Hodgson and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 2608
•23 July 2024
Hodgson and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 2608 (23 July 2024)
Division:GENERAL DIVISION
File Number(s): 2024/2794
Re:Philip Hodgson
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:R Cameron, Senior Member
Date:23 July 2024
Place:Melbourne
The Tribunal affirms the reviewable decision
...................................[sgd].....................................
R Cameron, Senior Member.
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – direction 110 –– whether there is ‘another reason’ to revoke mandatory cancellation decision under s 501CA(4) of the Migration Act 1958 – crimes of a sexual nature – crimes against children - family violence – primary considerations and expectations of the Australian Community – decision affirmed.
Legislation
Migration Act 1958 (Cth)
Sentencing Act 1991 (Vic)
Sex Offenders Registration Act2004 (Vic)
Notice of Reporting Obligations Pursuant to the Sex Offenders Registration Act 2004 (Vic)
Crimes Act1958 (Vic)
Crimes (Amendment) Act 2000
Cases
DTR21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1237 FYBR v Minister for Home Affairs (2019) 272 FCR 454
Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No. 110 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
R Cameron, Senior Member
INTRODUCTION
The applicant seeks a review of a decision made on 30 April 2024 by a delegate of the respondent which determined that there was not another reason to revoke the mandatory cancellation of the applicant’s Class BF Transitional (Permanent) visa (‘the visa’) pursuant to s 501CA of the Migration Act 1958 (Cth) (‘the Act’) (‘the reviewable decision’).
The applicant is a citizen of the United Kingdom having been born in August 1956. He arrived in Australia as a 10-year-old in March 1967. Since his arrival he has not left Australia.
THE EVIDENCE BEFORE THE TRIBUNAL
There was both documentary and oral evidence before the Tribunal.
The following witnesses gave oral evidence:
The applicant;
His daughter in-law’s mother;
His daughter;
His grandson;
His granddaughter;
His sister;
His son (‘son one’);
His second son ('son two’);
His former wife;
His second oldest brother (‘brother two'); and
His daughter in-law.[1]
[1] Statements from each of these witnesses were lodged with the Tribunal.
In addition to witness statements from each of the above witnesses there were tendered in evidence the G documents.
THE RELEVENT SECTIONS OF THE MIGRATION ACT
Section 501(3A) of the Act, specifies that the Minister (or their delegate) 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:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); 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 prescribed by s 501(3A)(a) is set out in s 501(6) of the Act. Section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by s 501(7) of the Act). For the purposes of s 501(6)(a) of the Act, 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] Migration Act 1958 (Cth), s 501(7)(c).
Where a visa has been cancelled, as set out above, the Minister has a power under s 501CA(4)(b) of the Act to revoke the cancellation decision if satisfied, after the person has made representations to them, that the visa holder passes the character test, or that there is ‘another reason’ why the original decision should be revoked.
Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must, under section 499(2A) of the Act, comply with a relevant direction. Currently, the applicable direction that the Tribunal as decision-maker must apply, made by the Minister on 7 June 2024, is Direction No. 110 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘Direction 110’).[3]
[3] Direction 110 commenced on 21 June 2024.
ISSUES BEFORE THE TRIBUNAL
There is sufficient evidence before the Tribunal to demonstrate that the applicant has made representations to the respondent in compliance with s 501CA(4)(a) of the Act.[4]
[4] See, G2 Attachments C to G and I to Y for details of the representations made by the applicant to the respondent which were considered by the delegate of the respondent in making the reviewable decision.
Therefore, two issues remain for determination by the Tribunal as follows:
(a)whether the applicant passes the character test; and
(b)if he does not, whether there is another reason why the decision to cancel the visa should be revoked.
THE CHARACTER TEST
The applicant does not pass the character test. He does not do so, by operation of s 501(6)(a) and s 501(7)(c) of the Act, as he has a substantial criminal record, having been sentenced to a term of imprisonment of 12 months or more in the County Court of Victoria on 13 August 2021.[5] The applicant was sentenced to a total effective term of 4 years and 10 months imprisonment, with a non-parole period of 2 years and 10 months.
[5] In a written submission prepared on his behalf and on his instructions by Clothier Anderson, Immigration Lawyers and dated 4 March 2024, (page 5 of the submission), the applicant conceded that given the length of his custodial sentence, he cannot pass the character test as defined by s 501 of the Act.
AN INTRODUCTION TO DIRECTION 110
There has been much attention paid to Direction 110 during its short existence. At the outset reference should be made to several of its introductory provisions which guide decision-makers when applying Direction 110, such as the Tribunal. This overview is of course in no way exhaustive, and no substitute for careful consideration and application of each of its provisions. Several of those provisions warrant mention at this stage of the process.
Paragraph 4 “Interpretation” provides a definition of several expressions or terms that are referred to in the “primary” and “other” considerations that the Tribunal is obliged to apply.
“Family Violence” is in paragraph 4 expressed to mean violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful. Examples of behaviour that may constitute family violence include, an assault, a sexual assault or other sexually abusive behaviour.
Paragraph 5.2 “Principles” provide the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under s 501CA of the Act. These Principles include the following:
(a)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to remain in Australia. Being able to 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.
(b)The safety of the Australian community is the highest priority of the Australian Government.
(c)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to forfeit the privilege of staying in, Australia.
(d)The Australian community expects that the Australian Government can and should cancel non-citizens visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(e)With respect to decisions to refuse, cancel, and revoke cancellation of a Visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(f)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 revoking a mandatory cancellation.
(g)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 “Making a decision” provides that informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 7 “Taking the relevant considerations into account” provides that:
(a)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(b)The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(c)One or more primary considerations may outweigh other primary considerations.
Paragraph 8 “Primary considerations”, provides that in making a decision under, amongst others, 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 strengths, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia;
(e)expectations of the Australian community.
Paragraph 9 “Other considerations”, provides that in making a decision under, amongst others, s 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on Australian business interests.
THE APPLICANT’S OFFENDING
The applicant, unlike many who appear before this Tribunal, has a fairly limited criminal history. Details of that history are contained in the National Coordinated Criminal History Check that was in evidence.[6]
[6] G2, Attachment A, 34-5.
On 10 April 1975, in the Deniliquin Court of Petty Sessions, the applicant was convicted of stealing and fined $150. Details of that offence, which in the scheme of things is comparatively trivial, are only contained in the National Coordinated Criminal History Check. Nothing more will be said about it in these reasons.
On 13 August 2021, the applicant was convicted, after entering a guilty plea,[7] of the following offences:
(a)Sexual penetration of a child under 16 years; a term of 4 years imprisonment was imposed;
(b)Committing an indecent act with a child under 16 years; a term of 14 months imprisonment was imposed with that term to be served concurrently;
(c)Committing an indecent act with a child under 16 years; a term of 12 months imprisonment was imposed, with 8 months to be served concurrently;
(d)Committing an indecent act with a child under 16 years; a term of 9 months imprisonment imposed, with 7 months to be served concurrently.
[7] The applicant pleaded guilty to these charges prior to his plea and sentence, at a special hearing held in April 2021.
The applicant was sentenced as a ‘serious sexual offender’ by way of charge 3 (one charge of sexual penetration of a Child under 16)[8] and charges 1, 2 and 4 (committing an indecent act with a child under the age of 16).[9] The total effective sentence imposed on him was 4 years and 10 months imprisonment. A non-parole period was fixed of 2 years and 10 months prison.
[8] It should be observed that charge 3 was a “rolled up” charge comprising 2 instances of sexual penetration on separate occasions. It is a common practice adopted in prosecutions of a variety of offences.
[9] This is because s 6B(2)(a) of the Victorian Sentencing Act 1991 (Vic) provides that a "serious sexual offender" means an offender who has been convicted of 2 or more "sexual offences" for each of which he has been sentenced to a term of imprisonment. Charges 3 and 4 for which the applicant was convicted are "sexual offences" for the purposes of this section.
The circumstances of the applicant’s offending for which he was sentenced in the County Court of Victoria at Melbourne on 13 August 2021 are to be found in the ‘Reasons for Sentence’ of the sentencing Judge.[10] The essential facts taken from the Reasons for Sentence will be briefly outlined below.
[10] G2, Attachment B, 36 – 47.
The offences took place over a reasonably lengthy time span from 1 January 2007 to 26 December 2010. The victims were two nieces of the applicant’s wife from whom he is now separated with. They lived at all relevant times with their mother who was the sister of the applicant’s separated wife.
The first victim was between 7 and 9 years of age when the offences occurred having been born in August 2000. The second victim was between 5 and 7 years of age when the offences against her took place having been born in August 2002. The victims of course were sisters.
Apparently, there was regular contact between the victims, their mother and the applicant and his wife as they were growing up. There were regular family gatherings that they attended when the applicant was present. Additionally, the victims visited the applicant’s home from time to time when their mother was at work or away from home. These visits to the home of the applicant and his wife, it would appear, were a regular occurrence.
When the applicant committed the offences, he was aged between 50 and 54.
When the first victim visited the house then occupied by the applicant and his wife, from time to time she used the computer room in that house to study. The applicant would call her to the room and have her sit on his lap.
