HQTQ and Minister for Home Affairs (Migration) - [2019] AATA 5291

HQTQ and Minister for Home Affairs (Migration) [2019] AATA 5291 (9 December 2019)
Division:GENERAL DIVISION
File Number: 2019/5930
Re:HQTQ
APPLICANT

AndMinister for Home Affairs
RESPONDENT

Decision

Tribunal:Member Tigiilagi Eteuati
Date:9 December 2019
Place:Brisbane

The decision under review is affirmed.
..............................[SGD].........................................
Member Tigiilagi Eteuati
Catchwords
MIGRATION – mandatory cancellation of Applicant’s visa under s 501(3A) – Applicant failed to pass the character test - whether there is another reason why cancellation decision should be revoked - application of Direction No. 79 – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs[2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection[2016] FCA 1166
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
LQZW and Minister for Home Affairs (Migration) [2019] AATA 93
Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66
Minister for Home Affairs v Omar[2019] FCAFC 188
Nigam v Minister for Immigration and Border Protection[2017] FCAFC 127
Omar v Minister for Home Affairs [2019] FCA 279
Secretary to the Department of Justice and Regulation v LLF[2018] VSCA 155
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2015] HCA 15
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION
Member Tigiilagi Eteuati
9 December 2019
background

This is an application by HQTQ (“the Applicant”) for review of a decision made by the delegate of the Minister for Home Affairs (“the Minister” or “the Respondent”) on 13 September 2019 not to revoke, under section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), the cancellation of the Applicant’s Class BC Subclass 100 Partner visa (“the visa”).
The Applicant first arrived in Australia as a resident on 15 June 2013 at the age of 28 on a Class UF Subclass 309 (Provisional) Partner visa. The Applicant was absent from Australia between 14 May 2016 and 30 May 2016. The Applicant was granted a Class BC Subclass 100 (Permanent) Partner visa on 17 February 2015 and this was the visa which was cancelled by the Minister.
On 31 August 2018, the Applicant was convicted of four counts of “indecent treatment of children under 16 child under 12 years - domestic violence offence” and sentenced to 18 months imprisonment on each count. The sentences were to be served concurrently meaning that the Applicant was given a total effective sentence of 18 months imprisonment to be suspended for two years after serving six months imprisonment.
On 13 September 2018, the Minister cancelled the Applicant’s visa pursuant to section 501(3A) of the Act. The Applicant was invited to make representations about revocation of the cancellation decision. On 7 October 2018, the Department received representations from the Applicant seeking revocation of the cancellation decision. The Applicant provided further supporting documents in June 2019.
On 13 September 2019, the Minister’s delegate decided not to revoke the original cancellation decision. A copy of the reasons for that decision was given to the Applicant’s then representative by email on 16 September 2019.
On 19 September 2019, the Applicant applied to the Tribunal for review of the Minister’s delegate’s decision not to revoke the original cancellation decision.
The review application was heard by the Tribunal on 25 and 26 November 2019.
For the reasons below, I have found that the Minister’s delegate’s decision to not revoke the cancellation of the Applicant’s visa is the correct decision and I have affirmed that decision.
issues
Pursuant to section 501CA(4) of the Act, the Minister may revoke the decision made under section 501(3A) of the Act to cancel the Applicant’s visa. Subsection 501CA(4) provides:
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
The Applicant was invited to make representations to the Minister about revocation of the cancellation of his visa and he made representations in accordance with the invitation. Thus, section 501CA(4)(a) is satisfied in this case.
The two remaining issues are:
(a)Whether the Applicant passes the character test as defined in section 501 of the Act; and
(b)Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Tribunal finds that the Applicant passes the character test or that there is another reason why the decision to cancel the Applicant’s visa should be revoked, the cancellation decision must be revoked.
The Tribunal considers that the meaning of “another reason” in subparagraph 501CA(4)(b)(ii) of the Act is a reason other than that the Applicant passes the character test. The Full Court of the Federal Court has found that there is no residual discretion to be exercised once the Minister (and in this case, the Tribunal) finds that the Applicant passes the character test or there is another reason why the cancellation decision should be revoked. The Full Court has also found that the “reason” in subparagraph 501CA(4)(b)(ii) of the Act does not mean “any reason” but rather the determinative reason for revocation arrived at after a balancing of factors both in favour and against revocation.
In Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66 the Full Court of the Federal Court (Collier J, with whom Logan and Murphy JJ agreed), after citing with approval the reasons of North ACJ at paragraphs [38] and [39] of his decision in Gaspar v Minister for Immigration and Border Protection[2016] FCA 1166, stated at [31] and [32]:
“I agree with this analysis. The primary Judge in these proceedings found, and the parties are ad idem, that s 501CA(4)(b) requires the Minister to revoke the cancellation if he or she is satisfied of relevant requirements. To that extent his Honour held that “may” in s 501CA(4)(b) means “must”. I consider that this is a correct construction of s 501CA(4)(b).
In relation to the question whether s 501CA(4)(b)(ii) contemplates an evaluative process on the part of the Minister, I respectfully adopt the reasoning of North ACJ in Gaspar [2016] FCA 1166 at [38]-[39]. In so doing, I note that the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds “any” reason why the cancellation decision “could” be revoked”. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation. This is the exercise upon which the Minister clearly embarked in this case. It follows that I respectfully agree with the view formed by his Honour at [52] and [53] of the primary Judgment.”
If the Tribunal is satisfied that the Applicant passes the character test or that there is another reason why the cancellation decision should be revoked, the Tribunal must find in the Applicant’s favour. The appropriate decision in these circumstances would be for the decision refusing to revoke cancellation to be set aside and for a decision in substitution to be made revoking the cancellation decision.
Evidence
The Tribunal has considered all of the evidence permissibly before it including the documents described in section 501G of the Act (“G Documents”), the documents tendered into evidence by the Applicant and marked as exhibits A1 to A3 and the documents tendered into evidence by the Respondent and marked as exhibit R1. The evidence contained in these documents is discussed throughout these Reasons: see “Annexure 1”. Although the Tribunal has considered all of the relevant material, the Tribunal has not discussed each potentially relevant document in these Reasons. Rather, the Tribunal has referred to the evidence which was considered to be the most relevant to the decision.
The Tribunal is of course aware of the restrictions on the consideration of certain evidence contained in subsections 500(6H) and (6J) of the Act. The Tribunal has not had regard to any evidence provided in support of Applicant’s case which was not provided to the Respondent at least two (2) clear business days prior to the hearing. However, in accordance with the decision of the High Court in Uelese v Minister for Immigration and Border Protection [2015] HCA 15, the Tribunal has considered the evidence of witnesses provided in answer to questions in cross-examination by the Respondent and questions from the Tribunal.
A summary of evidence is provided below from paragraph 36 of these Reasons.
does the Applicant pass the character test?
Subsection 501(6) relevantly provides:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
Subsection 501(7) relevantly provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…
The Applicant will be taken to have a substantial criminal record, and thus not pass the character test, if he has been sentenced to a term of imprisonment of 12 months or more.
Subsection 501(12) of the Act provides that “imprisonment” includes any form of punitive detention in a facility or institution.
Offending history
An Australian Criminal Intelligence Commission report for the Applicant dated 15 March 2019 shows that on 31 August 2018, the Applicant was convicted of four charges of “indecent treatment of children under 16 child under 12 years - domestic violence offence” and sentenced to 18 months imprisonment on each count (served concurrently) to be suspended for two years after serving six months imprisonment.
The Tribunal is satisfied the Applicant has a substantial criminal record for the purposes of paragraph 501(6)(a) when read with paragraph 501(7)(c) of the Act, as the Applicant was sentenced to a term of imprisonment of at least 12 months.
Consequently, the Tribunal is satisfied that the Applicant does not pass the character test.
Is there Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether there is another reason why the cancellation of the Applicant’s visa should be revoked, the Tribunal must comply with any Directions made by the Minister pursuant to section 499 of the Act. In this case Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) applies. The Direction provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s visa should be revoked.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the primary and other considerations relevant to the individual case.
The relevant considerations in relation to consideration of revocation of a cancellation decision are contained in Part C of the Direction.
Paragraph 13 of the Direction provides for three primary considerations. They are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Paragraph 14 of the Direction provides for other considerations. They include, but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Subparagraphs 8(3) to (5) of the Direction provide:
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 Colvin J stated at [23]:
“… Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non-refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
The Tribunal considers that Colvin J’s assessment regarding the various considerations in Direction 65 apply equally to the considerations in the current Direction (Direction 79).
The principles in paragraph 6.3 of the Direction reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable and are to inform the consideration of each of the primary and other considerations.
The principles in paragraph 6.3 of the Direction provide a framework within which decision-makers should approach their task of deciding whether to revoke the cancellation of a visa. The principles in paragraph 6.3 are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Summary of evidence
The following is a summary of the evidence. The evidence referred to below includes evidence provided in written material submitted to the Minister’s Department and the Tribunal and evidence given by witnesses at the hearing in response to questions in cross examination and from the Tribunal.
The Applicant
The Applicant was born in India in 1985. The Applicant was raised in India and completed primary and secondary schooling there. His parents are both of mixed British and Indian heritage and are Christians. The Applicant said that neither of his parents spoke an Indian language or that they spoke Hindi very poorly. Despite neither of his parents speaking and Indian language they had both been employed. His father was employed in banking and his mother was employed as a teacher. The Applicant himself says that he speaks Hindi and Telugu in addition to English. He said that he learned these languages in school.
The Applicant said that he commenced working at the age of 18. He then worked in banking in India before moving to Dubai to work in fraud detection for a company. After spending less than a year in Dubai, he returned to India as his mother was ill. He then worked in India as a project manager for two years.
The Applicant said that he was introduced to his wife in 2011. He said that his mother and his wife’s mother had been friends since they were children. He said that his wife’s grandmother and his father were first cousins.
The Applicant said that he and his wife first met over Facebook and began dating long distance. He said that at some point in 2012, his wife visited India for about 10 days where they first spent time together in person. His wife returned to Australia before returning to India where they were married in February 2013. The Applicant indicated that when they were in India for the wedding, his wife, who has asthma, became ill owing to the pollution in India and had to attend hospital.
The Applicant first arrived in Australia in June 2013. He said that initially it was difficult to secure employment. He said that he completed a course to be a security officer and then worked as security officer on weekends. He said that he did this work for approximately a year. He then secured a position as a reconciliation analyst however the company closed down and he became redundant. He then secured work with another company on a casual basis in the claims department and then as a senior account officer. The Applicant then became a senior account officer on a permanent basis with that company.
The Applicant indicated that he and his wife had been living with his wife’s parents for almost the entire time since he has been in Australia. He said that he and his wife decided to do so in order to save money for their own home. The Applicant said that he had been able to save money to raise a deposit for a block of land and that the couple had taken out a mortgage to build a house on the land. The Applicant said that he and his wife moved into the house two or three months before he was sent to gaol in August 2018.

