HQKW and MINISTER FOR IMMIGRATION AND CITIZENSHIP - [2010] AATA 763

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 763
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/3278

GENERAL ADMINISTRATIVE DIVISION )

Re HQKW

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Date23 September 2010
PlaceBrisbane

Decision

The Tribunal sets aside the decision under review and remits the matter to the respondent in accordance with a recommendation that the cancellation of the applicant’s visa be considered by reference to evidence of the likelihood of reoffending and the prospects of rehabilitation.

..............Signed................
Deputy President

CATCHWORDS
CITIZENSHIP & MIGRATION – cancellation of visa – applicant convicted of sexual offences against a child – character test not satisfied – discretion to cancel visa enlivened – Direction No 41 of 3 June 2009 – primary consideration of protection of Australian community – seriousness and nature of relevant conduct and risk that conduct may be repeated – applicant not yet participated in sexual offenders’ rehabilitation program – applicant not eligible for parole until December 2012 – insufficient evidence of applicant’s likelihood of reoffending or of prospects of rehabilitation – decision under review set aside and remitted with recommendation that cancellation of applicant’s visa be considered by reference to evidence of likelihood of reoffending and prospects of rehabilitation
Migration Act 1958 (Cth), ss 499, 501(2)
REASONS FOR DECISION

23 September 2010 Deputy President P E Hack SC

The applicant in these proceedings was born in Western Samoa in 1968. He moved to New Zealand in 1987 and to Australia in 1999. Apart from some brief absences in New Zealand and Samoa on holidays he has remained in Australia since. His entitlement to live in Australia was by virtue of a class TY subclass 444 special category visa.
On 22 July 2010, that visa was cancelled by a delegate of the respondent, the Minister for Immigration and Citizenship pursuant to s 501(2) of the Migration Act 1958 (Cth). That section permits the Minister (or delegate) to cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test or the person does not satisfy the Minister that the person passes the character test.
It is sufficient to say that there is no doubt in the present case that the applicant does not pass the character test because on 16 June 2008 he was convicted in relation to a number of sexual offences against a child who was his step daughter and was sentenced to effectively a term of imprisonment of 9 years.
Where the character test is not satisfied, the discretion to cancel the visa is enlivened. The Minister has made a direction pursuant to s 499 of the Migration Act, Direction no 41 of 3 June 2009, which sets out matters to be taken into consideration by inter alia the Tribunal in performing functions and exercising powers under the Migration Act.
Before turning to the matters in that direction I should say something about the background to the matter.
The offences of which the applicant was convicted were truly appalling. Commencing around the time of the twelfth birthday of the victim, the applicant abused her. What started off as indecent dealing shortly turned to maintaining a sexual relationship which continued until the child was approximately 18 years old. The sentencing Judge described the conduct as appalling and despicable. That it certainly is. It was an extraordinarily gross breach of trust; the trust of the child involved, the trust of the applicant’s wife and the balance of his family. That family is relevant because the applicant has a number of other children who are presently aged under 18 years.
The ministerial direction to which I have referred has as its stated objective to regulate, in the national interest, the coming into and presence in Australia of non-citizens. The directive indicates that the government “seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens”. The government expresses itself as especially mindful to protect the safety of, relevantly in the present case, minors, amongst the more vulnerable members of society.
In deciding whether to cancel a visa, the direction requires me to consider what are described as the primary considerations which are as follows:
(a)the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b)whether the person was a minor when they began living in Australia;
(c)the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d)relevant international obligations, including as is presently relevant, the best interests of the child.
The primary consideration of the protection of the Australian community is to be assessed by reference to factors which can include the seriousness and nature of the relevant conduct and the risk that the conduct may be repeated. There is no doubt that on any view the conduct here was extremely serious and truly appalling. It was conduct that was repeated over and over again over a period of some six years. The Minister submits that having regard to the frequency and severity of the offending behaviour and the fact that the applicant has not participated in the sexual offenders’ rehabilitation program, that I would find that there is a real risk of the applicant committing further sexual offences, particularly, it is said, because he has not addressed the cause of his criminal behaviour.
The difficulty I have in this case is in reaching that conclusion on the basis of the evidence that is before me. There is undoubtedly the fact of repeated offending behaviour over a lengthy period but whether that, even in the absence of a sexual offenders’ rehabilitation program, means that the applicant is likely to commit further offences is not something that I am presently able to make a judgment on.
The applicant, on the material before me, is not eligible for parole until December 2012 at the earliest. It is, I think, notorious that the applicant will be obliged to undertake a sexual offenders’ treatment program in prison prior to being released on parole. I say that is notorious because the reports of the Supreme Court of Queensland are replete with applications for judicial review by prisoners who have alleged jurisdictional error on the part of correction authorities by refusing parole in such circumstances.
My present difficulty is that I regard there being insufficient material for me to make an informed judgment either on the applicant’s likelihood of reoffending or on his prospects of rehabilitation also, as it seems to me, a relevant consideration.
It would be, I think, a wrong exercise of the discretion to simply say that the material does not satisfy me that there is a risk of reoffending, because it does not satisfy me that there is no such risk. That consideration flows over into the other principle consideration that is potentially relevant, that of the best interests of the children, that is, the 6 children under 18 that presently reside with the applicant’s wife in the matrimonial home. The Minister’s submission suggests that those children are potentially at risk of reoffending by the applicant. I recognise that is a submission that may have some merit in the circumstance where the applicant has already abused over a number of years a child in his care but again the submission suffers from the absence of any evidence from which I could confidently draw any conclusion.
Other things being equal, there would be no doubt that the best interests of the children would be a consideration that would tell strongly against a cancellation of the applicant’s visa. Whether that is true or not in the particular circumstances cannot, in my view, be confidently concluded where it is simply unknown what risk of reoffending exists and what prospect of rehabilitation there is.
In circumstances where it seems to me quite likely that within the next period of time, and certainly before the applicant’s release, he will be required to undergo sexual offender treatment programs and where his conduct will likely be assessed by persons with professional qualifications and expertise to make an informed judgment about prospects of rehabilitation and risks of recidivism it is, in my view, preferable in the present case to set aside the decision and remit it to the respondent for reconsideration in accordance with a recommendation that the decision be revisited when there is material from which an informed judgment about the risk of reoffending and prospects of rehabilitation can be reached.
It will be entirely open to the respondent to make a decision at that time unfettered by any comment that I may make but it seems to me in the circumstances of this case where there is a considerable period of time that will elapse prior to a decision needing to be made the best course is to proceed as I have indicated.
Accordingly, the decision will be set aside and remitted to the respondent in accordance with a recommendation that the cancellation of the applicant’s visa be considered by reference to evidence of the likelihood of reoffending and the prospects of rehabilitation.
I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed:         .........Signed..........................................................
  Associate
Date of Hearing  23 September 2010
Date of Decision  23 September 2010
For the Applicant  The applicant’s spouse
Solicitor for the Respondent     Clayton Utz