Once, on one occasion between 1 January 2007 and 24 August 2009, when sitting at the computer desk in the computer room on the applicant’s lap he moved his hand down her skirt and rubbed his fingers along her vagina over the top of and underneath her underpants. These events occurred between 1 January 2007 and 24 August 2009. The victim was approximately seven or eight years old at that time. These facts were the elements of the first charge being the commission of an indecent act with a child under 16 years.
The second charge also being the commission of an indecent act with a child under 16 years occurred at a later time between approximately 1 January 2008 and 26 December 2010. The applicant attended a family gathering at the victim’s home.
The victim was in a double bed in a bedroom with her sister. She was wearing pyjama pants with an elastic waistband and no underwear.
Whilst both girls were still awake the applicant entered the bedroom. He invited them to select some lottery numbers for him. As they were selecting such numbers the applicant knelt down beside the bed. Upon doing so he moved his hand under the bed covers, down the front of the victim’s pyjama pants and began to rub the outside of her vagina. This act continued for approximately five minutes until the requisite lottery numbers had been selected. The applicant then said to them ‘good night’[11] and then left the room. At the time of this offending the victim was approximately 8 or 9 years old.
[11] Ibid, 38 [12].
Later, following the events that took place in the bedroom the victim and the applicant were eating lunch in a local park. They had a conversation. During this conversation the applicant told the victim that what he had done to her in the bedroom was, ‘our little secret’.[12]
[12] Ibid.
With respect to the offences committed against the second victim she visited the applicant’s home on an occasion between 1 January 2008 and 26 December 2009 at a family gathering.
On the premises, there was a shed adjacent to the residence which the applicant used for the purposes of storing motor vehicles that he worked on from time to time. In this shed the applicant kept a selection of car related magazines on or near a bench situated inside it. In front of the bench was a stool to sit on.
The applicant informed the victim and her mother that he was taking the victim out to this shed for the purposes of looking at the cars present therein, and to look at the magazines. The applicant took the victim to the shed. Upon entering the shed he closed the door, sat on the stool and had the victim sit on his lap. The victim was at that time wearing leggings and underwear.
The victim proceeded to start looking at the magazines that were present. When she did so the applicant proceeded to fondle her buttocks over the top of her clothing, squeezing and pinching them. The applicant then placed his hand beneath her underwear and inserted a finger into her vagina. The sexual penetration was described as consisting of the introduction of his finger into the victim’s vagina ‘to a relatively minor extent’.[13] At this time the victim was approximately 5 or 6 years old.
[13] Ibid, 39 [16].
Further offending against the second victim took place on Boxing Day when she was present at a family gathering at the applicant’s home. The applicant told her that he was taking her to the shed to show her a car that he had been working on. He escorted her to the shed and closed the door behind them.
After entering the shed and closing the door behind them the applicant sat on the stool near the bench and sat the second victim on his lap. He then proceeded to show her some magazines. Whilst doing so he fondled her buttocks. Then he put his hand into her underwear and inserted at least one finger into her vagina. The sexual penetration consisted of the introduction of at least one of his fingers into the victim’s vagina ‘to a relatively minor extent’.[14] The second victim was between 6 and 7 years of age when this occurred. These facts comprised the elements of charge 3 being the sexual penetration of a child under 16.
[14] Ibid [18].
The facts giving rise to charge 4 occurred later that same summer. The applicant was visiting Ulupna Island which is near Strathmerton in northern Victoria. He was swimming with the second victim and the rest of her family. The applicant invited her to travel home with him in his car. After the commencement of the journey, he gave her lollies from a packet. After giving the second victim the lollies, he leaned over towards her whilst he was driving and proceeded to rub her vagina with his fingers, over the top of her clothing. These facts comprised the elements of charge 4, being the commission of an indecent act with a child under 16.
The victim’s mother, who is the sister of the applicant’s wife quite some years after the offending informed her sister about what he had done to her daughters. Following that confrontation, a formal complaint was made to Victoria police in late July 2016. The police obtained recorded video statements from each of the victims on or about August 2016. Subsequently, in March 2017 the applicant was arrested after he reported voluntarily to a police station at the request of police. He was formally interviewed by the investigating detectives and gave a ‘no comment’[15] response to each of the questions put to him in that interview.
[15] Ibid 40 [20].
There were considerable delays in the progress of the prosecution of the applicant. There were the long delays between the complaint being made and the applicant’s arrest some 7 months. Then after his arrest in March of 2017 a committal hearing was not held until June 2018. A trial was fixed in the County Court of Victoria which was not reached on two occasions in 2019. Subsequently, due to Covid-19 restrictions a scheduled trial date in 2020 was postponed. The plea and sentence did not occur until 2021. It was a very long time for the applicant to have these matters hanging in a state of suspense. The effect of such delays on an accused cannot be underestimated.
PARAGRAPH 8.1 OF DIRECTION 110 – PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1(1) of Direction 110 provides that when considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principal that entering or remaining in Australia is a privilege that 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.
Paragraph 8.1(2) of Direction 110 provides that decision-makers should also give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 8.1.1 of Direction 110 – The nature and seriousness of the applicant’s conduct
Paragraph 8.1.1(1) of Direction 110 mandates that in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to several factors, amongst others, including the following:
(a)without limiting the range of conduct that may be considered very serious, amongst other things, the types of crimes or conduct viewed very seriously by the Australian Government and the Australian community include:
(i)violent and/or sexual crimes;
(ii)crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed; and
(iii)acts of family violence, regardless of whether there is a conviction for an offence or sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(ii) … crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(c)with the exception of crimes or conduct mentioned in subparagraph (a) (ii), (a) (iii) or (b) (i) the sentence imposed by the courts for a crime or crimes;
(d)the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose Visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their isa, has been afforded procedural fairness;
(e)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness.
(f)the cumulative effect of repeated offending.
In applying this primary consideration there are several relevant matters to take into account.
As is apparent from the applicable fact situation with respect to the applicant’s offending outlined above, being committed against children being his nieces, who were family members under the age of 16, such offending being a sexual assault falls within the definition of ’Family violence’ referred to in paragraph 4 of Direction 110.
Guided by the language contained in paragraph 8.1.1(1) of Direction 110 the applicant’s offending, which are clearly sexual crimes, crimes of a sexual nature against children and acts of family violence are the types of crimes which are viewed very seriously by the Australian Government and the Australian community.
Additionally, as has already been noted earlier in these reasons the applicant was sentenced in the County Court of Victoria as a ‘serious sexual offender’. It should be repeated, that the applicant was sentenced as a ‘serious sexual offender’ because of the operation of s 6B(2)(a) of the Sentencing Act 1991 (Vic). One should observe that this section, which classifies a person as a ‘serious sexual offender’ when they are convicted of 2 or more ‘sexual offences’ to which they have been sentenced to a term of imprisonment reflects the intention of the Victorian Parliament that such offending is understandably viewed as very serious offending. There are similar sentencing provisions in other Australian states and territories.
Further, because the applicant was sentenced for one Class 1 offence (Charge 3) and three Class 2 offences (Charges 1, 2 and 4) the applicant by operation of s 6 of the Sex Offenders Registration Act2004 (Vic) became a ‘registrable offender’ under the provisions of such act.[16] By reason of his registration pursuant to those provisions of the Sex Offenders Registration Act2004 (Vic), he is obliged to comply with the reporting obligations contained in Part 3 of that act for life.[17] These provisions reflect the fact that the respective legislatures have no tolerance for, and regard extremely seriously, sexual offending, let alone sexual offending against young and vulnerable children, as was the case with respect to the applicant’s offending.
[16] See, Sex Offenders Registration Act2004 (Vic), s 3 for definitions of Class 1 and Class 2 offences.
[17] G2, Attachment H, 124-9. This is a copy of a ‘Notice of Reporting Obligations Pursuant to the Sex Offenders Registration Act 2004’ signed by the sentencing judge. The document comprises 6 pages and contains a significant number of obligations cast upon the applicant that he is required to report to the Victoria Police.
In terms of considering the nature and seriousness of the applicant’s offending, it is also instructive to refer to some of the observations made by the sentencing judge in the County Court of Victoria. The sentencing judge in a section entitled, ‘Gravity of offending and impact on the victims’, specifically addresses the nature and seriousness of the applicant’s offending. The Tribunal considers that those comments accurately summarise the seriousness of his offending in the context of this primary consideration. The judge stated that sexual offending against children is inherently serious. She also pointed out that the offence of sexual penetration of a child under 16, where the child was under 10 years of age, is ‘especially serious’ as gauged by the maximum penalty of 25 years imprisonment fixed by Parliament.[18] The Tribunal completely agrees with these observations.
[18] See, G2, Attachment B, 40 [22], where reference was made to the Victorian Crimes Act1958, s 45(2)(a), as amended by the Crimes (Amendment) Act 2000, s 5.
There are several other matters that were referred to by the sentencing judge which also serve to highlight the nature and seriousness of the applicant’s offending.