Initially, the Applicant indicated that, if he were allowed to remain in Australia, he wanted to work and earn money to repay his family members the money that he owed them. He also indicated that he wished to earn money to pursue an appeal to have his convictions overturned. He also wished to pay off his home loan. Later, after it had been put to the Applicant that he had been offered a job as a farm manager on his uncle’s farm, the Applicant said that if he were allowed to remain in Australia he would reside on the farm with his wife for a year or two before returning to live in the family home.
In his written statements, the Applicant had indicated that he feared he would not be able to gain employment if he had to return to India as he said that it was incredibly difficult to gain employment there. In his written statements the Applicant indicated that he feared the couple would end up “poor and homeless” if he had to return to India. The Applicant also indicated that he would be an outcast if he returned to India. However, at the hearing the Applicant stated:
“If I was to go back to India, look, I’ve lived in India before for 25 or 27 years of my life, I can go back and I can do something with my life.”
The Applicant went on to indicate that he was concerned primarily for his wife’s well-being. He indicated that his wife, who has asthma, became very ill when they were last in India owing to the pollution there. He also indicated that his wife had uterine bleeding and polycystic ovarian syndrome disease (“PCOS”) and expressed concerns that she would not be able to obtain appropriate treatment for these conditions in India. The Applicant indicated that he believed that his wife would “face huge problems” in India as she could not speak any Indian languages. The Applicant indicated that as his wife had been born and raised in Australia, she would have problems adapting to the culture in India. The Applicant indicated that he believed that his wife would find it very difficult to obtain employment, especially in her line of work in beauty therapy.
The Applicant also indicated that he was concerned that his wife, who had indicated that she would return to India with him if he had to return there, would be permanently separated from her family in Australia.
The Applicant indicated that he had spent approximately $100,000 on legal fees for his legal defence in the criminal proceedings. He indicated that he and his wife had borrowed all of this money from family and friends in Australia. The Applicant indicated that if he was returned to India he would be unable to repay this money to his friends and family.
The Applicant admitted that he had family in India including his parents and his grandmother. However he said that he would not be able to gain any substantial assistance from them as they were old and required care themselves. He said that his father no longer worked owing to a stroke that he suffered and that his mother had been quite ill. The Applicant admitted that he also had cousins and friends in India with whom he maintained contact.
The Applicant indicated that since he has been imprisoned, he has ceased to earn money and that his wife has been struggling to meet their financial obligations. The Applicant indicated that the couple has had to put their house up for rent in order to help pay the mortgage. In addition, the Applicant indicated that his wife had to borrow money from her family in order to help pay the mortgage, legal fees, medical fees and other household expenses.
In his statement of 13 June 2019, under the heading “International non-refoulement obligations”, the Applicant stated “I do not believe this is relevant to my circumstances”.
Details of Offending
A Queensland Police Service Court Brief containing the allegations put by the police against the Applicant. The first two charges related to a seven-year-old child who was the son of the Applicant’s brother-in-law. The first charge related to offending alleged to have occurred between 6 April 2017 and 10 April 2017. The second charge related to offending alleged to have occurred between 1 January 2016 and 10 April 2017. In relation to the first two charges the Court Brief provided:
“CHARGE 1
The victim child stated that the previous weekend he had been in the defendant’s bedroom sitting on the bed with the defendant and the defendant had touched him on the private parts over the top of his clothing. The victim child described squeezing action by the defendant. The victim child stated that his aunt had been in the room at the time and that she had laughed but that the defendant had not said anything to him.
CHARGE 2
The victim child stated that there had been another occasion some time prior to this (he was unsure when), when he had also been in the defendant’s room sitting on a chair. He stated that the defendant had been sitting on the bed and that he had again touched the victim child on the private part through his clothing but on this occasion described a tapping motion.
The victim child stated that he told his mother about what had happened when he got home after the most recent occasion.
The victim child mother subsequently advised the victim’s father of the allegation who then spoke with the defendant. The victim’s father states that the defendant admitted to him that he had touched the victim child, however stated that he had just been mucking around and have not meant anything by this so the victim’s father had thought nothing about it.
On the 14th day of April 2017, the victim child’s mother telephoned the defendant to ask him about what had occurred, however the defendant initially denied having been at the offence location except to wash his vehicle and denied ever touching the victim child in any way. The defendant also denied having the conversation about this with the victim’s father.
…
On the 23rd day of April 2017, Detectives from the [location redacted] I attended the offence location to speak with the defendant however he was not home. They spoke with the victim child’s father who verified he had a conversation with the defendant and that the defendant had told him he had touched the victim child but that he had been mucking around.
The defendant was subsequently located in [location redacted] and advised of the complaint and of his rights. He denied touching the victim child and denied having any conversation about this with the victim child’s father. He subsequently travelled to the [location redacted] Police Station in his own vehicle and spoke to a solicitor regarding a police interview. He declined to answer any further questions and was arrested and transported to the [location redacted] Watchhouse where he was charged.”
Charges three and four related to offences committed against the nine-year-old son of the Applicant’s brother-in-law. In relation to charges three and four the Court Brief provided:
“CHARGES 3 & 4
The victim child stated that some time last year (he was unsure exactly when), he had been at his father’s house having a shower. He stated that the defendant entered the bathroom whilst he was in the shower and touched him on the penis by squeezing it. He stated that he had told the defendant to stop it and pulled away and the defendant left the room. He stated that a short time later when he was getting dried and about to get dressed, the defendant again entered the bathroom and touched him on the private parts before again leaving the bathroom.
On the 23rd day of April 2017, Detectives from the [location redacted] attended the offence location to speak with the defendant however he was not home. They spoke with the victim child’s father who verified he had a conversation with the defendant and that the defendant had told him he had touched the victim child but that he had been mucking around.
The defendant was subsequently located in [location redacted] and advised of the complaint and of his rights. He denied touching the victim child and denied having any conversation about this with the victim child’s father. He subsequently travelled to the [location redacted] Police Station in his own vehicle and spoke to a solicitor regarding a police interview. He declined to answer any further questions and was arrested and transported to the [location redacted] Watchhouse where he was charged.”
The information above from the Court Briefs was put to the Applicant for comment. The Applicant indicated that the Court Briefs accurately described the offences for which he was convicted. The Applicant also indicated that the description in the Court Briefs matched the evidence given by the child victims during the trial. The Applicant denied that he had ever touched the children as alleged. The Applicant denied that he had ever had a conversation with the child victims’ father, his brother-in-law, in which he had admitted that he had touched the children in the way described. The Applicant indicated that the children had either lied or fabricated the stories. The Applicant indicated that he had always maintained his innocence. While he agreed that he had access to the children when they visited the house where he lived with his wife, brother-in-law and parents-in-law, there was never a time at which he was alone with the children.
The Applicant suggested that the children had been coerced by their mother into fabricating stories about abuse by the Applicant in order to secure sole custody of the children.
The Applicant indicated that during the Easter weekend in 2017 when he and his wife were visiting a cousin in Melbourne, he received a telephone call on his wife’s telephone from the mother of the children. He said that the children’s mother accused him of indecently dealing with her children and was “badgering” him to accept that he had done so.
The Applicant said that upon returning to Queensland, he visited his wife’s grandfather who was in hospital. He and his wife then visited his wife’s grandmother to care for her while his wife’s grandfather was in hospital. He indicated that his brother-in-law called him indicating that the police would be visiting him shortly. He indicated that when the police arrived he volunteered to accompany them to a police station. He said that he contacted a lawyer who advised him not to speak with the police. The Applicant indicated the police took fingerprints, DNA and photographs and released him at approximately one or two o’clock the next morning.
The Applicant indicated that after he was released from the police station, he sent a message to his manager at work telling him that he had been charged with the offences. He was given a week’s leave and the company assigned their chaplain to counsel the Applicant. The Applicant remained in the community on bail from April 2017 until he was convicted and sentenced on 31 August 2018. The Applicant indicated that after his release on bail he and his wife engaged a builder will build a house on his property. He indicated that he continued to work during his release on bail. The Applicant indicated that he and his wife moved into the newly built house two or three months before he was imprisoned on 31 August 2018.
The Applicant indicated that he pleaded not guilty to all four charges and that his criminal trial went for five days from 25 August 2018 and that he was sentenced on 31 August 2018. The Applicant indicated that during the hearing, the court heard recorded evidence from the child victims including cross examination of the children. The Applicant indicated that the court heard evidence from the children’s mother, her partner and his wife.
The Applicant indicated that he did not seek to appeal his conviction within the 28 day period in which an appeal could be sought as he was afraid to use the telephone located in the prison yard to call his lawyer. He said that he had been beaten on one occasion in the yard. Later in the hearing, he said that there were additional reasons why he did not seek to appeal his conviction. First, he said that he did not know how to appeal or the process for seeking to appeal. In addition, he said that other inmates had advised him that because his visa was cancelled and he was not an Australian citizen, he was not entitled to Legal Aid to assist with an appeal.
The Tribunal pointed out that the Applicant had been released from prison for some time and had not sought to seek an extension of time in which to lodge an appeal. The Tribunal asked the Applicant whether there was any reason for this. The Applicant indicated that Legal Aid had told him that they would not fund the appeal proceedings as the appeal was already outside of time. The Applicant indicated that he did not have the financial means to pay for an appeal. He said that he had been advised by his lawyers that it would cost between $75,000 and $80,000 which he did not have. The Applicant indicated that he and his wife had already borrowed over $100,000 from family members in order to fund his criminal defence. Later in the hearing, the Applicant indicated that if he were allowed to remain in Australia he would save money to lodge an appeal of his conviction and to pay back his family members the money he had borrowed to fund his criminal defence.
The Applicant’s wife
The Applicant’s wife provided a number of statements to the Department and the Tribunal and appeared before the Tribunal to give evidence during the hearing.
The Applicant’s wife was born and raised in Australia to parents of Indian heritage. She and her family members are Roman Catholics. Her parents arrived here in their 20s in the 1980s.
The Applicant’s wife gave evidence which was largely consistent with that of the Applicant regarding how they met and how the relationship progressed. She said that they were introduced by their mothers in 2011. She said that they began communicating via Facebook and Skype. The Applicant’s wife said that she flew to India to meet the Applicant and spent about two weeks with him on that occasion.
The Applicant’s wife indicated that she travelled to India in 2013 for some six weeks and the couple were married there in February 2013. The Applicant’s wife explained that during that trip she fell ill and went to the hospital to receive treatment. She said that she suffers from asthma and that she could not handle the pollution in India. The Applicant’s wife indicated that when she went to the hospital she was afraid of contracting diseases as the hospital was dirty and that there were cigarette butts, used needles and drops of blood on the floor.
The Applicant’s wife said that in 2014 she had been struggling with menstrual issues. She said that she had been in pain and would offer suffer from uncontrollable bleeding. The Applicant’s wife indicated that last year she was diagnosed with PCOS endometrial hyperplasia and dysfunctional uterine bleeding. She said that the PCOS was a condition which caused ovarian cysts. She said that her chances of becoming pregnant were “slim”. The Applicant’s wife indicated that she had to have regular treatment to cut back the lining of her uterus as the build-up of her uterus lining can become cancerous. The Applicant’s wife said that she has been advised that her medical conditions will only cease once she has had a hysterectomy. She indicated that she wished to have children before she had a hysterectomy. The Applicant’s wife also indicated that she was concerned that she would not receive appropriate medical treatment for her conditions in India.
Under cross-examination, the Applicant’s wife admitted that she had been unable to have her conditions treated successfully in Australia and described her current medical conditions as unstable.
The Applicant’s wife said that she returned from India in 2013 after her marriage and that the Applicant followed in June 2013. She said that when they returned to Australia they lived with her parents, brother and sister for about four years.
The Applicant’s wife indicated that she first heard of the allegations against her husband while they were visiting his cousin in Melbourne in April 2017. She said that she received a call from her brother, the father of the child victims. She said that her brother asked her if he could give the children’s mother her telephone number so that the children’s mother could speak with the Applicant. She indicated that the children’s mother called her number and that the children’s mother spoke with the Applicant on speakerphone so that she could hear their conversation. She said that the children’s mother was trying to get the Applicant to admit to her that he had inappropriately touched one of the children.
The Applicant’s wife indicated that she believed that the children were lying about being inappropriately touched by the Applicant. She indicated that the children were coerced into lying by their mother so that she could receive full custody of the children as well as full child support payments from their father.
The Applicant’s wife said that the children were her “flesh and blood”, her “babies” and that if the Applicant had been guilty of the offences she would end her relationship with the Applicant and be in favour of his removal from Australia. The Applicant’s wife indicated that if the Applicant had abused the children then she would be concerned for the safety of those children or other young children who were in the Applicant’s presence.
The Applicant’s wife indicated that the Applicant having been convicted of these offences had been completely devastating. She said that as she knew that the accusations were not true, the whole process had been draining. She said that she had recently started work at the time and was not able to concentrate at work. She said that she was afraid that she would lose her job. The Applicant’s wife indicated that financially she was at “rock bottom”. She said that since the Applicant had been imprisoned they had been forced to rent out their house to pay for the mortgage. She said that the rent fell short of covering the mortgage payments by about $400 a month. The Applicant’s wife indicated that she had been living with different family members since her husband was imprisoned. She said that she had to borrow a large amount of money from her family members for the Applicant’s legal defence and to pay bills. She said that this had put a strain on her relationship with her family members. She said that she was anxious all the time.
The Applicant’s wife said that if the Applicant had to return to India she would relocate to India to be with him. She indicated the thought of living in India was terrifying. The Applicant’s wife said that if the couple had to return to India, she did not know whether they would be able to repay her family members the large amount of money that they had borrowed from them. She said that they would have to sell their house. She said that she would not be able to communicate with anyone because she did not know an Indian language. The Applicant’s wife indicated that she would struggle with the culture in India and she would have no family support there, emotional or financial. She said that she did not know whether she would be able to find a job and may be homebound while the Applicant tried to find work. She said that she was concerned that her husband’s salary would not be sufficient to cover their expenses.
The Applicant’s wife indicated that if she had to relocate to India with the Applicant, she would be separated permanently from her family in Australia. She said that this would have a devastating effect on her and all of her family members in Australia. The Applicant’s wife said that whenever the issue arose, her mother would end up crying. She said that she knew that her father would be heartbroken.
The Applicant’s wife indicated that she was concerned that her health would deteriorate in India due to the pollution there. She expressed concern that she would not receive appropriate medical treatment for her various medical conditions.

