, two and a half years old, and eighteen months old, and on his evidence he has not seen them since 2016.  In terms of the Direction, there has been limited meaningful conduct.  There is also another person who plays a parental role in relation to all four of the minor grandchildren, the father and new partner of the older two grandchildren, and the father of the two younger grandchildren.

1. There was mixed evidence about what HLKD actually could do to assist his daughter, accepting that he has a genuine desire to help her as he could, and about what arrangements may possibly be put in place in terms of care for the two youngest grandchildren, whose principal carer is their own father, not the Applicant.

2. The Tribunal concludes, on this evidence, that this primary consideration weighs slightly in favour of revoking the mandatory cancellation of the visa, but given the lack of contact with the minor grandchildren, not heavily so.

   Expectations of the Australian community (paragraph 13.3)

3. In the recent Full Federal Court decision, FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR), Charlesworth J at [69-73], stated:

   The clause expresses two expectations, the first concerning norms of conduct to be expected of non-citizens, as expressed in the opening sentence:

   The Australian community expects non-citizens to obey Australian laws while in Australia.

   This statement is a reflection of the rule of law as it applies to citizens and non-citizens alike. It is an expectation that will not have been met in respect of a visa applicant who cannot pass the character test in s 501(6) of the Act and so must, of its nature, weigh against the refusal of a visa in all cases to which the Direction applies.

   The second expectation is more difficult to interpret.  It expressed in the second and third sentences of the clause as follows:

   Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or whether the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person.  Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa.

   This part of the clause is concerned with the consequences that should befall a non-citizen who has fallen foul of the first expectation. It should be understood as expressing an expectation about the outcome of the exercise of the power conferred by s 501(1) of the Act in respect of the particular person whose circumstances are under consideration.

   Before proceeding further it must be emphasised that cl. 11.3 does not purport to preclude the decision-maker from reaching his or her own view as to whether the non-citizen should or should not be granted a visa, as the decision-maker should necessarily do.  The question that arises on this appeal is not whether the decision-maker’s own assessment of the appropriate outcome is relevant to the task of identifying the content of the expectations of the Australian community under cl 11.3 of the Direction.  The clause implicitly recognises that the decision-maker’s assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.

   FYBR related to a different part of the predecessor to the current Direction, but the wording of the primary consideration in the instrument is relevantly the same.

4. The Tribunal finds that the expectations of the Australian community, as stipulated, would be that HLKD’s visa would not be restored because of the serious nature of the rape offence which he continues to deny against the verdict of the Court and because of his cavilling and, in some cases, denial of several other offences, including some where he had entered a guilty plea.  From Charlesworth J’s remarks in FYBR (see especially [75]-[79]) it is clear that the Federal Court is of the view that a decision-maker may not depart from what the normative expectations of the Australian community, as deemed by the government, may be, but may nonetheless make a different assessment based on particular factors, on whether (in this case) the mandatory cancellation of the visa should be revoked.

5. However it is my finding in this case that there would be no distinction in those expectations.  The Australian community would expect a person who does not fully accept the outcomes of the criminal justice system in relation to a serious sexual offence, and who has a long pattern of offending would lose his or her right to have a visa, and I find this primary consideration strongly weighs against revoking the mandatory cancellation of the visa.

   Other consideration – international non-refoulement obligations (paragraph 14.1)

6. This consideration provides that a decision-maker must take account of Australia’s international treaty obligations not to return a non-citizen to a country where he or she may be at risk of a specific type of harm.  There was no evidence advanced by parties that this would be the case with HLKD if he is repatriated to the United Kingdom.  The Tribunal finds that this consideration is not engaged.

   Other consideration – strength, nature and duration of ties to Australia (paragraph 14.2)

7. The Direction requires decision-makers to have regard to the length of time a non-citizen has resided in Australia, including whether they had arrived as a young child.  It was clear on the evidence that HLKD arrived in this country aged 4 and has been educated and lived here consistently, except for short holidays away, for the vast majority of his life.  His two siblings live here and his mother lives here.  His adult children live here, as do his grandchildren.  There was evidence that HLKD has adult nieces and nephews in Australia. There was evidence from, and in respect of, a number of the Applicant’s friends in Australia. The evidence was that all of these people are Australian citizens.

8. The Tribunal particularly notes the heartrending evidence given by HLKD’s aged mother, AZ.  It was not contested by the Respondent, and rightly so, that AZ is now too frail to undertake overseas travel and that she would therefore be unable to see her son in person should his visa not be restored and he be repatriated to the United Kingdom.  The last time AZ visited the UK herself was around 20 years ago, HLKD said.

9. Notwithstanding the pattern of dishonesty offences, the Tribunal finds that HLKD has made some positive contribution to the Australian community in his work, although those offences mitigate the weight that should be ascribed to that contribution.

10. The Tribunal was not convinced on the evidence that HLKD now has a close relationship with any of his children, even accepting, on its face, the remark in AD’s written statement (Exhibit A1) that the deportation of his father would:

    “remove the possibility of any reconciliation or catharsis between myself and him, as our relationship has been damaged since I left home.  It will also not allow my younger sister [AH], who I am close with, to reconcile the relationship with him at some point.”