The applicant’s offending, which involves five separate instances with two young victims, occurred over a period of just under 4 years. The sentencing judge observed that the offending was not one-off or opportunistic. The applicant had ample opportunity to reflect on the wrong fullness of his conduct and stop. He did not do so when clearly he knew better. As the judge observed, and the Tribunal completely agrees, the applicant’s culpability increased with each successive occasion of offending. She regarded the applicant’s moral culpability as high. Once again, the Tribunal completely agrees. It is a particularly bad pattern of offending. As the judge observed, it was not an instance of isolated offending. She found that the applicant’s offending was in the mid-range of seriousness for offending of this type.
Another factor referred to by the sentencing judge, which is highly pertinent, is of course that the applicant was the uncle of both victims and part of their extended family. She quite rightly explained, lest it needs to be amplified, that for children, growing up and spending time with extended family is an opportunity to develop relationships with others, in a safe and trusting environment. The applicant’s offending was a gross breach of that trust. She described both victims were very young, and that the applicant exploited their innocence and the trust that they placed in him as a much older adult namely their uncle. These features of the applicant’s offending can only be described as very serious and are an additional feature of repugnancy with respect to such offending.
An aggravating feature of the applicant’s offending against the first victim, as identified by the judge and previously noted, concerned the steps that the applicant took to protect himself from having his offending being exposed by telling her that what happened was ‘our little secret’.
Both from the applicant’s evidence in the witness box, and from some materials submitted on his behalf, the Tribunal did not conclude that the applicant contended other than that his offending was very serious. For instance, in a detailed and carefully drafted extensive written submission lodged by a competent and very experienced firm of Immigration Lawyers with the delegate on 4 March 2024, the applicant conceded that ‘his offending was very serious’ for the purposes of sub clause 8.1.1(a) Direction 99 which was the applicable Ministerial Direction made under the Act as at that date.[19] The drafting of that paragraph is not particularly different from the present drafting of clause 8.1.1(1) of Direction 110.
[19] G2, Attachment F, 8.Later in the same written submission in the section addressing the relevant matters applicable to paragraph 8.1.2 of Direction 99, ‘The risk to the Australian community should the noncitizen commit further offences or engage in other serious conduct’, a similar concession is made in the following terms on the applicant's behalf, ‘As a starting point, Mr Hodgson has accepted that his offending was very serious. He accepts accordingly that the community would have a tolerance close to zero of the risk he might repeat it’.
Paragraph 8.1.1 of Direction 110 of course requires the Tribunal as decision-maker to take into account the sentence imposed by the County Court judge for the crimes committed by the applicant. He was, as observed above, given a total effective sentence of 4 years and 10 months imprisonment. A non-parole period of 2 years and 10 months imprisonment was fixed. Whilst it is true that the maximum penalty for such offending as fixed by the Parliament of the State of Victoria is 25 years, a total effective sentence of 4 years and 10 months imprisonment clearly reflects the very serious nature of the applicant’s offending committed against two young vulnerable children. It has been said many times in this Tribunal, and of course in many courts, that in the range of options open to a court in the sentencing hierarchy imprisonment is the last resort. To deprive anyone of their liberty is a very serious step to be taken by a sentencing court and will only be done so when a guilty party has committed a very serious infraction of the criminal law. The applicant has done so in this case.
On this note, concerning the sentence applied and it being a reflection of the nature and seriousness of the applicant’s offending, it should be mentioned that the applicant was 64 years old when he was sentenced in 2021. For someone to have imposed upon them a term of imprisonment of 4 years and 10 months when they are 64 years of age is an extremely significant penalty. Someone of comparatively advanced age sentenced to a lengthy term of imprisonment would find the experience inherently confronting. This is all the more so given that the applicant was sentenced to a term of imprisonment for serious sexual offences committed against young children. It is quite well-known that offenders who have committed serious sexual offences against young children, generally face significant challenges in prison. A sentencing judge would be well aware of this fact. That a significant custodial sentence was imposed, notwithstanding the challenges that the applicant as a 64-year-old man with a previously crime free record would face, is a further reflection of the nature and seriousness of the applicant’s offending.
As for the impact of the applicant’s offending on his victims, once again, the sentencing judge’s reasons provide some considerable details. The issue, as noted above, is helpfully addressed in a section of her reasons entitled, ‘Gravity of offending and impact on the victims’. She had before her victim impact statements from them. The impact of the applicant’s offending on his victims was described by the sentencing judge as significant. This is quite understandable.
The first victim in her impact statement explained that because she had no father, or father figure in her childhood, she lent on the applicant emotionally and trusted him. Given the absence of a father or father figure, it is not difficult to appreciate how a young and vulnerable child, such as the first victim, would develop a state of emotional dependency upon him. She stated that the applicant exploited that trust. As one frequently finds with victims of sexual offending, it profoundly effects their future relationships with men. The first victim explained that she now struggles to feel comfortable around older men. This is again, quite understandable. Also, she has suffered from depression for which she sought treatment. One infers from the sentencing judge’s reasons that it was the applicant’s offending against her that triggered the onset of the depression which she suffered from.
The second victim was said to have experienced wide-ranging impacts as a result of the offences committed by the applicant against her. In particular, these impacts were with respect to her relationships with others. Regrettably, she explained in that victim impact statement that she no longer feels safe around men. Also, she has difficulty interacting with male co-workers. Unfortunately, she also stated that the applicant’s offending has distorted and confused her ability to manage even platonic relationships with men. Other significant relationships in her life were also impacted, including those with her mother, her aunt and cousins. It is quite apparent from this brief explanation of the impact on the second victim, outlined in the sentencing judge’s reasons, that the applicant’s offending has profoundly affected her life, in particular her ability to maintain relationships with men and near relatives. This is highly unfortunate. We do not know whether it will be possible for her relationships with such people to improve in the future.
The sentencing judge also explained that the second victim’s impact statement illustrated the manipulation often inherent in sexual offending against very young children. The second victim also stated that she had long believed that because the applicant was never nasty or yelled at her, that he would never harm her. As one from time-to-time observes with victims of sexual assault that are younger women, the second victim stated that she felt terrible about coming forward because the applicant never appeared to be a ‘bad person’.[20] As a result of this, she still struggles to trust people and experiences anxiety. One pauses to record, that the mental health ramifications caused by serious sexual offences committed against young girls (as appears to be the case with both victims in this instance) can be extremely profound, life altering and long lasting. It is yet another reason why the applicant’s offending can only be categorised as very serious.
[20] G2, Attachment B, 41 [26] etc.
Another dimension to the impact on the victims of the applicant’s offending that arose from their victim impact statements that were before the sentencing judge emerged. In those statements, there was some reference to the fact that the victims were placed subsequently in the care of their aunt and uncle due to a medical condition experienced by their mother. It seems that the victim’s subsequent carers considered that the applicant’s offending had impacted their ability to care for, and to demonstrate affection towards the victims, who have remained anxious and hesitant about physical contact, particularly (and understandably) with males. The judge also observed that their statements attest to the long-term impact on all members of the family that, in the words of their carer, ‘continue to evolve’ from the applicant’s offending.[21] Sadly, the sentencing judge observed that the applicant’s offending had ramifications for the broader family with tensions effectively splitting such family in two.
[21] Ibid [27].
Finally, with respect to the impact on the applicant’s victims, the sentencing judge stated that her summaries of the victim impact statements did not do them full justice. She had regard to the entirety all such statements. The judge concluded that clearly the applicant’s offending had caused the victims and the rest of their family immense pain.
The victim impact statements which have been referred to above also inform one about the cumulative effect of the applicant’s repeated offending. The cumulative effect upon his victims is manifestly apparent from those victim impact statements. The sentencing judge’s summary of them is referred to and repeated. In summary, the offending has caused his victims significant mental health issues as described, profoundly damaged their capacity to maintain interpersonal relationships with others, particularly males, even in a workplace setting in which one should feel safe and at all times have confidence in their capacity to interact with fellow workers. Additionally, there has been the effect on two families.
There is the effect on the victims’ families but also the effect on the applicant’s family. Once the applicant’s offending was exposed it immediately ended his marriage. He had been with his wife since 1978. It was his wife’s sister, the mother of the victims, who informed the applicant’s wife about the offending. The applicant’s wife confronted him with such allegations and requested that he leave the matrimonial home immediately, which he did. As the sentencing judge observed, the applicant’s offending had ramifications for his broader family, the tensions caused effectively split such family in two.
Once the applicant’s siblings found out about his offending his contact with them has been comparatively limited. The applicant’s parents who are elderly and live in a retirement village, do not know of his offending. He has not spoken to them for approximately four or five years because of such offending. The applicant stated that his parents are not aware that he is in prison. He has elected to not inform them of this fact because he says he is very worried about the terrible effect it would have on them and their health in their advanced years. In a sense, this is perfectly understandable.
Another cumulative effect of the applicant’s offending in the context of his family warrants brief mention. His daughter, about whom more will be said later in these reasons, has been a victim of domestic violence and has several health issues. The applicant has been of significant support to her for several years prior to his imprisonment. The evidence is that she has found the applicant’s absence in her life difficult to confront. Also, his incarceration has deprived her of a significant level of emotional and some level of financial support that made a difference to her beforehand.