The Applicant’s wife said that if the Applicant were allowed to remain in Australia, they would both keep working. She said that they had not made any firm plans as to what they would do if the Applicant was allowed to remain in Australia. She said that she was aware that the Applicant had been offered employment on her uncle’s farm. She said that the couple would keep working and try to pay off the debt that they owed, including to members of their family. She said that she hoped that they would be able to return to their own home in a year or two.
The Applicant’s wife indicated that if the Applicant was allowed to remain in Australia and decided to work on her uncle’s farm in Gympie, she would have to remain in Brisbane as she had employment here. She said that her time would be spent between Brisbane and Gympie. She said that if employment was available in Gympie, she may relocate to Gympie until the couple returned to living in their own home.
The Applicant’s wife indicated that she held diplomas in beauty therapy and travel and tourism. She said that she was currently employed in a beauty spa.
In a statement provided to the Tribunal shortly before the hearing, the Applicant’s wife stated:
“Prior to his imprisonment, [Applicant’s name redacted] was regularly in contact with a number of my family members who are young children of similar age to the alleged victims.
There would have been opportunities for [Applicant’s name redacted] to commit offences of a similar kind to the ones he is alleged to have committed against my brother [brother’s name redacted]’s two sons in relation to these other young family members. Despite this, none of these other children, or their parents, have ever expressed concern about [Applicant’s name redacted]’s conduct.
The parents of these children continue to express strong support for [Applicant’s name redacted] remaining in Australia.”
The Tribunal notes that both the Applicant’s mother-in-law and his brother-in-law have indicated that they have a cousin who has a daughter who is 10 or 11 and sons aged 8 and 6. The Tribunal also has a letter from a cousin of the Applicant’s mother-in-law who stated:
“Over the years [Applicant’s name redacted] has become a very valued member of our family and is like a second father figure to our 3 children. We trust him completely and he is certainly a man of integrity and honesty.”
The Tribunal considers that the Applicant’s wife, his mother-in-law and his brother-in-law are all referring to the same three children of the Applicant’s mother-in-law’s cousin.
The Tribunal notes that while the Applicant raised no such concerns, the Applicant’s wife indicated in a statement to the Department that she had found internet articles which raised concerns about the treatment of migrants and non-Hindus in India. She provided some internet articles to the Department. She indicated that she feared for her well-being and that of the Applicant if they were to return to India. The Applicant’s wife did not raise any of these concerns at the hearing.
The Applicant’s brother-in-law
The Applicant’s brother-in-law provided statements to the Department and appeared before the Tribunal to give evidence during the hearing.
The Tribunal notes that much of the evidence given at the hearing by the following witnesses, excluding the psychologist, focused on their belief that the Applicant had not committed any crimes. Much of the evidence was focused on why each of the witnesses believed that the Applicant had not committed the crimes for which he had been convicted. As the Tribunal cannot “go behind” the convictions, the Tribunal must accept that the Applicant is guilty of the crimes for which he was convicted and must accept the material facts upon which the convictions were based. The Tribunal will not record much of this evidence as the Tribunal is bound to accept that the Applicant is guilty of the offences for which he was convicted and the material facts which supported those convictions. This issue is discussed further below.
The Applicant’s brother-in-law indicated that at the time the Applicant was accused of the offences, there were disputes between he and his former wife over the custody of the child victims (their children). He indicated that in 2017, his former wife had asked him for permission to allow the boys to travel overseas. He asked in return for the children to spend every second fortnight and half of the school holidays with him. His former wife did not agree and soon after allegations were made by the children against the Applicant. The Applicant’s brother indicated that his former wife had signed court documents in January 2017 indicating that the children had not suffered any abuse. The Tribunal notes that this was before the children reported the indecent touching to their mother in April 2017.
The Applicant’s brother-in-law said he would be greatly affected if the Applicant had to return to India. He indicated that the Applicant and his sister had built a house here and that it would be very upsetting if they had to return to India and give up their dream of remaining in Australia. The Applicant’s brother-in-law also indicated that relocating to India would be difficult for his sister as she had never been overseas for a prolonged period and suffered from asthma. He said that he believed that she would suffer India due to India’s “climate”. The Applicant’s brother-in-law also indicated that his parents would be greatly affected as they were a very close family and none of them had spent much time apart from each other.
The Applicant’s brother-in-law said that he had not seen his children since April 2017, when one of the offences occurred. He said that he had maintained telephone contact with the boys until August 2018 when the Applicant was convicted of the offences. He said that he did not plan to have any further contact with the boys in the near future as he was afraid that they would concoct further lies against him or members of his family. He said that he did not plan to have any further contact with the boys until they reached adulthood and realised that it was wrong to falsely accuse others of sexual abuse.
When questioned by the Minister’s lawyer, the Applicant’s brother-in-law indicated that he had never had a conversation with the Applicant about the abuse alleged by his children. However later, when questioned by the Tribunal, the Applicant’s brother-in-law indicated that he had raised the allegations with the Applicant but told him that he did not believe the allegations. He said that he could not remember how the Applicant responded when he raised the allegations.
It was put to the Applicant’s brother-in-law that the Court Briefs indicated that in April 2017, detectives had spoken with him and that he had verified to them that he had a conversation with the Applicant and that the Applicant had told him that he had touched children but that he had been mucking around. The Applicant denied that he had told the police this. The Tribunal asked the Applicant’s brother-in-law whether, as he could not remember how the Applicant responded when he raised the allegations with him, it was possible that the Applicant told him that he had touched the children but that he had been mucking around. The Applicant’s brother said it was unlikely but possible.
The Applicant’s brother-in-law indicated that if the Applicant had in fact abused his children, he would report this to the police and would not let the Applicant anywhere near his children.
The Applicant’s brother-in-law indicated that there were other children in the family. He indicated that his cousin had three children, a girl aged 11 and two boys aged 6 and 8.
The Applicant’s mother-in-law
The Applicant’s mother-in-law provided statements to the Department and appeared before the Tribunal to give evidence during the hearing.
The Applicant’s mother-in-law indicated that the child victims (her grandchildren) would sometimes come to stay with them over the weekend.
The Applicant’s mother-in-law described the Applicant as a wonderful son-in-law who was respectful, loving and very helpful to members of the family. She said that the Applicant and his wife (her daughter) had lived with her for four years so that they could save money to buy a home. Like all of the Applicant’s other family members who gave evidence, she was of the firm belief that the Applicant did not commit the offences for which he was convicted.
The Applicant’s mother-in-law indicated that her family would be shattered and separated if the Applicant and her daughter had to return to India. She said that she and her other family members in Australia were very close to her daughter and that her daughter would suffer in India as she was not accustomed to the Indian way of life. She said that her daughter would find it very hard to cope with the language and customs in India. She indicated that her daughter suffered from asthma and she suffered a great deal from the pollution in India when she had gone there to be married in 2013. The Applicant’s mother-in-law said that she and her husband had recently travelled to India and had become sick while they were there. She said that she had great concerns for her daughter’s health if she were to relocate to India. She said that her home, family gatherings and parties would not be the same without her daughter and the Applicant present.
The Applicant’s mother-in-law indicated that she had no remaining family in India as they had all emigrated.
The Applicant’s mother-in-law indicated that she had never learned to speak Hindi or any other Indian language despite being born in India and having lived there until she was in her 20s. The Applicant’s mother-in-law indicated that her husband did not speak Hindi either. Despite this, the Applicant’s mother indicated that she had worked as a secretary in India and that her husband had worked in a textile department in India. The Applicant’s mother-in-law indicated that she had received educational qualifications in India and that she had studied in the English language to receive her qualifications. She said the fact that she only spoke English did not, in any way, prevent her from obtaining employment in India.
The Applicant’s mother-in-law indicated that she had a cousin with three children aged 10, 8 and 6. She indicated that the eldest child was a girl and the two others were boys. She indicated that those children had a “pretty good” relationship with the Applicant
The Applicant’s mother-in-law indicated that she knew that the allegations were untrue because she had been in the house around the children on every occasion the children were there. She contradicted this claim by indicating that she had been in Europe on holiday when the most recent offence was said to have occurred.
The Applicant’s wife’s uncle
The Applicant’s wife’s uncle provided a statement to the Department and appeared before the Tribunal to give evidence during the hearing. He had also written a letter to the Applicant which was provided to the Department, in which he offered the Applicant employment as a farm manager on his farm in Gympie.
The Applicant’s wife’s uncle indicated that he had been a Queensland police officer for some 27 years. He indicated that he had received commendations and good conduct medal is for his service. He indicated that he had come to know the Applicant quite well as he was the Applicant’s wife’s uncle and had spent time with the Applicant on social occasions, including playing cricket with the Applicant. The Applicant’s wife’s uncle described the Applicant as honest, reliable and hard-working. The Applicant’s wife’s uncle indicated that he did not believe that the Applicant committed the offences for which he was convicted.
The Applicant’s wife’s uncle appeared to suggest that the Applicant was misadvised by his barrister and that the police, the court and the “full legal system” may have conspired against the Applicant to ensure he was found guilty as a young girl in Logan had recently been killed and it was child safety week.
The Applicant’s wife’s uncle indicated that he returned to work after retirement as his farm was not profitable. He said that he offered the Applicant a job as farm manager on the farm so that there was someone he could trust on the farm to manage it while he was working in Brisbane. He indicated that the Applicant would have free accommodation and would be able to sustain himself on produce grown on the farm. He said that he would not be able to provide the Applicant any remuneration unless the farm became profitable, perhaps when the drought broke.
The Chaplain
The Chaplain provides pastoral care for employees of the business where the Applicant was employed. The Chaplain indicated that the Applicant had been referred to him by the business after the Applicant had been charged with his offences.
The Chaplain indicated that he would provide daily support and pastoral care to the Applicant prior to his conviction and that after his conviction he would visit the Applicant in prison once every two to three weeks. The Chaplain indicated that if the Applicant were allowed to remain in Australia, he would be open to providing whatever pastoral support that the Applicant and his family needed on an ongoing basis.
The Chaplain indicated that he believed the Applicant was innocent for the crimes for which he was convicted. The Chaplain indicated that his role was to provide pastoral care to people, regardless of whether they were guilty of offences. The Chaplain indicated that his role was not to rehabilitate people or to ensure that they did not reoffend.
The Applicant’s former workmate
The Applicant’s former workmate employed the Applicant in the team which he led. He described the Applicant’s performance in this role as “very satisfactory”. The Applicant’s former workmate indicated that he could relate to the Applicant because they had the same aspirations of owning a home, contributing to the community and entertaining socially. The Applicant’s former workmate was the only witness who indicated that his view of the Applicant’s character would not change even if the Applicant had in fact abused the children. The Applicant’s former workmate indicated that the Applicant did not have a current offer of employment with the company and that would it would be unlikely that he would be able to work for the company in the future. However, the Applicant’s former workmate indicated that this was not because the Applicant was a convicted child sex offender.
The Psychologist
The Applicant provided the Tribunal with a report prepared by a clinical psychologist (“the Psychologist”), regarding the Applicant’s mental health, required treatment and risk of reoffending. The Psychologist gave evidence at the hearing by telephone.
The report indicated that the Psychologist was of the view that the Applicant represented a “low risk of sexual reoffending”.
The Psychologist report concluded:
“It is difficult to formulate [Applicant’s name redacted]’s offending behaviour because (i) he denies the offending in its entirety, and (ii) there is scant detail in the Judge’s sentencing remarks regarding the actual offending behaviour. It seems likely that offences were facilitated largely by victim access and opportunity, given that the two victims were often in the household and, as their uncle, [Applicant’s name redacted] had a position of some trust with them. It is also possible that some type of sexual self-regulation difficulties (e.g. inability to manage sexual urges/thoughts; sex drive; lack of appropriate and health sexual outlet) contributed to feelings of sexual frustration that in turn led him to seek sexual gratification elsewhere. As stated, however, [Applicant’s name redacted] denies his offending and said that he plans to appeal, so this cannot be stated with a high level of certainty. It is noteworthy that the offending is similar in nature to the sexual abuse that he himself experienced as a child, which suggests that the abuse may have contributed to a mental script for such behaviour. Finally, the issue of sexual deviance (sexual arousal pattern towards children and/or adolescents) must be considered. Based on the limited information I have, it seems unlikely that [Applicant’s name redacted] has an entrenched pattern of sexual arousal towards children, given his capacity to sustain a primary intimate relationship, his lack of prior sexual difficulties, and the lack of previous sexual offences and/or allegations against him.
…
[Applicant’s name redacted] is assessed as a low risk of sexual reoffending on the basis of both static and dynamic risk factors. He exhibits very few risk factors known to be associated with increased risk of sexual recidivism. Encouragingly, he has a supportive and healthy marriage, and apparently supportive network of friends and family, and a good work history. His prospects of living a productive and offence-free life in the community would thus appear to be very good. The legal sanction has been most aversive to him and he carries considerable shame for his conviction. It should also be reiterated that denial is not, in of itself, a risk increasing factor.”
The Applicant had also provided the Department character references from a number of other friends, acquaintances and family members who did not give evidence before the Tribunal. The Tribunal has carefully considered all of the statements provided in support of the Applicant. The Tribunal notes that most of the statements do not refer to the Applicant’s offending and those that do appear to indicate that the author of the statement believes that the Applicant was innocent of any offending.
primary consideration A: Protection of the australian community from criminal or other serious conduct
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction provides that decision-makers should give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that 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, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;