11. On HLKD’s own evidence, AD did not want his father to know where he is living, and AH did not provide a statement in support of her father’s hearing before the Tribunal.  Nor did his older son, AA.

12. The Tribunal also is satisfied that while HLKD has good intentions in regard to assisting his daughter AL and perhaps her younger two children, that sadly must be seen as a  somewhat aspirational goal.  It may be a worthy goal, but several witnesses were of the view that it would either not be achievable to provide real assistance, or would be unlikely, given AL’s dire circumstances. 

13. The Tribunal does not ascribe significant weight to AL’s 2017 written statement, which on the evidence was not signed and where there is no evidence she approved its final content.  Some of the sentiments expressed in that written statement are also at odds with the evidence the Tribunal heard from HLKD and other witnesses, especially PL, about AL’s own involvement with her minor children.

14. The Tribunal is satisfied that, balancing all the evidence, this consideration weighs slightly in favour of revoking the mandatory cancellation of HLKD’s visa, principally because of the evidence of AZ.

    Other consideration – impact on Australian business interests (paragraph 14.3)

15. The Direction exhorts the Tribunal to consider the impact on Australia’s business interests if a non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project or important service in Australia.

16. Several of the witnesses giving character evidence in support of HLKD spoke about his involvement in business in his working career and TS and RP both gave specific evidence about his assistance to them in specific business ventures.  There is some evidence that, putting to one side HLKD’s many dishonesty offences, he has been sporadically successful in business in several spheres over his adult working life.  However, there were no submissions from parties that cancellation of the visa would have a deleterious effect on a major project or important service in Australia, and there was no evidence suggesting as much. The Tribunal finds that this consideration weighs neutrally.

    Other consideration – impact on victims (paragraph 14.4)

17. This consideration in the Direction comes into play where there is evidence before the Tribunal that the victim or victims of a non-citizen’s offending is aware of the visa cancellation process and has expressed a view.  There was no such evidence before me, so I find that this consideration is not engaged.

    Other consideration – extent of impediments if removed (paragraph 14.5)

18. The Direction draws the Tribunal to consider the extent of any impediments that the Applicant may face if removed from Australia to the United Kingdom in establishing himself and maintaining basic living standards, in the context of what is generally available to other citizens of that country.  The Direction requires the Tribunal to take into account HLKD’s age and health, any language or cultural barriers and any social, medical and/or economic support available to him in the UK.

19. HLKD gave evidence that he thought he would be able to find work in the UK, if repatriated.  He speculated that he could initially work as a security guard (an area in which he has worked extensively before), before finding other work.  He gave evidence that he was in good health, apart from a minor back problem for which he takes analgesics. The Tribunal notes that as a British citizen he would have the same access as other citizens to any essential medication through that country’s universal health service. 

20. The Tribunal notes that, although in good health, HLKD is now aged 60 and this may have some impact on his employability, but also that, in the interim, he would be eligible for social security available for those seeking employment.  Several witnesses who had observed HLKD in his working life were of the view that he would ‘fall on his feet’ because he had shown versatility before and had consistently been in work.  There was no evidence put before the Tribunal of any language or cultural barriers.

21. The Tribunal finds that this other consideration weighs very lightly in favour of revoking the mandatory cancellation of the Applicant’s visa because, in spite of his optimism about finding employment easily if repatriated, his age may have some effect.

    Conclusion

22. In terms of the Direction, two of the primary considerations weigh against restoring HLKD’s visa.  One weighs slightly in favour of revoking the mandatory cancellation decision, and thus restoring the visa.  In terms of the other considerations, two weigh slightly in favour of restoring the visa; the remainder weigh either neutrally or are not engaged. 

23. However, in this exercise the Tribunal is not engaged in a mathematical exercise and is not confined to consider only those matters referred to in the Direction in adjudging whether there is another reason why the mandatory cancellation should be revoked.  As the Direction allows, any of the stipulated considerations may weigh in such a manner as to be determinative.

24. The Tribunal couples HLKD’s continuing resolute denial at this hearing of the serious offence which precipitated the cancellation of his visa, after several years of being able to reflect on his sentence, with his denial of many aspects of his other offending in coming to the finding that the risk of the Applicant re-offending is not remote or fanciful.  The Tribunal’s findings on the seriousness of the offending and the assessment of risk of re-offending outweigh the Tribunal’s conclusions on the best interests of minor children affected by the decision and the strength, nature and duration of the Applicant’s ties with Australia and the extent of impediments if he is removed. 

25. The consequences of the Tribunal’s findings is that the decision not to revoke the mandatory cancellation of HLKD’s visa was the correct decision in law and the preferable decision where a discretionary power, as in this case, exists.

    DECISION

26. The Tribunal decides to affirm the decision under review.

I ceII certify that the preceding 144 (one hundred and forty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

………[sgd]……………….
Associate

Dated: 12 November 2019

Dates of hearing:

31 October & 1 November 2019

Advocates for the Applicant:

Mr Malintha De Mel

Solicitors for the Applicant:

Advocate for the Respondent:

De Mel Lawyers

Ms Melinda Jackson

Solicitors for the Respondent:

Australian Government Solicitor