By reason of the matters articulated above which may be summarised as follows:
(a)That the applicant committed acts of ‘Family violence’;
(b)That the crimes committed by him with sexual crimes or crimes of a sexual nature against children under the age of 10 years;
(c)That the applicant was sentenced as a ‘serious sexual offender’ and by reason of same became a registrable offender under the provisions of the Sex Offenders Registration Act 2004 (Vic) for life;
(d)That the sentencing judge considered his offending as especially serious;
(e)The applicant’s offending involved 5 separate instances with two young victims over a period of just under 4 years, whereby the applicant’s culpability increased with each successive occasion of offending;
(f)That the applicant was the uncle of both victims and part of their extended family;
(g)The steps that the applicant took to prevent his offending being exposed;
(h)The lengthy prison sentence imposed on the applicant;
(i)The distressing impact of the applicant’s offending on his victims as described in their victim impact statements, and
(j)The effect of his offending on his own wife, which led to the irretrievable breakdown of his marriage.
the Tribunal concludes that the applicant’s offending can only be categorised as very serious which must attract extremely heavy weight against revocation of the mandatory cancellation of the visa.
Paragraph 8.1.2 of Direction 110 – The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of Direction 110 provides that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of Direction 110 provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen reoffending; 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 assessing the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct, the Tribunal is substantially guided or informed by the nature of the harm experienced by the two victims of his offending for which he was sentenced at the County Court of Victoria on 13 August 2021. That harm will be, more likely than not, the infliction of significant mental health conditions which would be triggered by such offending. That offending it should be borne in mind was, and is likely to be, if the applicant reoffends, against young girls. In the applicant’s case, not only were they indecent acts committed with a child under the age of 16, but in both cases the victims were under the age of 10.
In addition to the significant mental health conditions that would, more likely than not, be experienced by any victims, particularly young girls, should the applicant engage in further criminal conduct, there is likely to be the concomitant or attendant difficulties that potential victims would face in forming and maintaining relations with other men in the future and even possibly members of their family, as occurred with one of the applicant’s victims. In short, as is not infrequently the case, young girls who are the victims of serious sexual offending find it extremely difficult, if not impossible in later years to form deep and affectionate relationships with men, let alone others. Their personalities become driven by a lack of trust or security in the presence of men, or even persons who are in a position of power over them, and frequently they undergo immense personal struggles because their prior experiences as victims of sexual offending colour their attitude in future dealings with both men, and potentially other authority figures.
It is well-known that many victims of serious sexual offending never recover. Their lives are irretrievably altered. In addition to finding it hard for female victims of serious sexual offending to maintain deep and affectionate relationships with men, there are often long-term career ramifications because they no longer trust employers, superiors or others in the workplace who may exercise authority over them. In other ways, as victims of serious sexual offending, they potentially lose their capacity to apply themselves to their future career possibilities, adequately manage their own personal affairs or develop meaningful personal relationships that make a difference to their daily lives.
The Tribunal does accept the respondent’s contention, that in this setting, the harm that would be caused to the Australian community in the event that the applicant were to reoffend by committing offences similar to those for which he was convicted in the County Court of Victoria 13 August 2021, would be substantial and include significant physical and psychological ramifications for the victims of such offending and the community in general.
In undertaking the risk assessment that the Tribunal is required to by paragraph 8.1.2 of Direction 110 the applicant relies on several grounds to contend that he is a low risk, or indeed a risk close to zero of reoffending. These grounds will be considered in no particular order of priority, as in both written materials lodged on his behalf and in the witness box, there was no particular emphasis on one of these grounds above any other. It was contended on behalf of the applicant that collectively when such factors are taken into account, they justified a conclusion that he is a low risk of reoffending, if not no risk of reoffending.
There was in evidence a ‘Psychological Report’ prepared by Dr Gee a Forensic Psychologist on 4 June 2021. That report was prepared by Dr Gee following a request by the applicant’s lawyers in anticipation of a plea entered on his behalf before the sentencing judge in the County Court of Victoria. It is a comparatively detailed report that was prepared by Dr Gee after he had considered some rather extensive sources of information including the Summary of Prosecution Opening (upon which the sentencing judge referred to in her reasons concerning the fact situation relating to the applicant’s offending), a letter of instruction from his lawyers, a copy of the prosecution brief, a copy of the applicant’s record of interview at a police station and a copy of the indictment. Dr Gee also had an interview with the applicant for approximately 260 minutes at the lawyer’s office. He also conducted psychometric assessments of the applicant and administered several well-known risk management instruments being, the Risk for Sexual Violence Protocol (RSVP), the Static-99 R, and the Structured Assessment of Protective Factors for violence risk (SAPROF).
In the written submission lodged with the delegate dated 4 March 2024, two paragraphs in particular of Dr Gee’s report were highlighted, quite understandably, as they are contained in the section of the report entitled, ‘Summary Risk Judgement: Risk of Future Sexual Violence’. The first paragraph of that section states as follows:
“[11] The static variables present in Mr. Hodgson’s case, as assessed by the Static-99R, indicate that his level of risk of sexual violence was historically in Risk Level 1 (Very Low Risk). A more comprehensive and tailored analysis of Mr Hodgson’s sexual violence risk using the RSVP shows that he represents a Low risk of reoffending sexually; whereas his current circumstances - as assessed by the SAPROF - affords a moderate level of protection against a relapse into sexual violence. Taken together, and based on the information presented in this report, Mr. Hodgson currently demonstrates a Low risk of reoffending sexually in the future; meaning he is much less likely than the typical convicted sexual offender to reoffend (see below [pp 14-19] for a comprehensive account of Mr. Hodgson’s risk profile.”
Dr Gee’s summary of the risk judgement continues in the next paragraph as follows:
“[12] … At this time, it does not appear the case that Mr. Hodgson’s aberrant behaviour would escalate into more predatory acts, nor into sexually deviant behaviour against unknown individuals. Critically, Mr. Hodgson’s current constellation of risk factors sees minimal room for further reduction, as the majority of those identified risk markers for sexual violence are already at their lowest level. Thus, moving forward, the principal goal of risk management/harm reduction is through the further building of Mr. Hodgson’s already moderate level of protection/resilience against relapse. Here, by further strengthening Mr Hodgson’s internal competencies and external resources required to achieve primary human needs in more balanced, adaptive and prosocial ways, he will be less inclined to use those naïve and ill-informed strategies he has previously engaged.”
The sentencing judge in the County Court of Victoria did briefly touch on the contents of Dr Gee’s report in the Reasons for Sentence. She noted that he confirmed that the applicant had no significant mental health issues. Further, that Dr Gee had expressed the professional opinion that the applicant did not meet the diagnostic criteria for a paedophilic disorder. Dr Gee had also noted that the applicant’s offending was historical and constituted his first and only period of aberrant sexual behaviour. The sentencing judge also repeated that having undertaken a comprehensive risk assessment of the applicant, Dr Gee was of the opinion that he was a low risk of reoffending.
The Tribunal accepts that when Dr Gee prepared his report on 4 June 2021, he reached the conclusions that he did concerning the risk of the applicant reoffending. Also, he expressed the opinion after having had an extensive interview with the applicant and administering the diagnostic tests previously referred to, that he is a low risk of reoffending sexually in the future.
Unfortunately, there has not been a more recent psychological report prepared by Dr Gee or any other suitably qualified practitioner concerning the present risk of the applicant reoffending. However, whilst the applicant is, in the opinion of Dr Gee expressed over three years ago, a low risk of reoffending sexually in the future it cannot be said that he is of no risk. Indeed, the applicant when questioned on this topic during cross-examination, whilst contending that he was a low risk of reoffending in the future, readily conceded that it cannot be said that anyone is a zero risk of reoffending. Clearly including himself. This awareness is to some extent quite an important concession.
To the complete credit of Dr Gee, he did address in his report certain character traits or propensities on the part of the applicant that were apparent to him as a result of his consultation and administration of the relevant tests. The Tribunal considers that it is appropriate to further reproduce several passages from Dr Gee’s report that are considered relevant in terms of undertaking the risk assessment that paragraph 8.1.2 requires.
Paragraph [10] of Dr Gee’s report was emphasised in cross examination of the applicant. It records as follows:
“More generally, Mr. Hodgson demonstrates reduced insight into his mental health and psychological wellbeing, and has difficulty articulating those possible links between his presenting symptomology and previous life experiences. Further, whilst he displayed a reasonable appreciation of the need for self-regulation, having a level of understanding in regard to his role in the process of cognitive, emotional, and behavioural control; he presented with an incomplete appreciation of his risk profile and potential future risks.”
In the first part of paragraph [12] of his report, which part was not emphasised by the applicant in the submissions prepared by his immigration lawyers, the following assessment was made by Dr Gee:
“In advancing the foregoing risk judgement, it is accepted that Mr. Hodgson’s current risk profile is not underpinned by offence specific risk markers (that is, an enduring history of aberrant sexual offending, antisocial/psychopathic motives, entrenched paedophilic/paraphilic behaviour, nor explicit intent to reoffend). Instead, Mr. Hodgson’s risk profile is principally driven by associated risk markers (namely, psychological/social adjustment), and he seemingly presents on an avoidant pathway to offending. Of salience within the present context, Mr. Hodgson’s presenting risk is not seen to arise within the context of sexual violence towards either adults or male children; with his risk profile in this domain being similar to that of the average-non-offending-male. Instead, at this time it is most likely that if any risk of sexual violence posed by Mr. Hodgson was to re-occur, it would be in regard to prepubescent female children related/known to him who are left in his sole care/supervision; albeit as noted above, such risk is still seen to present within the Low-Risk range.”