The Applicant pleaded not guilty to all four charges for which he was convicted and has always maintained his innocence.
In HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 (“HZCP”), Bromberg J, after discussing the authorities relevant to whether the Tribunal may look behind or impugn the conviction or sentence (and in particular Secretary to the Department of Justice and Regulation v LLF[2018] VSCA 155 (“LLF”)), summarised the applicable principles as follows at [78]-[79]:
“(1) Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
(2) Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.
The second principle is not applicable here. The conviction in question in this case was a precondition to the decision under s 501(3A) of the Act and the exercise of the power by the Tribunal. The Applicant’s reliance on that principle as articulated at [43] in Ali is therefore misplaced. As Branson J made very clear at [43], that paragraph is only relevant to cases that fall within the second principle described above.”
In LQZW and Minister for Home Affairs (Migration) [2019] AATA 93 (“LQZW”), Deputy President Boyle, after referring to HZCP at stated at [92]:
“...The Tribunal has to accept that he did commit the sexual offences and the Tribunal’s assessment of the likelihood of the Applicant reoffending has to be made on that basis.”
The Applicant in HZCP lodged an appeal from the decision of Bromberg J. That appeal was recently dismissed by majority ruling of a plurality (McKerracher and Colvin JJ, Derrington J dissenting) of the Full Court of the Federal Court in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.
In the HZCP appeal, McKerracher J described as “apt” the reasoning of the Court of Appeal of the Supreme Court of Victoria in LLF which was adopted by Bromberg J at [78] and [79] at first instance. McKerracher J stated at [63]:
“Where the jurisdictional power is enlivened, the Tribunal cannot impugn or question the essential factual findings that underpinned the conviction or, where relevant, the sentence on which the power depends.
…
…a legally effective cancellation decision requires the Minister or a delegate to be satisfied that the non-citizen does not pass the character test by operation of, relevantly to this case, s 501(6)(a) and s 501(7)(c) of the Migration Act. It, therefore, required a properly formed state of satisfaction that the non-citizen had been sentenced to a term of imprisonment of 12 months or more. In this sense, the sentence lies at the heart of or is the foundation for the s 501(3A) mandatory cancellation provision, which is the precondition to any revocation decision under s 501CA: see s 501CA(1).”
His Honour went on to state at [68]:
“To permit under the rubric of “another reason”, evidence contrary to essential facts which must underlie this conclusion cannot have been the legislative intention. These provisions were introduced against a backdrop of some decades of recognition that at least where conviction or sentence was the foundation of the decision-maker’s power, any evidence going behind and contradicting the conviction or sentence would not be allowed.
…
One can challenge the lack of satisfaction or assert that the failure to be satisfied was based on legal or jurisdictional error. But where the foundation for the jurisdiction is predicated on satisfaction of a test which turns on the conviction or sentence, relying on evidence contrary to the essential conviction or sentencing facts would in itself be an error.”
Colvin J came to the same conclusion on this issue. His Honour stated at [194] – [195]:
“The decision‑maker considering whether there is 'another reason' under s 501CA(4)(b)(ii) must accept that the person has been convicted or sentenced in a manner that means they do not pass the character test. They are not authorised to go behind that aspect. It is not 'another reason' if the reason is to refute the first limb. Such an approach would undermine the first limb and allow a person to claim that the visa cancellation should be revoked because the factual matters that necessarily underpin the conviction or sentence are not true. The other reason would become no more than a challenge to the approach to the subject matter of first limb that the legislature requires the decision‑maker to adopt.
In short, a person who makes representations to revoke the cancellation of a visa cannot advance a factual position that undermines the relevant convictions and sentences as 'another reason' why the original decision to cancel should be revoked.”
As in the HZCP cases and LQZW, the convictions and sentences imposed in question in this case were a precondition to the decision under section 501(3A) of the Act and are preconditions to the Applicant failing the character test for the purposes of section 501CA(4) of the Act. In the present case, as in LQZW, the Tribunal has to proceed on the basis that the Applicant did commit the offences for which he was convicted and the Tribunal’s assessment of the likelihood of the Applicant reoffending has to be made on that basis.
The nature of the Applicant’s conduct and offending has been described above. The sentencing judge also made the following remarks relevant to the seriousness and nature of the offending:
“The two children were [redacted in original]. They were [redacted in original]. The offending - it’s not entirely clear of what period if [sic] occurred but possibly as many as three years. Count 1 was uncertain as to its timing. There were three events. Each involved you in some way or another either on the outside of clothing in respect of [redacted in original] or on skin on skin contact in respect of [redacted in original], touching each of those two children, [redacted in original] on the penis.
In that context, of course, the offending is serious. The prosecutor’s outlined a range of factors which aggravate your offending: the young age of the complainant’s - they were [redacted in original] - there were two of them; there were three incidents; you were in a position of trust as [redacted in original]; there was a power imbalance; it was brazen offending; the matter’s gone to trial, by definition no remorse; both children have had to give evidence as have their mother and step-father as well as your wife and, of course, the community has a keen and appropriate interest in denouncing child sex offending. The issues of general deterrence and enunciation loom large. On the other hand, you have no criminal history. You’ve come to Australia from India and married [Applicant’s wife’s name redacted].”
The Applicant indecently touched the seven-year-old and nine-year-old sons of his brother-in-law when they visited the house in which the Applicant was residing. He touched the “private parts” of the seven-year-old child through his clothes by squeezing them. On another occasion the Applicant touched the “private parts” of the seven-year-old child through his clothes by tapping them.
The Applicant entered the bathroom while the nine-year-old was taking a shower and touched him on the penis by squeezing it. The child told the Applicant to stop and pulled away. A short time later when the nine-year-old was drying himself and about to get dressed, the Applicant again entered the bathroom and touched the nine-year-old on the “private parts”.
The Applicant’s conduct constituted sexual crimes against two male children, which is considered to be very serious under the Direction.
For the purposes of these proceedings, the Tribunal is willing to treat the Applicant’s offending as non-violent.
The Applicant’s conduct was committed against two vulnerable young boys who were entitled to trust the Applicant as an adult family member. Crimes committed against vulnerable members of the community are considered to be serious under the Direction.
The Applicant received a substantial sentence of 18 months imprisonment which the Tribunal considers is indicative of the seriousness of his offending. In imposing the sentence, the sentencing judge took into account the likelihood that the Applicant’s visa would be cancelled as a result of the sentence imposed.
The Tribunal accepts the Applicant’s submission that, while his conduct was serious, it was at the lower end of the spectrum of seriousness for conduct which can give rise to a conviction for indecent treatment of children. The Applicant was sentenced to 18 months imprisonment to be suspended for two years after serving six months imprisonment. The Tribunal notes that the maximum sentence which can be imposed for indecent treatment of children under the age of 12 is 20 years imprisonment.
The Applicant touched the boys four times on three occasions (a total of four times). The Applicant’s conduct appears to have been similar on each occasion and does not tend to suggest a trend of increasing seriousness.
The sentencing judge indicated that the Applicant’s offending was “serious”. The Applicant conceded that the conduct that he has been convicted of “namely sexual offences involving prepubescent children, are extremely serious.”
It does not appear that the Applicant has provided false or misleading information to the Department such as to justify any significant increase in an assessment of the seriousness of the offending or its nature. Of course, the Tribunal is aware that the Applicant has always maintained his innocence despite being convicted on all four counts for which he was charged. The Tribunal has placed no weight on the Applicant’s maintenance of innocence in the determination of the seriousness of the Applicant’s conduct.
Paragraphs 13.1.1(1)(h) and (i) of the Direction are not relevant in this case.
The Tribunal is of the view that the Applicant’s offending conduct is very serious. The nature of the offending was the Applicant, who was in a position of trust in relation to the victims, touched their genitals four times.
After careful consideration, including consideration of the matters listed in paragraph 13.1.1(1) of the Direction, the Tribunal considers that the Applicant’s offences and conduct are very serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Subparagraph 13.1.2 of the Direction provides that in considering the risk to the Australian community presented by an Applicant, the Tribunal must have regard to the two sub-considerations listed in paragraph 13.1.2(1) of the Direction cumulatively. They are:
(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 available information and evidence on the risk of the non-citizen reoffending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
In many cases the harm to the Australian community or members of the Australian community should an applicant reoffend in a similar manner will be obvious. This is especially so if an applicant has previously committed violent or sexual offences.
The Applicant submitted and maintained that he had never committed the offences for which he was convicted and had never committed any offences against children. He said he could not and would not ever commit sexual offences against children.
It is not for the Tribunal to determine the innocence or guilt of the Applicant for the offences. That task has been undertaken by the criminal justice system. The Applicant was found guilty by verdict of a jury. The Tribunal must proceed on the basis that the Applicant is guilty of all four offences in the way alleged against him. That is, the Tribunal must accept that the facts alleged against the Applicant constituting the offences have been made out.
In his written contentions, the Applicant accepted that offences of the kind that he had been convicted of “have the capacity to cause significant emotional and psychological hardship over the course of a child’s development and into adulthood”.
The Tribunal accepts the Applicant’s concession that offences of the kind that he has been convicted of have the capacity to cause significant emotional and psychological hardship over the course of a child’s development and into adulthood.
The Tribunal finds that, if the Applicant were to re-engage in similar criminal conduct, it is likely that nature of the harm to victims would be that they would suffer from appalling sexual crime. It would be likely that the victims would be young children. The effects of that kind of offending could cause significant emotional and psychological hardship to child victims and potential physical injury.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Psychologist was of the view that the Applicant represented a “low risk of sexual reoffending”.
The Psychologist report concluded:
“It is difficult to formulate [Applicant’s name redacted]’s offending behaviour because (i) he denies the offending in its entirety, and (ii) there is scant detail in the Judge’s sentencing remarks regarding the actual offending behaviour. It seems likely that offences were facilitated largely by victim access and opportunity, given that the two victims were often in the household and, as there uncle, [Applicant’s name redacted] had a position of some trust with them. It is also possible that some type of sexual self regulation difficulties (e.g. inability to manage sexual urges/thoughts; sex drive; lack of appropriate and health sexual outlet) contributed to feelings of sexual frustration that in turn led him to seek sexual gratification elsewhere. As stated, however, [Applicant’s name redacted] denies his offending and said that he plans to appeal, so this cannot be stated with a high level of certainty. It is noteworthy that the offending is similar in nature to the sexual abuse that he himself experienced as a child, which suggests that the abuse may have contributed to a mental script for such behaviour. Finally, the issue of sexual deviance (sexual arousal pattern towards children and/or adolescents) must be considered. Based on the limited information I have, it seems unlikely that [Applicant’s name redacted] has an entrenched pattern of sexual arousal towards children, given his capacity to sustain a primary intimate relationship, his lack of prior sexual difficulties, and the lack of previous sexual offences and/or allegations against him.
…
[Applicant’s name redacted] is assessed as a low risk of sexual reoffending on the basis of both static and dynamic risk factors. He exhibits very few risk factors known to be associated with increased risk of sexual recidivism. Encouragingly, he has a supportive and healthy marriage, and apparently supportive network of friends and family, and a good work history. His prospects of living a productive and offence free life in the community would thus appear to be very good. The legal sanction has been most aversive to him and he carries considerable shame for his conviction. It should also be reiterated that denial is not, in of itself, a risk increasing factor.”
The Tribunal heard evidence from the Applicant’s wife, his mother-in-law, his brother-in-law, his wife’s uncle, a chaplain and a former workmate who all attested to the Applicant’s good character and all believed that the Applicant is innocent of the crimes for which he had been convicted.
The Tribunal has considered a number of matters which would contribute towards a finding that the Applicant’s risk of reoffending is low including that the Applicant was released on bail for over a year prior to being sentenced, that he did not offend during his release on bail, that he has no history of criminal behaviour prior to his offending in 2017, that he has good prospects of employment, a supportive family, and that the Applicant has been counselled by a chaplain since his arrest in 2017.
The Tribunal has also taken into account the various statements in support of the Applicant attesting to his good character, although places limited weight on the statements to the extent they go to the Applicant’s risk of reoffending given that the statements either do not indicate that the author is aware of the Applicant’s offending or indicate the belief that the Applicant did not commit the crimes for which he was convicted.
In his written contentions under the heading “Risk of conduct being repeated” the Minister argued:
“The Minister submits that there is a real risk of the Applicant reoffending. The Applicant continues to protest his innocence, so clearly shows no remorse for the actions for which he was convicted. ...”
The Minister’s delegate also took the approach that the fact that the Applicant had maintained his innocence meant that he had not shown any remorse and had “absolved himself of any responsibility for his offending”. This was a central reason for the delegate reaching the conclusion that they were not confident there would be no further offending.
The Tribunal is somewhat reluctant to place any weight on the fact that the Applicant has maintained his innocence as a factor which increases the Applicant’s risk of reoffending.
The maintenance of innocence by a convicted offender can mean a number of things. The Tribunal recognises that the maintenance of innocence by an applicant/offender could indicate they are not remorseful or contrite in relation to their offending. That in turn could mean that an applicant’s mental state has not altered from the time when he or she offended and that lack of rehabilitation could point to a heightened risk that the applicant could reoffend. However, the Tribunal notes that undertaking the above reasoning processes relies on the Tribunal drawing inferences or making assumptions which will advance the reasoning process from an applicant asserting his or her innocence to the ultimate step of finding that this has significance in the assessment of an applicant’s risk of reoffending. Even if the Tribunal were to find that an applicant knows that he or she offended but expresses that he or she did not, the Tribunal is reluctant to find that this has any significant bearing on an applicant’s risk of reoffending, absent any expert psychological evidence to support that line of reasoning. Indeed, the only expert evidence before the Tribunal, that of the psychologist, was that a denial of one’s offending has not been shown to predict recidivism and is not, in and of itself, a risk increasing factor.
Additionally, there may be any given number of reasons why an applicant asserts their innocence notwithstanding that they have been found guilty of offences. It may be that an applicant cannot remember that they offended. It may be that an applicant has suppressed the memories of the offending. It may even be the case that the applicant did not in fact commit the offences notwithstanding that they have been found guilty of the offences. Although I acknowledge the logical possibility that this may be the case, that acknowledgement does not in any way detract from my acceptance that I must proceed on the basis that an Applicant is guilty of the offences for which he or she has been convicted. My acknowledgement that there may be various reasons why an applicant asserts their innocence despite having been convicted of offences is for the purposes of illustrating that in some cases it may be of limited utility or propriety to rely on an assertion of innocence as determinative that an applicant is lying or that the maintenance of innocence heightens the risk that an applicant will reoffend. That is especially so in a case like the present where the expert evidence is actually to the contrary.