In the section of his report entitled, ‘Personality Functioning/Psychopathology’, Dr Gee wrote:
“[39] Regarding those ingrained, enduring, and pervasive features that could underpin Mr. Hodgson’s emotional, cognitive, and interpersonal difficulties, his presentation was not suggestive of a personality disorder. However, he was noted to display a somewhat schizoid, compulsive, and turbulent personality type with dependent and melancholic features that has some influence over the way he thinks, feels, behaves, and relates to others.”
Another observation made by Dr Gee in his report in the section entitled, ‘Sexual Offence Cognitions’ also warrants being reproduced:
“[41] … Mirroring his general presentation at interview, whilst Mr. Hodgson’s responding on psychometric assessment was not reflective of ingrained/enduring distorted cognitions regarding sexual contact with children, he nonetheless demonstrated a reduced level of insight into those causal mechanisms underpinning aberrant sexual behaviour against children. Saliently, his current appreciation was seen to mirror that of many first-time sexual offenders whom, having committed historical sexual offences, are yet to engage in offence specific psycho education/intervention to better understand their aberrant conduct.”
In the final section of his report headed ‘Recommendations’ Dr Gee made three recommendations to support and enhance the applicant’s psychological well-being and facilitate his longer-term desistance from aberrant sexual behaviour. Those recommendations need not be reproduced in detail. The substance of them were that:
(a)That the applicant address the factors associated with his aberrant behaviour in a psycho-educational format one-to-one or group based-with a suitably experienced psychologist. Such intervention could bolster the applicant’s understanding of the offence process, enhance his insight and further strengthen those core skills that would minimise the potential for future relapse into offending behaviour;
(b)The applicant could benefit from intervention around interpersonal relationships. Specifically, a program of intervention focusing on companionship/intimate relationships in older age, as well as friendships and social-interpersonal connectedness. Such intervention Dr Gee considered might best be delivered in a suitably adapted group-based format for older individuals; and
(c)Despite the applicant’s advancing age, the nexus between his mental functioning, deficits in self-reflection, and personality structure in Dr Gee’s opinion highlighted the potential benefits of engaging in a period of psychological intervention aimed at increasing insight and addressing some of those features embedded within his personality structure, and further enhancing his capacity for adaptive self-control. By increasing the applicant’s internal competencies and external resources to achieve primary human needs in a more adaptive and prosocial manner, he may become less dependent on those dysfunctional strategies he has utilised to date.
These additional passages highlighted above from Dr Gee’s report indicate that there are several unresolved issues that it would be appropriate for the applicant to address. In the first additional highlighted paragraph Dr Gee noted the applicant’s incomplete appreciation of his risk profile and potential future risks. This observation raises concerns with respect to both the risk of reoffending and the question of the applicant’s rehabilitation. This particular trait of the applicant identified by Dr Gee has not been addressed by him undertaking any specialist treatment courses or engaging with clinical psychologists or suitably qualified forensic psychiatrists.
In the second additional highlighted paragraph from Dr Gee’s report, he does mention that if there is any risk of sexual violence posed by the applicant in the future it would be in regard to prepubescent female children related/known to him who are left in his sole care or supervision. Even though that observation is subject to the proviso that he is in the low-risk range, it is of concern, that it is nonetheless a risk. Given this risk, it is of concern that the applicant has not since the preparation of Dr Gee’s report undertaken any courses of rehabilitation or awareness, let alone had any professional assistance from a properly qualified psychologist or a forensic psychiatrist, such professionals being experts in the treatment of serious sexual offenders. If there is a risk, even a low risk of the applicant reoffending against prepubescent females this is of much concern to the Tribunal.
The third highlighted paragraph from Dr Gee’s report also identifies a personality type which would appear to be relevant, to the applicant’s offending and his risk of future offending. It is described as a turbulent personality type with dependent and melancholic features. Once again, insofar as this personality type, or personality trait may have contributed to his offending it has not been addressed since he has been imprisoned. Whilst such personality type remains unaddressed, there must be some risk even if it is minimal, of the applicant reoffending.
With respect to the last highlighted paragraph from the report of Dr Gee it does illustrate a matter of significant concern to the Tribunal as it touches on the applicant’s demonstration of a reduced level of insight into the causal mechanisms underpinning his aberrant sexual behaviour. The applicant’s insight into his offending is of some concern. Both to Dr Gee and in evidence to the Tribunal the applicant consistently maintained that he did not know why he committed his offences. He was unable to offer any explanation for it. In response to a specific question from the Tribunal, he said ‘I can’t answer that’. This is of considerable concern.
The applicant since he has been taken into custody has not undertaken any treatment programs for sex offenders, as one would expect to try and minimise to the maximum possible extent any risk of reoffending. Further, the three recommendations made by Dr Gee referred to above which included one-on-one sessions with a suitably experienced psychologist have not been undertaken. It is surprising indeed, given that the applicant was sentenced as a serious sexual offender, that the prison system has not been able to provide him with appropriate assistance. This is even more puzzling given that he is in a prison in Ararat which houses a significant number of convicted sex offenders. One would have thought that rehabilitation courses and access to appropriate mental health professionals would have been readily available to its inmates. It even seems that it would have been appropriate for the applicant to have been referred to a forensic psychiatrist experienced in treating serious sex offenders.
Reference should be made to several other factors identified by the applicant which it is said on his behalf point to him being a low risk, if not close to no risk of reoffending.
The applicant in several statements and when giving evidence before the Tribunal repeatedly expressed his remorse for his offending and how ashamed he was of his behaviour. This was also an aspect of the applicant’s plea before the County Court of Victoria, where in addition to the guilty plea the applicant’s counsel proffered an apology to the victims of his offending on his behalf. His counsel also informed the Court that he accepted full responsibility for his actions and acknowledged the harm caused by his conduct. There was also a submission to the Court that he had reflected on the wrong that he had done and the hurt he had caused his victims and their family. The applicant did, consistent with the submissions of his counsel in the County Court of Victoria, express to the delegate and the Tribunal an apology, his regret for his offending and the effect that it has had on his victims. Additionally, he expressed a strong resolution never to commit any further offences, let alone sexual offences in the future.
It is said on the applicant’s behalf that the risk is reduced as a result of the prison sentence that he has served. The lengthy term of imprisonment has in effect taught him a lesson and is a powerful influence on him not to reoffend. He has been assessed as a low-risk prisoner. The behaviour of the applicant whilst in prison has been faultless and he is ‘a model prisoner’. There have been no complaints or reports against him. He has undertaken two courses in Alcohol and Other Drugs and Loss together with Alcohol and other Drugs and Stress. He has completed six vocational training courses.[22]
[22] See, G2, Attachment I, 130. The courses are Certificate 11 in Civil Construction, (Control Traffic with Stop Slow Bat), Certificate in Civil Construction (Implement Traffic Management Plan), Education Services, Learning Plan Review, Education Services, Learning Plan Review, Education Services, Learning Plan Vocational Assessment and Education Services, Language, Literacy and Numeracy. He was graded for each of these courses as competent and achieved a pass.
It is further contended that the reporting obligations that the applicant is required to adhere to under the Sex Offenders Registration Act 2004 (Vic) for the rest of his life places him under very strict scrutiny by the relevant authorities. Such monitoring and compliance under that Act, therefore, significantly mitigates any residual risk of him reoffending, which in any event is considered to be low.
Another point made by the applicant is that if he were released on parole almost invariably during any non-parole period he would be subjected to significant restrictions and obligations as a condition of it being granted. As is often the case, parole conditions would be aimed at ensuring compliance and reduction of recidivism. They would be an added factor reducing the applicant’s already minimal risk of reoffending.
The Tribunal acknowledges these further factors identified by the applicant which are likely to reinforce the contention that he is a low risk of reoffending. No doubt they are potentially powerful influences indicating that he is a low risk of reoffending in the future. However, notwithstanding the force in these contentions the Tribunal is concerned that the factors identified in the additional highlighted sections of Dr Gee’s report have not been addressed in accordance with the very sensible professional recommendations made by him. Dr Gee did recommend that the applicant undertake appropriate courses and in particular engage in a program of one-on-one consultations with a suitably qualified clinical psychologist. Presumably such clinical psychologist would be an expert in the treatment of convicted sex offenders.
The question of the applicant’s insight into his offending and why he offended is of concern in assessing the risk of the applicant offending in the future. The fact that he has not been able to provide any explanation for his offending, both to Dr Gee, more than three years ago, in the materials before the delegate, together with his evidence before this Tribunal, does amplify those concerns about the risk of further offending. Whilst the Tribunal does not know the answer to the question, if the five instances of his offending were caused by some unresolved pursuit of sexual gratification, it is a matter or personality trait, that needs to be identified and acknowledged by him, brought to the attention of a suitably qualified professional, and a program of courses and sessions with such suitably qualified clinical psychologist, or indeed, even a forensic psychiatrist to be addressed.
The Tribunal has considered all the material before it and the evidence of the applicant concerning the risk to the Australian community should he commit further offences. Whilst acknowledging that there is significant material contending that he is a low risk of reoffending, given that he has not undertaken any rehabilitation courses for serious sex offenders, or obtained any professional assistance from a clinical psychologist, as recommended by Dr Gee, the Tribunal considers that the seriousness of the potential harm in the future were he to reoffend, as low as that might be, if repeated would more probably than not, be against prepubescent females. Such potential offending is so serious that any risk that it may be repeated is unacceptable. Therefore, very heavy weight must be attached to this primary consideration against revocation of the mandatory cancellation of the visa.
Primary consideration 8.2 of Direction 110 - Family violence committed by the non-citizen.
Paragraph 8.2(1) of Direction 110 provides that the government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
Paragraph 8.2(2) of Direction 110 provides that this consideration is relevant in circumstances where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)there is information or evidence of independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
Paragraph 8.2(3) provides that in considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant:
(a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
(i)the extent to which the person accepts responsibility for their family violence related conduct;
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii)efforts to address factors which contributed to their conduct.
Details of the applicant’s offending which led to his convictions on four charges, being sexual offences against his nieces have been recounted in some detail above and need not be repeated. Being convictions for sexual offences against his nieces, they constitute a sexual assault or other sexually abusive behaviour, within the meaning of the term ‘Family Violence’ contained in paragraph four of Direction 110.
The Applicant did not dispute, either in his submissions to the delegate of the respondent, any other materials lodged both with the delegate and before the Tribunal, or in the witness box, that his offending, for which he was convicted and imprisoned in August 2021 was anything other than family violence. Also, that it was a serious case of family violence, as defined in Direction 110. In the detailed submission dated 4 March 2024, lodged by the Immigration Lawyers previously acting for him, although addressing the considerations contained in the previously applicable Direction 99, it was accepted that the applicant’s offences were family violence offences within the definition contained in paragraph four of that Direction. The definition of ‘Family Violence’ in Direction 99 also included the terms, ‘a sexual assault or other sexually abusive behaviour’.
The submissions lodged with the delegate dated 4 March 2024, also readily conceded that the applicant’s offending against his nieces occurred on five separate occasions between the years 2007 and 2010. This is also apparent from the Reasons for Sentence of the sentencing judge in the County Court of Victoria. Additionally, the applicant readily admitted his offending on the five separate occasions against his nieces in the way described by the sentencing judge in her Reasons for Sentence. Indeed, the plea of guilty is an admission of such offending.
As for the frequency of the applicant’s offending, which is a factor that the Tribunal must consider under paragraph 8.2(3)(a) of Direction 110, it took place over a period of approximately three years. Perhaps the only observation that the Tribunal is minded to repeat, concerning the question of frequency within the meaning of this paragraph of the Direction, is to reiterate the observations of the sentencing judge that the offending was not one off or opportunistic offending. It occurred over a reasonable time span during which the applicant had ample opportunity to reflect or consider the wrongfulness of his conduct and stop. He did not do so, and as the judge observed by reason of that fact his culpability increased with each successive occasion of offending. Therefore, his moral culpability was high.
It is appropriate to record that the Tribunal had the opportunity to observe the applicant throughout the hearing of this application. He is clearly not an unintelligent man, who knows the difference between right and wrong and was clearly capable of rationally considering the gravity of his behaviour as and from the time that he committed the first offence against his first victim. In this sense, because the applicant did not avail himself of the ample opportunity to reflect or consider the wrongfulness of his conduct, and stop leading to increased criminal culpability, as described, the Tribunal has to conclude that there was, with respect to his offending, a trend of increasing seriousness.[23]
[23] It is appropriate to mention that in the submissions lodged with the delegate by the Immigration Lawyers previously acting for him on 4 March 2024 it was contended that because of the historical nature of the offences being reported between 6 and 10 years after the fact, no timeline of offending is specifically determined. Therefore, there is no evidence to suggest that the offending involved a trend of increasing seriousness. The Tribunal cannot accept this contention for the reasons articulated above. As the applicant's culpability increased with each successive occasion of offending, as described by the sentencing judge, there is a trend of increasing seriousness within the meaning of paragraph 8.2(3)(a) of the Direction, notwithstanding the significant time lapse between the offending and such offending being reported to police.
The cumulative effect of the applicant’s offending arises from the impact on his victims which was touched on in detail earlier in these reasons when addressing the factors that the Tribunal is obliged to have regard to under paragraph 8.1.1 of Direction 110, ‘The nature and seriousness of the applicant’s conduct’. Those details are referred to and repeated for the purposes of addressing paragraph 8.2(3)(b) of Direction 110.
For the sake of completion with respect to paragraph 8.2(3)(b) of Direction 110, reference should also be made to this question which was touched on in the submissions of 4 March 2024 by the Immigration Lawyer then acting for the applicant. In those submissions it was accepted that there were offences committed on five separate occasions and the cumulative effect was accepted as being very profound. In making those concessions, the evidence before the County Court from the victims’ impact statements that the effects of the offending on them had been wide-ranging, and significant, and also had ramifications for the applicant’s broader family were acknowledged. The applicant in his statement, and from the witness box when giving evidence, also readily acknowledged the cumulative effect of his offending in that way. He did not at any time, to his credit, shy away from readily admitting that his offending had affected his victims in the way described in the victim impact statements that were referred to by the sentencing judge. Additionally, the applicant was extremely candid both in his statements and from the witness box in acknowledging the cumulative effect that his offending had on his own family and particularly on his wife, who the Tribunal found to be a thoroughly decent person profoundly affected by his conduct.
The Tribunal is now required under paragraph 8.2(3)(c) of Direction 110 to consider the question of rehabilitation and the extent to which the applicant accepts responsibility for his family violence related conduct in the impact of his behaviour on his victims.
As for rehabilitation the applicant has not as at the time of the hearing of the application undertaken any formal or specific rehabilitation courses or programs for sexual offenders. The applicant’s evidence, which is accepted by the Tribunal, is that since he has been imprisoned, he has tried repeatedly to arrange with the prison authorities for him to be admitted to some rehabilitation or light course for sexual offenders. He readily acknowledged that undertaking such courses or programs would be of considerable benefit to him, both in terms of understanding why he offended and also to implement strategies or otherwise raise his awareness of ways to avoid and ensure that he would not reoffend.
It is quite puzzling, but the applicant also advised that he has been allocated a parole officer with whom he has had three meetings to date. In each of those meetings with the parole officer the applicant has asked what courses are available and requested to be admitted to them. Each time he has been told that there are no courses and that he is not qualified for any of them. The applicant was as puzzled as the Tribunal on this topic. The applicant readily conceded that his inability to gain access to and complete an appropriate program of courses for sexual offending is of much concern. He also expressed concern with the fact that he was not able to seek professional assistance from a mental health professional such as a psychologist or psychiatrist experienced in treating sex offenders. The Tribunal completely agrees. Such targeted programs were recommended by Dr Gee for very sensible reasons. It seems that there is a significant gap in the system given that the applicant has not had access to any appropriate rehabilitation programs or professional treatment concerning his sexual offending and any underlying problem connected with it, in the almost three years that he has been in custody.
In the documents lodged with both the delegate and the Tribunal, together with the evidence that the applicant gave in the witness box, he readily accepted responsibility for his offending and acknowledged that it was family violence related conduct. This evidence is accepted by the Tribunal. These expressions by the applicant of acceptance of responsibility for his family violence related conduct were also corroborated by the evidence given by several witnesses on his behalf, details of which need not be repeated. The applicant had with all of those witnesses, over the several years between the first intervention by the police and his subsequent sentencing, not to mention after his imprisonment, discussed in considerable length with those witnesses, who were predominantly family members, the ramifications of his offending. He has come to terms with it, owned up to it and accepted responsibility.
As for the extent to which the applicant understands the impact of his behaviour on the abused, this has been canvassed in some detail in other parts of these reasons. The applicant readily acknowledged the impact on his victims as articulated in their victim impact statements that were before the sentencing judge in the County Court of Victoria. This acknowledgement was both in the statements, submissions lodged on his behalf and also whilst he was in the witness box. In addition to the applicant acknowledging the impact on his victims, as referred to by the sentencing judge, the applicant also to his credit, readily conceded that when his offending was first revealed, and subsequently his wife conveyed to him even further details of the significant impact that his offending had, not only on his victims, but also their mother, who it will be recalled is his wife’s sister, he readily acknowledged such impact also. The victims’ mother, who first raised the applicant’s offending with his wife, understandably has been profoundly affected. Although we have no direct evidence from her, it is apparent that the impact has been significant. This is understandable because as a parent there would be considerable reflection on whether she had properly looked after her children. This is also in addition to the likely reaction of any mother who would most likely question their own judgement in trusting her vulnerable young children with the applicant as she did.
Another acknowledgement by the applicant concerning the impact of his offending should be mentioned briefly. That is of course that the applicant’s offending has caused the breakdown of a very long-standing relationship with his wife and the mother of his five children. The applicant’s wife presented, as mentioned, as a decent person who has been forced to bear a very heavy burden as a result of the applicant’s offending, this should not be underestimated.