While the Tribunal is reluctant to place any weight on the Applicant’s assertion that he is not guilty of the crimes for which he was convicted as having a bearing on the risk that the Applicant will reoffend, the Tribunal has taken into account that the Applicant has not undertaken any rehabilitation courses in relation to his offending. This is a matter that weighs against the Applicant in the determination of the risk that he will reoffend.
After considering the above matters, the Tribunal is willing to accept the only evidence from a psychologist which is before the Tribunal; the Psychologist’s expert view that the Applicant presents a low risk of reoffending.
However, the Tribunal remains concerned that the Applicant’s low-risk of reoffending is a real one. The Tribunal notes that it is not apparent from the Psychologist’s report that the Psychologist was aware that the Applicant’s wife’s cousin has three young children aged 10, eight and six with whom the Applicant is close and who often visit the Applicant’s in-law’s home where he used to reside. This is concerning because the Psychologist stated:
“It seems likely that offences were facilitated largely by victim access and opportunity, given that the two victims were often in the household and, as their uncle, [Applicant’s name redacted] had a position of some trust with them.”
While the Applicant has indicated that, if he is able to remain in Australia, he intends to live and work in Gympie on his wife’s uncle’s farm, the Tribunal is not convinced that this is necessarily the case. That is because the Applicant also indicated in his evidence that if he is allowed to remain in Australia, he intends to work to support his family and to pay back the debt he owes to family members. The Applicant’s uncle indicated that the Applicant would not be remunerated for his work on the farm unless the drought broke and the farm became profitable. The Tribunal considers that there is a good possibility that if the Applicant were allowed to remain in Australia, he and his wife would reside with his wife’s parents to save money to repay their debts and so his wife could continue to work at her current place of employment in Brisbane. If the Applicant continues to live with his parents-in-law, it appears that he will come into regular contact with his wife’s cousin’s children. The fact that the wife’s cousin has indicated that they trust the Applicant exacerbates the risk to their children.
Even if the Applicant were to reside in Gympie, as the farm in Gympie belongs to the first cousin of the children’s parent (the Applicant’s wife’s uncle), there remains a possibility that the children will come into contact with the Applicant either on the farm or when the Applicant visits family members in Brisbane.
Thus, while the Tribunal accepts that there is a low risk that the Applicant will commit further sexual offences, the Tribunal considers that this is still a real risk.
Conclusion: Primary Consideration A
The Tribunal has found that the Applicant’s offending conduct was very serious and the nature of the conduct was that he indecently touched the genitals of his brother-in-law’s two children when he was in a position of trust in relation to them.
The Tribunal finds that, if the Applicant were to re-engage in similar criminal conduct, it is likely that nature of the harm to victims would be that they would suffer from an appalling sexual crime. It would be likely that the victims would be young children. The effects of that kind of offending could cause significant emotional and psychological hardship to child victims and potential physical injury.
The Tribunal has found there is a “low” likelihood of the Applicant engaging in further criminal or other serious conduct.
After giving thoughtful and thorough consideration to this primary consideration, the Tribunal concludes that the primary consideration of protection of the Australian community weighs against the revocation of the cancellation of the Applicant’s visa. While the Tribunal considers that there is a “low” likelihood the Applicant will reoffend, the Tribunal does not consider this risk as insignificant. If the Applicant repeats his serious offending, it will likely result in harm to Australian children. In this case, considering: the seriousness of the conduct; the potential harm to Australian children were the Applicant to reoffend; and the “low” risk of reoffending, the Tribunal considers that the protection of the Australian community and its members are best served by the Applicant no longer being present in Australia.
The Tribunal attributes significant weight against revocation of the cancellation of the Applicant’s visa to the primary consideration of the protection of the Australian community.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is, or is not, in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
As her Honour Perry J noted in FYBR v Minister for Home Affairs[2019] FCA 500, at [38] the primary consideration of the best interests of minor children “... may, and in general will, weigh against refusal of a visa in the final balance (as the Full Court explained in Nigam v Minister for Immigration and Border Protection [2017] FCAFC 127 at [44]).” The Tribunal considers that, as a general proposition, this applies equally to decisions to refuse to revoke cancellation under section 501CA of the Act. That is, in most cases, the best interests of minor children primary consideration may, and in general will, weigh against non-revocation of a cancellation decision. This is because in most cases where a person has a visa application refused or a visa cancelled under section 501 of the Act, and the interests of minor children are relevant, it will be because the person who was refused a visa, or whose visa was cancelled, will have relationships with children, often their own, which may be disrupted by the refusal of the visa application or the cancellation of the person’s visa.
Indeed, the factors listed in paragraph 13.2(4) of the Direction appear to be primarily directed to situations where Applicants have pre-existing relationships, including parental relationships, with children.
Paragraph 8(3) of the Direction provides:
“Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.”
Paragraph 13.2(1) of the Direction provides:
“Decision-makers must make a determination about whether revocation is, in the best interests of the child.”
While the Tribunal accepts that in most cases, the best interests of minor children primary consideration may, and in general will weigh against non-revocation of a cancellation decision and in most cases the adverse impact on children will arise from the refusal or cancellation of an Applicant’s visa, the Tribunal considers that in a case like the present one, the best interests of any children who have been identified as potential victims of an Applicant must be taken into account.
In this case, the Tribunal has identified that the three children of the Applicant’s wife’s cousin could potentially be the victims of future offending by the Applicant. The Tribunal has also considered the best interests of the child victims.
Paragraph 13.2(4)(c) of the Direction which provides:
“The impact of the non-citizens prior conduct, and any likely future conduct, and whether that conduct has or will have a negative impact on the child;”
The Tribunal considers that the Applicant is unlikely to have any further contact with his brother-in-law’s children. However, as the Tribunal must make a determination as to whether revocation is in the best interests of each child, the Tribunal considers that it is in the best interests of each child victim that the cancellation of the Applicant’s visa not be revoked. The Tribunal considers that this will ensure that neither child is ever indecently touched by the Applicant again. The Tribunal has considered that the Applicant’s wife’s family members may blame the children if the Applicant is removed from Australia and that this may damage their relationships with those family members. However, at present none of the Applicant’s wife’s family members have any contact with the children and their father and grandmother have indicated that they will not have contact with the children until they are adults. The Tribunal considers that it is in the best interests of the two child victims that the Tribunal affirms the non-revocation decision. However, as the children are unlikely to have any further contact with the Applicant, the Tribunal has placed very limited weight on the best interests of the child victims.
In the present case, while the Tribunal has found that the Applicant presents a low risk of reoffending, the Tribunal nevertheless has found that the risk is a real one. The Tribunal has found that, if the Applicant were allowed to remain in Australia, he may continue to have contact with the three children of his wife’s cousin. They are approximately the same age of the Applicant’s victims when the Applicant indecently assaulted them.
The Tribunal has considered the evidence before it that the Applicant is close to his wife’s cousin’s children. The Tribunal accepts that each of those children may be upset if the Applicant is removed from Australia. However, the Tribunal considers that this is significantly outweighed by the risk, however low, that the Applicant will offend against these children.
Conclusion: Primary Consideration B
The Tribunal considers that it is in the best interests of each of three children of the wife’s cousin that the Applicant not be allowed to continue to reside in Australia. This is because he presents a real risk to their well-being, however low, as they appear to be the most likely victims of any future offending by the Applicant. The Tribunal considers that it is in the best interests of the two child victims that the Tribunal affirms the non-revocation decision. However, as the children are unlikely to have any further contact with the Applicant, the Tribunal has placed very limited weight on the best interests of the child victims.
The Tribunal finds that it is in the best interests of each of the children for the Tribunal not to revoke the cancellation of the Applicant’s visa.
The Tribunal finds that the best interests of the children weigh moderately against revocation of the cancellation of the Applicant’s visa.
The Tribunal attributes moderate weight to the primary consideration of the best interests of minor children in Australia.
primary Consideration C: The expectations of the Australian Community
Paragraph 13.3(1) of the Direction states:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.”
How are those expectations determined?
The decisions of Uelese v Minister for Immigration and Border Protection[2016] FCA 348; Afu v Minister for Home Affairs[2018] FCA 1311; YNQY v Minister for Immigration and Border Protection[2017] FCA 1466 and FYBR v Minister for Home Affairs[2019] FCA 500 establish that:
·the concept of community expectations is not a matter to be measured as though it is a provable fact. It is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is an assessment of community values made on behalf of that community;
·it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations; and
·the Government’s views in relation to community expectations are to be found in the Direction itself. It is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community, as it has in the Direction, and for the Tribunal to Act on that statement.
These principles were confirmed very recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction, including the principles in paragraph 6.3(5) and paragraph 6.3(7) of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
In the present case, the Applicant failed to meet the expectation of the Australian community to abide by the law. This expectation was breached by the Applicant’s appalling unlawful behaviour against two young boys in respect of whom he was in a position of trust. The Tribunal considers that the Australian community expects the Australian Government to cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere. In the present matter, the Government has acted in accordance with that expectation as was required by section 501(3A) of the Act.
The Tribunal considers that the Applicant’s offences were very serious and the Direction provides that the Australian community considers that non-citizens who commit serious crimes should generally expect to forfeit the privilege of staying in Australia.
Against the expectations of the Australian community in relation to its protection, the Tribunal considers that some weight should be placed, in the Applicant’s favour, on the negative consequences of non-revocation on the Applicant’s family members in Australia, in particular his wife.
Conclusion: Primary Consideration C
Given the serious nature of the Applicant’s offending and notwithstanding the negative effects on the Applicant’s family members in Australia if the cancellation of his visa is not revoked, the Tribunal finds that the consideration of expectations of the Australian community weighs against the revocation of the cancellation of the Applicant’s visa.
The Tribunal places significant weight on this consideration in favour of non-revocation of the cancellation of the Applicant’s visa.
other considerations
Paragraph 14 of the Direction provides for other considerations. They include but are not limited to:
(a)International non-refoulement obligations;
(b)strength, nature and duration of ties
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
(a) International non-refoulement obligations and risk of harm to the Applicant
As mentioned above, while the Applicant raised no such concerns, the Applicant’s wife indicated in one of her statements to the Department that she had found internet articles which raised concerns about the treatment of migrants and non-Hindus in India. She provided some of the internet articles to the Department. She indicated that she feared for her well-being and that of the Applicant if they were to return to India. The Applicant’s wife did not raise any of there concerns at the hearing.
In Omar v Minister for Home Affairs [2019] FCA 279 Mortimer J stated:
“…if the person makes representations that she or he is a person to whom Australia has non-refoulement obligations, and sets out a serious and substantive basis in fact and in law for that representation, part of the statutory task involves consideration of that representation, just as it does any other serious and substantive representation advanced by that person.”
The Minister appealed from the decision of Mortimer J in Minister for Home Affairs v Omar[2019] FCAFC 188. The Full Court of the Federal Court stated at [66]:
“In determining whether or not there is “another reason” why the visa cancellation decision should be revoked for the purposes of s 501CA(4)(b)(ii), while the Minister has a degree of “decisional freedom” as to what constitutes such a reason, he or she must consider whether a particular representation made by the affected person, which is clearly expressed and is significant, that they may suffer harm if returned to the country of origin constitutes “another reason” (see BCR16 at [70]-[73] per Bromberg and Mortimer JJ).”
The Tribunal considers that that the Applicant has not made representations that he is a person in respect of whom Australia has non-refoulement obligations and has not set out a serious and substantive basis in fact and in law for any such representation.
In addition, the Tribunal considers that the Applicant has not made any representation that he may suffer harm if he returns to India.
To the extent that the Applicant’s wife is claiming that she fears harm, even if there was a real chance that she would face serious harm in India, a decision not to revoke cancellation of the Applicant’s visa will not result in a breach of Australia’s non-refoulement obligations in respect of his wife because she is an Australian citizen who has a right to remain in Australia and there is no risk that the Applicant’s wife will be removed to India. If the Applicant’s wife wishes to relocate to India, that is a matter for her.
In these circumstances, the consideration of Australia’s international non-refoulement obligations, and the consideration of any harm that the Applicant may face if returned to India, do not weigh in the Applicant’s favour in this matter. They are neutral considerations.
Potential hardship/harm to the Applicant and his wife are considered further below.
(b) Strength, nature and duration of ties
Paragraph 14.2 of the Direction provides:
(1) Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the noncitizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of cancellation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant first arrived in Australia as a resident in June 2013. He was 28 years of age at the time. He has lived in Australia ever since. The Applicant became a permanent resident on 17 February 2015 when he was granted a Class BC Subclass 100 Partner visa. His offending (based on the sentencing remarks) began in 2015 at the earliest and in 2016 at the latest, two or three years after arriving as a resident.