Given that the applicant has engaged in acts of family violence that took place over some years against children not only under the age of 16 years but, under the age of 10, with a trend of increasing seriousness, that had a significant impact on his victims, not to mention others, for which he was sentenced to a significant term of imprisonment the Tribunal concludes that very heavy weight must be placed on this primary consideration against revocation of the mandatory cancellation of the visa.
Primary consideration 8.3 of Direction 110 - The strength, nature and duration of ties to Australia
Paragraph 8.5(3) of Direction 110 provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
It is also provided in paragraph 8.5(4) of Direction 110 that this consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
In applying this primary consideration, it is instructive to refer to several passages from the decision in FYBR v Minister for Home Affairs which is frequently referred to in cases before this Tribunal and the courts.[28] Several passages from that decision explain that, as is apparent from an examination of a paragraph of the earlier Ministerial Direction, Direction 99, which expressed similar language, to the extent it contains a statement of the expectations of the Australian community, the clause is “deeming”.[29] As Charlesworth J also explained, the clause imputes or ascribes to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[30] These expectations are established and are to be applied as norms.
[28] (2019) 272 FCR 454.
[29] Ibid.
[30] Ibid [67].
As Mortimer J (as she then was) in YNQY v Minister for Immigration and Border Protection[31] observed, in substance, this consideration is adverse to any applicant where they have failed the character test and have been convicted of serious crimes.
[31] [2017] FCA 1466, 27-8 [76].
The expectations of the Australian community should be determined by reference to the provisions of Direction 99 itself, not by an independent assessment conducted by the Tribunal. The weight to be applied in undertaking the balancing exercise prescribed by Direction 99 is ultimately a matter for determination by the decision-maker, in this case the Tribunal, taking into account all relevant individual factors including countervailing factors from the person’s specific circumstances.[32]
[32] Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396, 19 [97].
The applicant contends that the expectations of the Australian community are neutral with respect to the applicant and no weight therefore should be attached to this primary consideration against revocation of the mandatory cancellation of the visa. There are several grounds relied upon him in support of this contention.
He has readily conceded that he has committed very serious offences against Australian laws. However, otherwise he has been obedient to the laws of this nation for the balance of time he has resided here which is, of course the most of his life having arrived at a comparatively young age.
It is further submitted on the applicant’s behalf that whilst the applicant’s offending would raise concerns with respect to community expectations, it would nonetheless be wholly inappropriate for the Tribunal not to revoke the mandatory cancellation of the visa. This is because of the disproportionately harsh consequences of such a decision. Those consequences may be summarised as follows:
(a)The exclusion from the community of someone who has spent his entire life in Australia, including his formative years;
(b)The return of the applicant to a country with which he has no familiarity, in his senior age, (or perhaps his advancing years), and with no family or community connections;
(c)The devastating impact of such a decision on his Australian citizen (or permanent residents) family network;
(d)The even more devastating impact upon his 10 Australian grandchildren, including those under the age of 18 years, who would lose their grandparent or relationship, most likely irretrievably;
(e)These specific effects on his daughter Naomi who would lose her father’s support on which she is specially relies, given her disabilities, significant health issues, and as a victim/survivor of family violence herself;
(f)The likelihood that the applicant would never see many of his family members again, due to their professed inability to travel to the United Kingdom which, on any view, is one of the most further and expensive parts of the world to travel to from Australia; and
(g)In doing so it would impose upon the applicant an unnecessary double punishment in circumstances where he has a low risk profile, and thus there is no other practical purpose for his exclusion from the community.
Given these matters, the applicant contends that there is no real purpose in him being removed to the United Kingdom given the collateral effects of such a decision which would be caused to the lives of so many Australian citizens or permanent residents. The significant term of imprisonment imposed on him was in effect more than enough. Therefore, properly construing and applying this primary consideration the expectations of the Australian community would be to reach a conclusion that it is inappropriate not to revoke the mandatory cancellation of his visa.
The respondent on the other hand contends it, consistently with the expectation of the Australian community prescribed by paragraph 8.5 of Direction 110 the Australian community, would expect that the mandatory cancellation of the visa not be revoked because the applicant’s offending involved serious sexual offences against children, in this case under the age of 10 years, the gravity of which is reflected in the significant term of imprisonment imposed upon him.
The Tribunal cannot accept the applicant’s contentions concerning this primary consideration. There are several reasons for this.
Firstly, the Tribunal is guided by the provisions of paragraph 5.2 (2) ‘Principles’ of Direction 110 that the safety of the Australian community is the highest priority of the Australian government. The Tribunal has already concluded that the applicant engaged in very serious offending against children under the age of 16 years. Indeed, they are under the age of 10 years. The applicant’s victims fall within the range of the most vulnerable members of society whose innocence was violated by a person who occupied a position of trust with respect to them. The Australian community would expect that the safety of young children, consistent with the priorities of the Australian government, would assume primacy.
Secondly, paragraph 5.2 (4) ‘Principles’ of Direction 110 is also applicable to the applicant and his offending. The Australian community expects that the Australian government can and should cancel a person’s visa if they have engaged in conduct that raises serious character concerns. The Tribunal cannot reach any other conclusion than that the applicant’s commission of serious sexual offences against two children under the age of 10 years raises such character concerns and the relevant sense. Therefore, applying the second sentence of this paragraph of Direction 110 this expectation of the Australian community applies regardless of whether the applicant poses a measurable risk of causing physical harm to members of the Australian community.
Thirdly, the Tribunal guided by the language of paragraph 8.5(1) of Direction 110 should apply the expectation of the Australian community that the applicant not be allowed to remain in Australia, where he has engaged in serious conduct in breach of this expectation, which he clearly has by committing serious sexual offences against young girls under the age of 10 for which he was sentenced to a lengthy term of imprisonment.
Fourthly, having committed acts of family violence the language of paragraph 8.5(2) of Direction 110 is triggered so that non-revocation of the mandatory cancellation of the visa is appropriate because of the nature of the offences, being acts of family violence and also serious sexual offences against children, are such that the Australian community would expect that the applicant should not continue to hold a visa. Australian society has no tolerance for family violence. The applicable provisions of Direction 110 reflect the expectation of the Australian community that a person’s visa will be cancelled when they have engaged in acts of family violence. The Australian community has repeatedly for many years sent a loud and clear message that family violence is intolerable.[33]
[33] DTR21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1237, [70].
Given the applicant’s offending which were five serious acts of serious sexual offending and acts of family violence committed against vulnerable young girls under the age of 10 over several years, with an increasing level of culpability, when he clearly knew such offending was wrong, leads the Tribunal to the conclusion applying the expectations of the Australian community, that extremely heavy weight must be placed on this primary consideration against revocation of the mandatory cancellation of the visa.
Paragraph 9.1 of Direction 110 – Legal consequences of the decision
Paragraph 9.1 of Direction 110 provides that decision-makers should be mindful that an unlawful non-citizen is in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen. It should be noted that a non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.
Lawyers in a submission dated 4 March 2024 lodged with the delegate concerning a similar clause in a previous Ministerial Direction No 99 did address this other consideration.[34] It contended that the legal consequences of the decision, within the meaning of this consideration arise simply because of his removal from Australia upon release from prison. That submission having advanced that contention did acknowledge, however, that no protection findings or non-refoulement obligations arise in this case, for the purposes of paragraph 9.1 of the then applicable Direction No 99.
[34] G2, Attachment F, 109.
There was no evidence, or other material, before the Tribunal that in any way established a non-refoulement obligation arising in favour of the applicant. In other words, there has been no claim by him to be owed protection under any international obligation, or convention to which Australia is a party. There is no evidence before the Tribunal that the applicant will be at risk of a specific type of harm as contemplated by paragraph 9.1 of Direction 110 if he is returned to the United Kingdom.
Therefore, no weight will be attached to this other consideration by the Tribunal.
Paragraph 9.2 of Direction 110 – Extent of impediments if removed
Paragraph 9.2(1) of Direction 110 provides that decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to them in that country.
The applicant is presently 67 years of age.
There was limited evidence before the Tribunal concerning the applicant’s health. There were no medical reports or certificates. The applicant gave evidence, which the Tribunal accepts, that he requires a hip replacement. He stated that he had been offered to have this procedure performed whilst in prison but had declined such offer as he felt he didn’t quite yet need such a replacement. He experiences ongoing hip pain, which is treated by taking a nurofen, which he stated provides only temporary relief. However, in his statement he stated that he is on the waiting list for hip replacement surgery through the St Vincent’s Hospital.
Additionally, the applicant stated that he experiences knee pain caused by arthritis. This condition has been treated with regular physiotherapy provided by the prison system.
There was also some evidence that the applicant has other health concerns including skin rashes and some level of swelling.
Another problem that the applicant submitted he experiences, although it has not been formally diagnosed, nor treated, concerns problems he experiences with his short-term memory. It was explained by him that he might be talking about a particular topic or subject matter and then promptly forget what he was talking about for some time until his memory is refreshed or revived, when it returns to him. The applicant described it in his evidence as ‘just a brain fog’.