The Applicant has made a positive contribution to the community through hard work in stable employment. He has built a house here. He has been supportive of his wife’s family and lived with his wife, her parents, sister and brother for some years prior to being imprisoned. He has assisted with the care and transport of his wife’s grandparents including by taking them to church on Sundays. The Tribunal accepts that the Applicant has an extensive social group in Australia who remain supportive of his efforts to remain here. He has been involved in various sporting and religious activities.
The Tribunal accepts that if the Applicant is required to return to India, his wife will relocate to India to be with him. The Tribunal accepts that this will have a significant adverse effect both on the Applicant’s wife and on her family members who will remain in Australia. The hardship to the Applicant’s wife is considered further below.
The Tribunal accepts that the Applicant has strong family ties to Australia, most notably to his wife. The Applicant also has a number of extended family members, friends and acquaintances in Australia. The Tribunal has considered the impact of a decision not to revoke the cancellation of the Applicant’s visa on his family members in Australia.
The Tribunal has taken into account the wishes of the Applicant’s family members in Australia, including his wife and members of his wife’s family, that the Applicant be allowed to remain in Australia. The Tribunal accepts that all of the Applicant’s family members in Australia, and especially his wife and her immediate family members would be significantly adversely affected if the Applicant were not allowed to remain in Australia. The Tribunal accepts that if the Applicant is removed from Australia, it will be very difficult for him to repay the debt that he owes to family members in Australia.
The Tribunal accepts that if the Applicant is removed from Australia, he and his wife will have to sell their house and will be deprived of the use and benefit of their land.
The Tribunal finds that this consideration weighs in favour of the revocation of the decision to cancel Applicant’s visa. The Tribunal places significant weight on this consideration in the Applicant’s favour.
(c) Impact on Australian business interests
Neither party has argued that this consideration is relevant in the current matter. In these circumstances the Tribunal places no weight on this consideration.
(d) Impact on victims
Paragraph 14.4 of the Direction provides:
“Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.”
There is no direct evidence of the impact of a decision not to revoke on members of the Australian community including the victims of the Applicant’s behaviour and their family members. In these circumstances, the Tribunal considers that the prudent course in the absence of direct evidence of the impact of a non-revocation decision is to place no weight on this consideration. In these circumstances the Tribunal places no weight on this consideration.
(e) Extent of impediments if removed
Paragraph 14.5 of the Direction provides:
(1) Theextent 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 a man of 34 years of age. There is no evidence that the Applicant suffers from any significant medical condition. It does not appear that there are any language or cultural barriers which would act as impediments to the Applicant establishing himself in

India. As a citizen of India, the Applicant will be entitled to any social, medical and economic support available to Indian citizens in India.
The Applicant was born and raised in India. His parents and grandmother live there. He worked in India for almost 10 years prior to arriving in Australia. He has said that he has a number of friends in India with whom he has maintained contact. He last visited India for about two weeks in May 2016.
The Applicant has always been gainfully employed in India including in management positions. The Applicant has also been consistently employed in Australia where he was considered a hard worker and a good employee. The Applicant has also attained some work-related qualifications.
The Tribunal finds that the Applicant is well-placed to re-establish himself in India, including by finding employment. The Tribunal does not accept that he will find it difficult to find employment. Indeed, at the hearing the Applicant stated:
“If I was to go back to India, look, I’ve lived in India before for 25 or 27 years of my life, I can go back and I can do something with my life.”
As the Tribunal has found that the Applicant will have no problems supporting himself and his wife in India, the Tribunal does not accept that the Applicant will suffer significant financial difficulty or that he will have no place to stay there.
The Tribunal accepts that the Applicant will be upset that he is not able to remain in Australia. The Tribunal accepts that the Applicant may be upset and distressed that his removal from Australia will result in his wife having to reside with him in India, especially in circumstances where the Tribunal accepts that life in India may be very difficult for the Applicant’s wife.
The Tribunal finds that this consideration weighs in favour of revocation of the decision to cancel the Applicant’s visa. The Tribunal attributes moderate weight to this consideration in the Applicant’s favour.
Hardship to the Applicant and his wife
The Tribunal has also considered the effect of non-revocation on the Applicant in addition to impediments to re-establishing himself in India. The Tribunal considers that the non-revocation of the cancellation of the Applicant’s visa would have a significant negative effect on the Applicant. In all likelihood, the Applicant will never be able to return to Australia, the homeland of his wife, where almost all of her family are located. The Tribunal accepts that the Applicant has worked very hard in Australia to build a better life for him and his wife including by building a house here. The Tribunal accepts that the Applicant will be worried about his wife’s well-being in India.
In a statement to the Department, the Applicant indicated that he would be an outcast in India because of the nature of the crimes against children for which he had been convicted. This claim was not repeated at the hearing and without further evidence, the Tribunal does not accept that people in India would become aware of the Applicant’s offending.
The Tribunal has considered the effect of a non-revocation decision on the Applicant’s wife. The Tribunal considers that the Applicant’s wife will be significantly and adversely affected if the Applicant were removed from Australia.
The Tribunal accepts that if the Applicant is removed from Australia, his wife will relocate to India to be with him. The Tribunal accepts that the Applicant’s wife is terrified at the prospect of having to live in India.
The Tribunal is willing to accept that the Applicant and his wife are likely to be less financially well off than they have been in Australia. The Tribunal accepts that if the couple relocate to India, it will be difficult for them to be able to repay the Applicant’s wife’s family members the large amount of money that was borrowed from them. The Tribunal accepts that the Applicant and his wife will have to sell their property if they relocate to India. The Tribunal accepts that the Applicant’s wife may have some difficulties in communicating with others in India as she does not know an Indian language.
The Tribunal accepts that the Applicant’s wife may have some difficulties initially in gaining employment. However, the Tribunal notes that a lack of Indian language skills did not prevent either of the Applicant’s parents or the Applicant’s wife’s parents from being gainfully employed in India or communicating with others in India. In addition, the Applicant’s wife holds diplomas in beauty therapy and, travel and tourism and has some work experience in Australia. These things should assist the Applicant’s wife in securing employment in India.
The Tribunal accepts that the Applicant’s wife will initially struggle with Indian culture and traditions.
The Tribunal accepts that the Applicant’s wife will be separated from her family members in Australia if she was to relocate to India and this would cause her great distress. The Tribunal also accepts that the Applicant’s wife will be upset at the distress caused to her family members in Australia from their separation.
The Tribunal accepts that the pollution levels in India may exacerbate the Applicant’s wife’s asthma. The Tribunal also accepts that the Applicant’s wife is unlikely to receive medical treatment to stabilise her PCOS endometrial hyperplasia and dysfunctional uterine bleeding. However, the Tribunal notes that the Applicant’s wife has been unable to have those conditions stabilised in Australia. Indeed, the Applicant’s wife’s evidence is that those conditions will remain until she has a hysterectomy. Without further evidence, the Tribunal is unwilling to find that the Applicant’s wife will be unable to receive adequate medical care in India. The Tribunal also notes that, finances allowing, the Applicant’s wife will be able to travel to Australia if she has any serious medical complications.
The Tribunal does not accept that there is a real chance that either the Applicant or his wife will suffer physical harm if they relocate to India. The Applicant’s wife provided a statement to the Department in which she claimed to be concerned that she may be harmed as a migrant and a Roman Catholic and that she may be placed in a detention centre in India. There is no evidence before the Tribunal that the Applicant’s wife is a citizen of India, although she may be entitled to citizenship given that both of her parents were Indian citizens who were born in India. The Applicant’s wife may have to be granted permission by the Indian government to enter and reside in India. It is difficult to see why the Applicant’s wife would be detained in a detention centre in India if she has permission to reside there.
The internet articles provided by the Applicant’s wife indicate that there have been attacks on minority groups including Christians in India. One of the articles indicates that Indian authorities have arrested people suspected of being responsible for one of these attacks.
The article that the Applicant provided in relation to the detention of migrants appears to relate to migrants who the government of India consider to be residing in India unlawfully. There is no indication in any of the articles that India is detaining Australian citizens residing lawfully in India.
Without further information, the Tribunal is unwilling to find that the Applicant or his wife are at risk of being physically harmed owing to their Christian faith or that the Applicant’s wife will be a migrant. The Tribunal notes that the Applicant himself has British heritage, has parents who only spoke English and has always been a Christian. The Applicant has never stated that he, nor any of his family members, were ever harmed in India owing to their Christian faith or English Heritage.
The Tribunal notes that, strictly speaking, a non-revocation decision does not mandate that the Applicant’s wife will have to relocate to India and face the hardship to her that this will entail. As an Australian citizen, the Applicant’s wife has an inalienable right to remain in Australia and to enter Australia. Whether she decides to relocate to India with all the hardship that this relocation may entail, is ultimately her decision. However, as mentioned above, the Tribunal accepts that the Applicant’s wife has decided that she will relocate to India if the Applicant must return there. That is her choice.
The Tribunal finds that this consideration weighs in favour of revocation of the decision to cancel the Applicant’s visa. The Tribunal attributes significant weight to this consideration in the Applicant’s favour.
Conclusion: Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
The Tribunal has found that the primary consideration of the protection of the Australian community weighs significantly against revocation of visa cancellation. Similarly, the Tribunal has found that the primary consideration of the expectations of the Australian community weighs significantly against revocation of visa cancellation. The Tribunal has found that the Applicant’s offences were very serious and that there would be harm to Australian children if they were repeated. The Tribunal has also found that the primary consideration of the expectations of the Australian community weighs significantly against revoking cancellation of the Applicant’s visa, notwithstanding the hardship to family members that non-revocation would cause and the period of time that the Applicant has spent contributing positively to the Australian community.
The Tribunal has found that the primary consideration of the best interests of minor children, in this case, each of the three young children of the Applicant’s wife’s cousin, and to a much lesser extent, the child victims, weighs moderately against revocation of the cancellation decision.
On the other hand, the Tribunal has found that the consideration of the strength, nature and duration of ties of the Applicant to Australia weighs in favour of revocation of the cancellation decision and attributed significant weight to this consideration. The Tribunal has found that the consideration of the extent of impediments if removed weighs in favour of revocation of the cancellation decision and attributed moderate weight to this consideration. Finally, the Tribunal has found that the Applicant and his wife will be significantly adversely affected and will suffer hardship if the cancellation decision is not revoked. The Tribunal has attributed significant weight to this consideration.
After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 6.3 of the Direction, I have decided that the primary considerations of the protection of the Australian community, the expectations of the Australian community and the best interests of children outweigh all other considerations in the Applicant’s favour.
The Tribunal has found that the Applicant does not pass the character test and that there is not another reason why the cancellation decision should be revoked.
Therefore, the Tribunal finds that the Minister’s delegate’s decision, to refuse to revoke the decision to cancel the Applicant’s visa, is the correct decision.
DECISION
The decision under review is affirmed.