The applicant contends that the healthcare system in the United Kingdom is not as good as Australia. He is unaware as to whether he would be able to afford hip replacement surgery there. The Tribunal cannot adjudicate on whether the healthcare system of the United Kingdom is any worse than that of Australia. Suffice to say, that the United Kingdom is a developed and comparatively affluent society, with highly skilled medical practitioners, and there does not seem to be any reason why the applicant would not be entitled to avail himself of its healthcare services in the same way that they are generally available to any other citizen of that nation.
The applicant did say in his evidence, that if he is able to do so it is his desire to continue working. He stated he has no funds left which highlight the need for him to continue working if he can do so. To his credit he stated that although he is a competent plasterer, he is also skilled in other areas and able to do sundry carpentry jobs, handyman tasks and act as a general tradesman. He has in the past worked for an organisation known as the ‘Grey Army’. Apparently, the Grey Army acts as a kind of booking agency connecting older tradesman with householders seeking household or handyman tasks to be undertaken. Given the applicant’s work history, it would seem that he might have some prospect of being able to work in the United Kingdom for a few more years in the future.
Despite the fact that the applicant has not lived in the United Kingdom since early 1967 there are no substantial language or cultural barriers that the applicant would face if he were to return there.
The applicant also emphasises that he has lost all contact with the remaining family that he has in the United Kingdom. The last time he had any contact with relatives in that country was in approximately 1976-77 when an aunty and uncle visited Australia from the United Kingdom. He has no knowledge of where any of those relatives may be, and indeed, even if his aunty and uncle are still alive. The Tribunal accepts that realistically, given the passage of time and loss of contact with any relatives he may have there, it is more probable than not, that there will be no social support network available to him from any family or relatives if he is returned to the United Kingdom.
In terms of economic support, the applicant contends that he would be homeless if he returned to the United Kingdom. In his statement, he explained that he does not know if he would be entitled to any economic support from the United Kingdom government as he has never worked there or contributed in any way such as paying taxes, or towards a superannuation or social security fund. He considers it highly unlikely that at his age and without any connections that he will be able to obtain any employment. He reiterates that even if he were able to work, it is more probable than not, that he would not have many years of work capacity left. He says he has little money left and he does not know what he would do or how he would live in the United Kingdom.
The applicant when in the witness box stated that he had made some relatively limited enquiries of what options might be open to him where he to return to the United Kingdom as a former prisoner. He had been directed to a program emanating from the United Kingdom known as ‘Prisoners Abroad Program’. He knows very little about it other than what he has been appraised of from some fairly rudimentary internet searches. Without more material concerning this program, all that one can conclude is that it is possible, that there may be such a program that would assist him reintegrating into the United Kingdom society were he to return there.
In the submissions lodged on his behalf by his former Immigration Lawyers on 4 March 2024, whilst stating there is insufficient evidence to satisfy a decision-maker that the applicant would qualify for the pension in the United Kingdom, assuming he did, his eligibility would be likely to entitle him to approximately $389.40 (Australian dollars) per week.[35] Assuming, he did qualify for a pension in that amount, presumably that is the benefit generally available to other citizens of that country. Presumably, also he would be entitled to make application for any other social supports such as accommodation that are also generally available to other citizens of the United Kingdom.
[35] Ibid, 110.
The Tribunal readily acknowledges that if the applicant is returned to the United Kingdom, it would be particularly challenging for him, both emotionally and financially. There are also likely to be some challenges to the applicant in navigating his way through the healthcare system in the United Kingdom so as to enable him to receive the medical treatment and attention that he will invariably require from time to time for his several ailments. Above all else it seems, that separation from his wider family, all of whom reside in Australia, will be very difficult for him.
With respect to his wider family members present in Australia, the evidence from several witnesses, including his wife, was that it is highly unlikely that any of them would be able to visit him in the United Kingdom. Principally, this is because his children and grandchildren would not be able to financially afford the costs of travel. It did seem from some of the material in evidence before the Tribunal, that several of the applicant’s children are not well off financially. His wife also stated that in practical terms it is unlikely because none of them even have a passport. His wife stated that she could possibly afford the cost of a trip to the United Kingdom, but financially it would not be easy for her. She also stated that she would not be inclined to relocate to the United Kingdom to be with the applicant. She did concede that for herself, and other members of the applicant’s wider family it would be possible to maintain contact and communication by phone or an internet application.
The respondent has acknowledged some of these challenges as have been outlined above concerning this other consideration.
Overall, the Tribunal considers that given the applicant’s age, health issues, length of time having lived in Australia without any connection to the United Kingdom and the emotional toll that his return to the United Kingdom is likely to cause him, moderate weight should attach to this consideration in favour of revocation of the mandatory cancellation of the visa.
Paragraph 9.3 of Direction 110 – Impact on Australian business interests
This paragraph of Direction 110 states that decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There was no evidence before the Tribunal that related to this other consideration. Therefore, no weight will be attached to it.
For the sake of completeness, the submissions from the applicant’s former Immigration Lawyers lodged with the delegate 4 March 2024 with respect to this other consideration contained in a previous Direction 99, which was in a similar wording, submitted that it was not a relevant consideration in this matter, and therefore no weight should be given to it either way.
CONCLUSION
The Tribunal has attached extremely heavy weight against revocation of the mandatory cancellation of the visa under paragraph 8.1.1 of Direction 110 - The nature and seriousness of the conduct.
Under paragraph 8.1.2 of Direction 110 - The risk to the Australian community should the non-citizen commit further offences or engage another serious conduct, for the reasons articulated, the Tribunal has attached very heavy weight to this primary consideration against revocation of the mandatory cancellation of the visa.
With respect to paragraph 8.2 of Direction 110 - Family violence committed by the non-citizen, the Tribunal has concluded that very heavy weight must be attached on this primary consideration against revocation of the mandatory cancellation of the visa.
Paragraph 8.3 of Direction 110 - The strengths, nature and duration of ties to Australia, the Tribunal has attached very significant weight to this primary consideration in favour of revocation of the mandatory cancellation of the visa.
With respect to paragraph 8.4 of Direction 110 - Best interests of minor children in Australia affected by the decision, the Tribunal has attached moderate weight to this primary consideration in favour of revocation of the mandatory cancellation of the visa.
Under paragraph 8.5 of Direction 110 - Expectations of the Australian community, the Tribunal has attached extremely heavy weight on this primary consideration against revocation of the mandatory cancellation of the visa.
The Tribunal has attached no weight to the other consideration contained in paragraph 9.1 of Direction 110 - Legal consequences of the decision, for the reasons articulated.
With respect to paragraph 9.2 of Direction 110 - Extent of impediments if removed, for the reasons explained, the Tribunal has attached moderate weight to this other consideration in favour of revocation of the mandatory cancellation of the visa.
No weight has been attached by the Tribunal on the other consideration contained in paragraph 9.3 of Direction 110 - Impact on Australian business interests, because there was no evidence before the Tribunal articulating a claim with respect to it.
When comparing the weight attached to the considerations against revocation of the mandatory cancellation of the visa and those in favour of its revocation several things emerge. Paragraph 5.2(2) of the Principles to Direction 110 state that the safety of the Australian community is the highest priority of the Australian government. Paragraph 5.2(4) concerns the Expectation of the Australian community where the conduct of the non-citizen raises serious character concerns, such expectation applies regardless of whether the non-citizen poses a measurable risk of causing physical harm.
At any level, one must recognise that the safety and protection of young children, particularly young females, is not only the highest priority of the Australian government and community, it is a critical expectation. Young girls are vulnerable and are entitled to expect that they will grow up and live their lives free of interference in a safe, healthy, risk-free and happy environment. Certainly, they (and the Australian community) also have an expectation that they will not be the victims of sexual offences by a trusted relative. The applicant’s offending served to deny his victims those entitlements and expectations that are every child’s right.
The very heavy weight that the Tribunal has attached to the two parts of primary consideration 8.1 - Protection of the Australian community, clearly must (as permitted by paragraph 7(2) of Direction 110, taking the relevant considerations into account) attract greater weight than other primary considerations. When the very heavy weight attached to primary consideration 8.2 - Family violence committed by the non-citizen, together with the extremely heavy weight attached to primary consideration 8.5 - Expectations of the Australian community is taken into account, collectively they must outweigh those primary considerations that have been found to favour the applicant under paragraphs 8.3 - The strength, nature and duration of ties to Australia and 8.4 - The best interests of minor children in Australia together with the other consideration in paragraph 9.2 - Extent of impediments if removed.
The Tribunal has found that, collectively the weight attached to the primary considerations against revocation of the mandatory cancellation of the visa, outweighs the weight attached to the considerations in favour of revocation. These findings are consistent with paragraph 5.2 Principles, of Direction 110 which provides that non-citizens who engage or have engaged in criminal conduct should expect to forfeit the privilege of staying in Australia.
By reason of the foregoing matters the Tribunal is not satisfied that there is another reason to revoke the mandatory cancellation of the visa. Therefore, the correct and preferable decision is that the reviewable decision be affirmed.
DECISION
By reason of the foregoing matters the reviewable decision is affirmed.
I certify that the preceding 240 (two-hundred and forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Cameron
..................................[sgd]......................................
Associate
Dated: 23 July 2024
Dates of Hearing: 9 July 2024
Applicant Representative Self-represented
Respondent Representative Mr. Ingmar Duldig, Clayton Utz
0
4
0