I certify that the preceding 235 (two hundred and thirty-five) paragraphs are a true copy of the reasons for the decision herein of Member Tigiilagi Eteuati

..........................[SGD].............................................
Associate
Dated: 9 December 2019

Date of hearing:

25 and 26 November 2019

Solicitor of the Applicant:

Mr Joel McComber

Sentry Law

Solicitor for the Respondent:

Ms Hervee Dejean

Australian Government Solicitor

ANNEXURE 1: EXHIBIT REGISTER

File No      2019/5930................................................................................................................
Between     HQTQ..................................................................................................... (Applicant)
And            Minister for Home Affairs................................................................... (Respondent)
Heard on    25 and 26 November 2019
At               Brisbane..................................................................................................................
Before       Member Tigiilagi Eteuati..........................................................................................

EXHIBIT

DESCRIPTION OF EVIDENCE

G1
G Documents received 04 October 2019

R1
Respondent’s Tender Bundle provided to the Tribunal on 12 November 2019

A1
Applicant’s Tender Bundle provided to the Tribunal on 29 October 2019

A2
Statement of the Applicant’s wife provided to the Tribunal on 20 November 2019

A3
Statement of the Chaplain provided to the Tribunal on 20 November 2019

EXHIBIT	DESCRIPTION OF EVIDENCE
G1	G Documents received 04 October 2019
R1	Respondent’s Tender Bundle provided to the Tribunal on 12 November 2019
A1	Applicant’s Tender Bundle provided to the Tribunal on 29 October 2019
A2	Statement of the Applicant’s wife provided to the Tribunal on 20 November 2019
A3	Statement of the Chaplain provided to the Tribunal on 20 November 2019